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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. PACIFIC BELL TELEPHONE CO., dba AT&T CALIFORNIA, et al. v. LINKLINE COMMUNICATIONS, INC., et al. No. 07-512. Argued December 8, 2008 Decided February 25, 2009 Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined. Breyer, J., filed an opinion concurring in the judgment, in which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 457. Aaron M. Fanner argued the cause for petitioners. With him on the briefs was Michael K. Kellogg. Deanne E. Maynard argued the cause for the United States as amicus curiae urging vacatur. With her on the brief were former Solicitor General Garre, Assistant Attorney General Barnett, Deputy Solicitor General Kneedler, Deputy Assistant Attorney General O’Connell, Catherine G. O’Sullivan, and David Seidman. Maxwell M. Blecher argued the cause and filed a brief for respondents. Richard M. Brunell argued the cause and filed a brief as amicus curiae for the American Antitrust Institute. With him on the brief was Albert A. Foer Briefs of amici curiae urging reversal were filed for the Commonwealth of Virginia et al. by Robert F. McDonnell, Attorney General of Virginia, Stephen R. McCullough, State Solicitor General, William C. Mims, Chief Deputy Attorney General, Sarah Oxenham Allen, Assistant Attorney General, and William E. Thro, and by the Attorneys General for their respective States as follows: Troy King of Alabama, John W. Suthers of Colorado, Bill McCollum of Florida, Steve Six of Kansas, Jon C. Bruning of Nebraska, W. A. Drew Edmondson of Oklahoma, Mark L. Shurtleff of Utah, and Robert M. McKenna of Washington; for Abbott Laboratories by Gene C. Schaerr, Steffen N. Johnson, Charles B. Klein, James F. Hurst, and Linda T. Coberly; for Verizon Communications Inc. et al. by John Thorne, Richard G. Taranto, Jan S. Amundson, and Quentin Riegel; and for the Washington Legal Foundation by Mark J. Botti, Daniel J. Popeo, and Richard A. Samp. Briefs of amici curiae were filed for COMPTEL by Samuel L. Feder, Elaine J. Goldenberg, and Mary C. Albert; and for Professors and Scholars in Law and Economics by J. Gregory Sidak and Robert H. Bork, both pro se. Chief Justice Roberts delivered the opinion of the Court. The plaintiffs in this case, respondents here, allege that a competitor subjected them to a “price squeeze” in violation of §2 of the Sherman Act. They assert that such a claim can arise when a vertically integrated firm sells inputs at wholesale and also sells finished goods or services at retail. If that firm has power in the wholesale market, it can simultaneously raise the wholesale price of inputs and cut the retail price of the finished good. This will have the effect of “squeezing” the profit margins of any competitors in the retail market. Those firms will have to pay more for the inputs they need; at the same time, they will have to cut their retail prices to match the other firm’s prices. The question before us is whether such a price-squeeze claim may be brought under § 2 of the Sherman Act when the defendant is under no antitrust obligation to sell the inputs to the plaintiff in the first place. We hold that no such claim may be brought. I This case involves the market for digital subscriber line (DSL) service, which is a method of connecting to the Internet at high speeds over telephone lines. AT&T owns much of the infrastructure and facilities needed to provide DSL service in California. In particular, AT&T controls most of what is known as the “last mile” — the lines that connect homes and businesses to the telephone network. Competing DSL providers must generally obtain access to AT&T’s facilities in order to serve their customers. Until recently, the Federal Communications Commission (FCC) required incumbent phone companies such as AT&T to sell transmission service to independent DSL providers, under the theory that this would spur competition. See In re Appropriate Framework for Broadband Access to Internet Over Wireline Facilities, 20 FCC Red. 14853, 14868 (2005). In 2005, the FCC largely abandoned this forced-sharing requirement in light of the emergence of a competitive market beyond DSL for high-speed Internet service; DSL now faces robust competition from cable companies and wireless and satellite services. Id., at 14879-14887. As a condition for a recent merger, however, AT&T remains bound by the mandatory interconnection requirements, and is obligated to provide wholesale “DSL transport” service to independent firms at a price no greater than the retail price of AT&T’s DSL service. In re AT&T Inc., 22 FCC Red. 5662, 5814 (2007). The plaintiffs are four independent Internet service providers (ISPs) that compete with AT&T in the retail DSL market. Plaintiffs do not own all the facilities needed to supply their customers with this service. They instead lease DSL transport service from AT&T pursuant to the merger conditions described above. AT&T thus participates in the DSL market at both the wholesale and retail levels; it provides plaintiffs and other independent ISPs with wholesale DSL transport service, and it also sells DSL service directly to consumers at retail. In July 2003, the plaintiffs brought suit in District Court, alleging that AT&T violated §2 of the Sherman Act, 15 U. S. C. § 2, by monopolizing the DSL market in California. The complaint alleges that AT&T refused to deal with the plaintiffs, denied the plaintiffs access to essential facilities, and engaged in a “price squeeze.” App. 18-19. Specifically, plaintiffs contend that AT&T squeezed their profit margins by setting a high wholesale price for DSL transport and a low retail price for DSL Internet service. This maneuver allegedly “exclude[d] and unreasonably impede[d] competítion,” thus allowing AT&T to “preserve and maintain its monopoly control of DSL access to the Internet.” Ibid. In Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U. S. 398, 410 (2004), we held that a firm with no antitrust duty to deal with its rivals at all is under no obligation to provide those rivals with a “sufficient” level of service. Shortly after we issued that decision, AT&T moved for judgment on the pleadings, arguing that the plaintiffs’ claims in this case were foreclosed by Trinko. The District Court held that AT&T had no antitrust duty to deal with the plaintiffs, App. to Pet. for Cert. 77a-85a, but it denied the motion to dismiss with respect to the price-squeeze claims, id., at 86a-90a. The court acknowledged that AT&T’s argument “has a certain logic to it,” but held that Trinko “simply does not involve price-squeeze claims.” App. to Pet. for Cert. 86a. The District Court also noted that price-squeeze claims have been recognized by several Circuits and “are cognizable under existing antitrust standards.” Id., at 89a, and n. 27. At the District Court’s request, plaintiffs then filed an amended complaint providing greater detail about their price-squeeze claims. AT&T again moved to dismiss, arguing that price-squeeze claims could only proceed if they met the two established requirements for predatory pricing: below-cost retail pricing and a “‘dangerous probability’” that the defendant will recoup any lost profits. See Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 222-224 (1993). The District Court did not reach the issue whether all price-squeeze claims must meet the Brooke Group requirements, because it concluded that the amended complaint, “generously construed,” satisfied those criteria. App. to Pet. for Cert. 46a-49a, 56a. The court also certified its earlier order for interlocutory appeal on the question whether “Trinko bars price squeeze claims where the parties are compelled to deal under the federal communications laws.” Id., at 56a-57a. On interlocutory appeal, the Court of Appeals for the Ninth Circuit affirmed the District Court’s denial of AT&T’s motion for judgment on the pleadings on the price-squeeze claims, linkline Communications, Inc. v. SBC California, Inc., 503 F. 3d 876 (2007). The court emphasized that “Trinko did not involve a price squeezing theory.” Id., at 883. Because “a price squeeze theory formed part of the fabric of traditional antitrust law prior to Trinko,” the Court of Appeals concluded that “those claims should remain viable notwithstanding either the telecommunications statutes or Trinko.” Ibid. Based on the record before it, the court held that plaintiffs’ original complaint stated a potentially valid claim under § 2 of the Sherman Act. Judge Gould dissented, noting that “the notion of a ‘price squeeze’ is itself in a squeeze between two recent Supreme Court precedents.” Id., at 886. A price-squeeze claim involves allegations of both a high wholesale price and a low retail price, so Judge Gould analyzed each component separately. He concluded that “Trinko insulates from antitrust review the setting of the upstream price.” Id., at 886-887. With respect to the downstream price, he argued that “the retail side of a price squeeze cannot be considered to create an antitrust violation if the retail pricing does not satisfy the requirements of Brooke Group, which set unmistakable limits on what can be considered to be predatory within the meaning of the antitrust laws.” Id., at 887 (citing Brooke Group, supra, at 222-224). Judge Gould concluded that the plaintiffs’ complaint did not satisfy these requirements because it contained no allegations that the retail price was set below cost and that those losses could later be recouped. 503 F. 3d, at 887. Judge Gould would have allowed the plaintiffs to amend their complaint if they could, in good faith, raise predatory pricing claims meeting the Brooke Group requirements. 503 F. 3d, at 887. We granted certiorari, 554 U. S. 916 (2008), to resolve a conflict over whether a plaintiff can bring price-squeeze claims under §2 of the Sherman Act when the defendant has no antitrust duty to deal with the plaintiff. See Covad Communications Co. v. Bell Atlantic Corp., 398 F. 3d 666, 673-674 (CADC 2005) (holding that Trinko bars such claims). We reverse. II This case has assumed an unusual posture. The plaintiffs now assert that they agree with Judge Gould’s dissenting position that price-squeeze claims must meet the Brooke Group requirements for predatory pricing. They ask us to vacate the decision below in their favor and remand with instructions that they be given leave to amend their complaint to allege a Brooke Group claim. In other words, plaintiffs are no longer pleased with their initial theory of the case, and ask for a mulligan to try again under a different theory. Some amici argue that the case is moot in light of this confession of error. They contend that “[w]ith both petitioners and respondents now aligned on [the same] side of the question presented, no party with a concrete stake in this case’s outcome is advocating for the contrary position.” Brief for COMPTEL 6. We do not think this case is moot. First, the parties continue to seek different relief. AT&T asks us to reverse the judgment of the Court of Appeals and remand with instructions to dismiss the complaint at issue. The plaintiffs ask that we vacate the judgment and remand with instructions that they be given leave to amend their complaint. The parties thus continue to be adverse not only in the litigation as a whole, but in the specific proceedings before this Court. Second, it is not clear that the plaintiffs have unequivocally abandoned their price-squeeze claims. In their brief and at oral argument, the plaintiffs continue to refer to their “pricing squeeze claim.” See Brief for Respondents 13. They appear to acknowledge that those claims must meet the Brooke Group requirements, but it is not clear whether they believe the necessary showing can be made in at least partial reliance on the sort of price-squeeze theory accepted by the Court of Appeals. At one point, for example, the plaintiffs suggest that “the DSL transport price” may be pertinent to their claims going forward under the theory of Judge Gould’s dissent; that opinion, however, concluded that Trinko “in essence takes the issu[e] of wholesale pricing out of the case.” 503 F. 3d, at 886. Given this ambiguity, the case before us remains a live dispute appropriate for decision. Cf. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (a party’s voluntary conduct renders a case moot only if it is “ ‘absolutely clear’ ” the party will take that course of action). Amici also argue that we should dismiss the writ of certiorari because of the “lack of adversarial presentation” by an interested party. Brief for COMPTEL 7. To the contrary, prudential concerns favor our answering the question presented. Plaintiffs defended the Court of Appeals’ decision at the certiorari stage, and the parties have invested a substantial amount of time, effort, and resources in briefing and arguing the merits of this case. In the absence of a decision from this Court on the merits, the Court of Appeals’ decision would presumably remain binding precedent in the Ninth Circuit, and the Circuit conflict we granted certiorari to resolve would persist. Two amici have submitted briefs defending the Court of Appeals’ decision on the merits, and we granted the motion of one of those amici to participate in oral argument. 555 U. S. 1029 (2008). We think it appropriate to proceed to address the question presented. Ill A Section 2 of the Sherman Act makes it unlawful to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations.” Ch. 647, 26 Stat. 209,15 U. S. C. §2. Simply possessing monopoly power and charging monopoly prices does not violate § 2; rather, the statute targets “the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” United States v. Grinnell Corp., 384 U. S. 563, 570-571 (1966). As a general rule, businesses are free to choose the parties with whom they will deal, as well as the prices, terms, and conditions of that dealing. See United States v. Colgate & Co., 250 U. S. 300, 307 (1919). But there are rare instances in which a dominant firm may incur antitrust liability for purely unilateral conduct. For example, we have ruled that firms may not charge “predatory” prices — below-cost prices that drive rivals out of the market and allow the monopolist to raise its prices later and recoup its losses. Brooke Group, 509 U. S., at 222-224. Here, however, the complaint at issue does not contain allegations meeting those requirements. App. 10-24. There are also limited circumstances in which a firm’s unilateral refusal to deal with its rivals can give rise to antitrust liability. See Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U. S. 585, 608-611 (1985). Here, however, the District Court held that AT&T had no such antitrust duty to deal with its competitors, App. to Pet. for Cert. 84a-85a, and this holding was not challenged on appeal. The challenge here focuses on retail prices — where there is no predatory pricing — and the terms of dealing — where there is no duty to deal. Plaintiffs’ price-squeeze claims challenge a different type of unilateral conduct in which a firm “squeezes” the profit margins of its competitors. This requires the defendant to be operating in two markets, a wholesale (“upstream”) market and a retail (“downstream”) market. A firm with market power in the upstream market can squeeze its downstream competitors by raising the wholesale price of inputs while cutting its own retail prices. This will raise competitors’ costs (because they will have to pay more for their inputs) and lower their revenues (because they will have to match the dominant firm’s low retail price). Price-squeeze plaintiffs assert that defendants must leave them a “fair” or “adequate” margin between the wholesale price and the retail price. In this case, we consider whether a plaintiff can state a price-squeeze claim when the defendant has no obligation under the antitrust laws to deal with the plaintiff at wholesale. B A straightforward application of our recent decision in Trinko forecloses any challenge to AT&T’s wholesale prices. In Trinko, Verizon was required by statute to lease its network elements to competing firms at wholesale rates. 540 U. S., at 402-403. The plaintiff — a customer of one of Verizon’s rivals — asserted that Verizon denied its competitors access to interconnection support services, making it difficult for those competitors to fill their customers’ orders. Id., at 404-405. The complaint alleged that this conduct in the upstream market violated § 2 of the Sherman Act by impeding the ability of independent carriers to compete in the downstream market for local telephone service. Ibid. We held that the plaintiff’s claims were not actionable under § 2. Given that Verizon had no antitrust duty to deal with its rivals at all, we concluded that “Verizon’s alleged insufficient assistance in the provision of service to rivals” did not violate the Sherman Act. Id., at 410. Trinko thus makes clear that if a firm has no antitrust duty to deal with its competitors at wholesale, it certainly has no duty to deal under terms and conditions that the rivals find commercially advantageous. In this case, as in Trinko, the defendant has no antitrust duty to deal with its rivals at wholesale; any such duty arises only from FCC regulations, not from the Sherman Act. See supra, at 448. There is no meaningful distinction between the “insufficient assistance” claims we rejected in Trinko and the plaintiffs’ price-squeeze claims in the instant case. The Trinko plaintiff challenged the quality of Verizon’s interconnection service, while this case involves a challenge to AT&T’s pricing structure. But for antitrust purposes, there is no reason to distinguish between price and nonprice components of a transaction. See, e. g., American Telephone & Telegraph Co. v. Central Office Telephone, Inc., 524 U. S. 214, 223 (1998) (“Any claim for excessive rates can be couched as a claim for inadequate services and vice versa”). The nub of the complaint in both Trinko and this case is identical— the plaintiffs alleged that the defendants (upstream monopolists) abused their power in the wholesale market to prevent rival firms from competing effectively in the retail market. Trinko holds that such claims are not cognizable under the Sherman Act in the absence of an antitrust duty to deal. The District Court and the Court of Appeals did not regard Trinko as controlling because that case did not directly address price-squeeze claims. 503 F. 3d, at 883; App. to Pet. for Cert. 86a; see also Brief for COMPTEL as Amicus Curiae 27-30. This is technically true, but the reasoning of Trinko applies with equal force to price-squeeze claims. AT&T could have squeezed its competitors’ profits just as effectively by providing poor-quality interconnection service to the plaintiffs, as Verizon allegedly did in Trinko. But a firm with no duty to deal in the wholesale market has no obligation to deal under terms and conditions favorable to its competitors. If AT&T had simply stopped providing DSL transport service to the plaintiffs, it would not have run afoul of the Sherman Act. Under these circumstances, AT&T was not required to offer this service at the wholesale prices the plaintiffs would have preferred. The other component of a price-squeeze claim is the assertion that the defendant’s retail prices are “too low,” Here too plaintiffs’ claims find no support in our existing antitrust doctrine. “[C]utting prices in order to increase business often is the very essence of competition.” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 594 (1986). In cases seeking to impose antitrust liability for prices that are too low, mistaken inferences are “especially costly, because they chill the very conduct the antitrust laws are designed to protect.” Ibid.; see also Brooke Group, 509 U. S., at 226; Cargill, Inc. v. Monfort of Colo., Inc., 479 U. S. 104, 121-122, n. 17 (1986). To avoid chilling aggressive price competition, we have carefully limited the circumstances under which plaintiffs can state a Sherman Act claim by alleging that prices are too low. Specifically, to prevail on a predatory pricing claim, a plaintiff must demonstrate that: (1) “the prices complained of are below an appropriate measure of its rival’s costs”; and (2) there is a “dangerous probability” that the defendant will be able to recoup its “investment” in below-cost prices. Brooke Group, supra, at 222-224. “Low prices benefit consumers regardless of how those prices are set, and so long as they are above predatory levels, they do not threaten competition.” Atlantic Richfield Co. v. USA Petroleum Co., 495 U. S. 328, 340 (1990). In the complaint at issue in this interlocutory appeal, App. 10-24, there is no allegation that AT&T’s conduct met either of the Brooke Group requirements. Recognizing a price-squeeze claim where the defendant’s retail price remains above cost would invite the precise harm we sought to avoid in Brooke Group: Firms might raise their retail prices or refrain from aggressive price competition to avoid potential antitrust liability. See 509 U. S., at 223 (“As a general rule, the exclusionary effect of prices above a relevant measure of cost either reflects the lower cost structure of the alleged predator, and so represents competition on the merits, or is beyond the practical ability of a judicial tribunal to control without courting intolerable risks of chilling legitimate price cutting”). Plaintiffs’ price-squeeze claim, looking to the relation between retail and wholesale prices, is thus nothing more than an amalgamation of a meritless claim at the retail level and a meritless claim at the wholesale level. If there is no duty to deal at the wholesale level and no predatory pricing at the retail level, then a Arm is certainly not required to price both of these services in a manner that preserves its rivals’ profit margins. C Institutional concerns also counsel against recognition of such claims. We have repeatedly emphasized the importance of clear rules in antitrust law. Courts are ill suited “to act as central planners, identifying the proper price, quantity, and other terms of dealing.” Trinko, 540 U. S., at 408. “ 'No court should impose a duty to deal that it cannot explain or adequately and reasonably supervise. The problem should be deemed irremedia[ble] by antitrust law when compulsory access requires the court to assume the day-today controls characteristic of a regulatory agency.”’ Id., at 415 (quoting Areeda, Essential Facilities: An Epithet in Need of Limiting Principles, 58 Antitrust L. J. 841, 853 (1989)); see also Concord v. Boston Edison Co., 915 F. 2d 17, 25 (CA1 1990) (Breyer, C. J.) (“[A]ntitrust courts normally avoid direct price administration, relying on rules and remedies . . . that are easier to administer”). It is difficult enough for courts to identify and remedy an alleged anticompetitive practice at one level, such as predatory pricing in retail markets or a violation of the duty-to-deal doctrine at the wholesale level. See Brooke Group, supra, at 225 (predation claims “requir[e] an understanding of the extent and duration of the alleged predation, the relative financial strength of the predator and its intended victim, and their respective incentives and will”); Trinko, supra, at 408. Recognizing price-squeeze claims would require courts simultaneously to police both the wholesale and retail prices to ensure that rival firms are not being squeezed. And courts would be aiming at a moving target, since it is the interaction between these two prices that may result in a squeeze. Perhaps most troubling, firms that seek to avoid price-squeeze liability will have no safe harbor for their pricing practices. See Concord, supra, at 22 (antitrust rules “must be clear enough for lawyers to explain them to clients”). At least in the predatory pricing context, firms know they will not incur liability as long as their retail prices are above cost. Brooke Group, supra, at 223. No such guidance is available for price-squeeze claims. See, e. g., 3B P. Areeda & H. Hovenkamp, Antitrust Law ¶ 767c, p. 138 (3d ed. 2008) (“[A]ntitrust faces a severe problem not only in recognizing any § 2 [price-squeeze] offense, but also in formulating a suitable remedy”). The most commonly articulated standard for price squeezes is that the defendant must leave its rivals a “fair” or “adequate” margin between the wholesale price and the retail price. See Concord, supra, at 23-25; Alcoa, 148 F. 2d 416, 437-438 (CA2 1945). One of our colleagues has highlighted the flaws of this test in Socratic fashion: “[H]ow is a judge or jury to determine a ‘fair price?’ Is it the price charged by other suppliers of the primary product? None exist. Is it the price that competition ‘would have set’ were the primary level not monopolized? How can the court determine this price without examining costs and demands, indeed without acting like a rate-setting regulatory agency, the rate-setting proceedings of which often last for several years? Further, how is the court to decide the proper size of the price ‘gap?’ Must it be large enough for all independent competing firms to make a ‘living profit,’ no matter how inefficient they may be? . . . And how should the court respond when costs or demands change over time, as they inevitably will?” Concord, supra, at 25. Some amici respond to these concerns by proposing a “transfer price test” for identifying an unlawful price squeeze: A price squeeze should be presumed if the upstream monopolist could not have made a profit by selling at its retail rates if it purchased inputs at its own wholesale rates. Brief for American Antitrust Institute (AAI) 30; Brief for COMPTEL 16-19; see Ray v. Indiana & Mich. Elec. Co., 606 F. Supp. 757, 776-777 (ND Ill. 1984). Whether or not that test is administrate, it lacks any grounding in our antitrust jurisprudence. An upstream monopolist with no duty to deal is free to charge whatever wholesale price it would like; antitrust law does not prohibit lawfully obtained monopolies from charging monopoly prices. Trinko, supra, at 407 (“The mere possession of monopoly power, and the concomitant charging of monopoly prices, is not only not unlawful; it is an important element of the free-market system”). Similarly, the Sherman Act does not forbid — indeed, it encourages — aggressive price competition at the retail level, as long as the prices being charged are not predatory. Brooke Group, 509 U. S., at 223-224. If both the wholesale price and the retail price are independently lawful, there is no basis for imposing antitrust liability simply because a vertically integrated firm’s wholesale price happens to be greater than or equal to its retail price. Amici assert that there are circumstances in which price squeezes may harm competition. For example, they assert that price squeezes may raise entry barriers that fortify the upstream monopolist’s position; they also contend that price squeezes may impair nonprice competition and innovation in the downstream market by driving independent firms out of business. See Brief for AAI 11-15; Concord, supra, at 23-24. The problem, however, is that amici have not identified any independent competitive harm caused by price squeezes above and beyond the harm that would result from a duty-to-deal violation at the wholesale level or predatory pricing at the retail level. See 3A P. Areeda & H. Hovenkamp, Antitrust Law ¶ 767c, p. 126 (2d ed. 2002) (“[I]t is difficult to see any competitive significance [of a price squeeze] apart from the consequences of vertical integration itself”). To the extent a monopolist violates one of these doctrines, the plaintiffs have a remedy under existing law. We do not need to endorse a new theory of liability to prevent such harm. IV Lastly, as mentioned above, plaintiffs have asked us for leave to amend their complaint to bring a Brooke Group predatory pricing claim. We need not decide whether leave to amend should be granted. Our grant of certiorari was limited to the question whether price-squeeze claims are cognizable in the absence of an antitrust duty to deal. The Court of Appeals addressed only AT&T’s motion for judgment on the pleadings on the plaintiffs’ original complaint. For the reasons stated, we hold that the price-squeeze claims set forth in that complaint are not cognizable under the Sherman Act. Plaintiffs have also filed an amended complaint, and the District Court concluded that this complaint, generously construed, could be read as alleging conduct that met the Brooke Group requirements for predatory pricing. App. to Pet. for Cert. 47a-52a, 56a. That order, however, applied the “no set of facts” pleading standard that we have since rejected as too lenient. See Bell Atlantic Corp. v. Twombly, 550 U. S. 544, 561-563 (2007). It is for the District Court on remand to consider whether the amended complaint states a claim upon which relief may be granted in light of the new pleading standard we articulated in Twombly, whether plaintiffs should be given leave to amend their complaint to bring a claim under Brooke Group, and such other matters properly before it. Even if the amended complaint is further amended to add a Brooke Group claim, it may not survive a motion to dismiss. For if AT&T can bankrupt the plaintiffs by refusing to deal altogether, the plaintiffs must demonstrate why the law prevents AT&T from putting them out of business by pricing them out of the market. Nevertheless, such questions are for the District Court to decide in the first instance. We do not address these issues here, as they are outside the scope of the question presented and were not addressed by the Court of Appeals in the decision below. See Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005) (“[W]e are a court of review, not of first view”). * * * Trinko holds that a defendant with no antitrust duty to deal with its rivals has no duty to deal under the terms and conditions preferred by those rivals. 540 U. S., at 409-410. Brooke Group holds that low prices are only actionable under the Sherman Act when the prices are below cost and there is a dangerous probability that the predator will be able to recoup the profits it loses from the low prices. 509 U. S., at 222-224. In this case, plaintiffs have not stated a duty-to-deal claim under Trinko and have not stated a predatory pricing claim under Brooke Group. They have nonetheless tried to join a wholesale claim that cannot succeed with a retail claim that cannot succeed, and alchemize them into a new form of antitrust liability never before recognized by this Court. We decline the invitation to recognize such claims. Two wrong claims do not make one that is right. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Petitioners consist of several corporate entities and subsidiaries, and their names and corporate structures have changed frequently over the course of this litigation. For simplicity, we will refer to all the petitioners as “AT&T.” The Court of Appeals assumed that any duty to deal arose only from FCC regulations, 503 F. 3d 876,878-879, n. 6 (CA9 2007), and the question on which we granted certiorari made the same assumption. Even aside from the District Court’s reasoning, App. to Pet. for Cert. 77a-85a, it seems quite unlikely that AT&T would have an antitrust duty to deal with the plaintiffs. Such a duty requires a showing of monopoly power, but— as the FCC has recognized, In re Appropriate Framework for Broadband Access to Internet Over Wireline Facilities, 20 FCC Red. 14853, 14879-14887 (2005) — the market for high-speed Internet service is now quite competitive; DSL providers face stiff competition from cable companies and wireless and satellite providers. Like the Court of Appeals, 503 F. 3d, at 880, amici argue that price-squeeze claims have been recognized by Courts of Appeals for many years, beginning with Judge Hand’s opinion in United States v. Aluminum Co. of America, 148 F. 2d 416 (CA2 1945) (Alcoa). In that case, the Government alleged that Alcoa was using its monopoly power in the upstream aluminum ingot market to squeeze the profits of downstream aluminum sheet fabricators. The court concluded: “That it was unlawful to set the price of ‘sheet’ so low and hold the price of ingot so high, seems to us unquestionable, provided, as we have held, that on this record the price of ingot must be regarded as higher than a‘fair price.’” Id., at 438. Given developments in economic theory and antitrust jurisprudence since Alcoa, we find our recent decisions in Trinko and Brooke Group more pertinent to the question before us. We note a procedural irregularity with this case: Normally, an amended complaint supersedes the original complaint. See 6 C. Wright & A. Miller, Federal Practice & Procedure §1476, pp. 556-557 (2d ed. 1990). Here, the District Court addressed the amended complaint in its 2005 order, App. to Pet. for Cert. 36a-52a, but the court only certified its 2004 order — addressing the original complaint — for interlocutory appeal, id,., at 56a-57a. Both Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:

sc_petitioner

004

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. TENNESSEE STUDENT ASSISTANCE CORPORATION v. HOOD No. 02-1606. Argued March 1, 2004 Decided May 17, 2004 Daryl J. Brand, Associate Solicitor General of Tennessee, argued the cause for petitioner. With him on the briefs were Paul G. Summers, Attorney General, Michael E. Moore, Solicitor General, Cynthia E. Kinser, Deputy Attorney General, and Marvin E. Clements, Jr. Leonard H. Gerson argued the cause and filed a brief for respondent. Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Jim Petro, Attorney General of Ohio, Douglas R. Cole, State Solicitor, and Elise Porter, Assistant Solicitor, by Anabelle Rodriguez, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective States as follows: William H. Pryor, Jr., of Alabama, Gregg Renkes of Alaska, Terry Goddard of Arizona, Mike Beebe of Arkansas, Bill Lockyer of California, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, Chirles J. Crist, Jr., of Florida, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter of Indiana, Tom Miller of Iowa, Phill Kline of Kansas, Albert B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, G. Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Michael A. Cox of Michigan, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Jon Bruning of Nebraska, Brian Sandoval of Nevada, Peter Heed of New Hampshire, Peter C. Harvey of New Jersey, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Henry Dargan McMaster. of South Carolina, Lawrence E. Long of South Dakota, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Jerry W. Kilgore of Virginia, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, Peggy A. Lautenschlager of Wisconsin, and Patrick J. Crank of Wyoming; and for the Council of State Governments et al. by Richard Ruda and D. Bruce La Pierre. Briefs of amici curiae urging affirmance were filed for the Commercial Law League of America by Robert D. Piliero; for the National Association of Bankruptcy Trustees et al. by Martin P. Sheehan, Robert C. Furr, and Neil C. Gordon; for the National Association of Consumer Bankruptcy Attorneys by Henry J. Sommer; for Susan Block-Lieb et al. by Susan M. Freeman and Richard Lieb; for G. Eric Brunstad, Jr., by Mr. Brunstad, pro se, Rheba Rutkowski, and Susan Kim; for Bernard Katz by P. Anthony Sammons and Allen E. Grimes III; for Bruce H. Mann by Brady C. Williamson; and for Donald J. Spring by C. Hall Swaim, Mitchel Appel-baum, and George W Shuster, Jr. Chief Justice Rehnquist delivered the opinion of the Court. Article I, §8, cl. 4, of the Constitution provides that Congress shall have the power “[t]o establish . .. uniform Laws on the subject of Bankruptcies throughout the United States.” We granted certiorari to determine whether this Clause grants Congress the authority to abrogate state sovereign immunity from private suits. Because we conclude that a proceeding initiated by a debtor to determine the dis-chargeability of a student loan debt is not a suit against the State for purposes of the Eleventh Amendment, we affirm the Court of Appeals’ judgment, and we do not reach the question on which certiorari was granted. I Petitioner, Tennessee Student Assistance Corporation (TSAC), is a governmental corporation created by the Tennessee Legislature to administer student assistance programs. Tenn. Code Ann. § 49-4-201 (2002). TSAC guarantees student loans made to residents of Tennessee and to nonresidents who are either enrolled in an eligible school in Tennessee or make loans through an approved Tennessee lender. §49-4-203. Between July 1988 and February 1990, respondent, Pamela Hood, a resident of Tennessee, signed promissory notes for educational loans guaranteed by TSAC. In February 1999, Hood filed a “no asset” Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Western District of Tennessee; at the time of the filing, her student loans had an outstanding balance of $4,169.31. TSAC did not participate in the proceeding, but Sallie Mae Service, Inc. (Sallie Mae), submitted a proof of claim to the Bankruptcy Court, which it subsequently assigned to TSAC. The Bankruptcy Court granted Hood a general discharge in June 1999. See 11 U. S. C. § 727(a). Hood did not list her student loans in the bankruptcy proceeding, and the general discharge did not cover them. See § 727(b) (providing that a discharge under § 727(a) discharges the debtor from all prepetition debts except as listed in § 523(a)); § 523(a)(8) (providing that student loans guaranteed by governmental units are not included in a general discharge order unless the bankruptcy court determines that excepting the debt from the order would impose an “undue hardship” on the debtor). In September 1999, Hood reopened her bankruptcy petition for the limited purpose of seeking a determination by the Bankruptcy Court that her student loans were dischargeable as an “undue hardship” pursuant to § 523(a)(8). As prescribed by the Federal Rules of Bankruptcy Procedure, Hood filed a complaint against the United States of America, the Department of Education, and Sallie Mae, see Fed. Rules Bkrtcy. Proc. 7001(6) and 7003, and later filed an amended complaint in which she included TSAC and University Account Services as additional defendants and deleted Sallie Mae. The complaint and the amended complaint were served along with a summons on each of the named parties. See Rule 7004. In response, TSAC filed a motion to dismiss the complaint for lack of jurisdiction, asserting Eleventh Amendment sovereign immunity. The Bankruptcy Court denied the motion, holding that 11 U. S. C. § 106(a) was a valid abrogation of TSAC’s sovereign immunity. App. to Pet. for Cert. A-62. TSAC took an interlocutory appeal, see Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 147 (1993), and a unanimous Bankruptcy Appellate Panel of the Sixth Circuit affirmed, 262 B. R. 412 (2001). TSAC appealed the panel’s decision to the United States Court of Appeals for the Sixth Circuit. That court affirmed, holding that the States ceded their immunity from private suits in bankruptcy in the Constitutional Convention, and therefore, the Bankruptcy Clause, U. S. Const., Art. I, §8, cl. 4, provided Congress with the necessary authority to abrogate state sovereign immunity in 11 U. S. C. § 106(a). 319 F. 3d 755, 767 (2003). One judge concurred in the judgment, concluding that TSAC waived its sovereign immunity when it accepted Sallie Mae’s proof of claim. Id., at 768. We granted certiorari, 539 U. S. 986 (2003), and now affirm the judgment of the Court of Appeals. Because we hold that a bankruptcy court’s discharge of a student loan debt does not implicate a State’s Eleventh Amendment immunity, we do not reach the broader question addressed by the Court of Appeals. II By its terms, the Eleventh Amendment precludes suits “in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” For over a century, however, we have recognized that the States’ sovereign immunity is not limited to the literal terms of the Eleventh Amendment. See Hans v. Louisiana, 134 U. S. 1 (1890). Although the text of the Amendment refers only to suits against a State by citizens of another State, we have repeatedly held that an unconsenting State also is immune from suits by its own citizens. See, e. g., id., at 15; Duhne v. New Jersey, 251 U. S. 311, 313 (1920); Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 51 (1944); Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279, 280 (1973); Edelman v. Jordan, 415 U. S. 651 ,662-663 (1974); Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 55 (1996). States, nonetheless, may still be bound by some judicial actions without their consent. In California v. Deep Sea Research, Inc., 523 U. S. 491 (1998), we held that the Eleventh Amendment does not bar federal jurisdiction over in rem admiralty actions when the State is not in possession of the property. In that case, a private corporation located a historic shipwreck, the S. S. Brother Jonathan, in California’s territorial waters. The corporation filed an in rem action in federal court seeking rights to the wreck and its cargo. The State of California intervened, arguing that it possessed title to the wreck and that its sovereign immunity precluded the court from adjudicating its rights. While acknowledging that the Eleventh Amendment might constrain federal courts’ admiralty jurisdiction in some instances, id., at 503 (citing Ex parte New York, 256 U. S. 490 (1921) (New York I); Ex parte New York, 256 U. S. 503 (1921) (New York II); Florida Dept. of State v. Treasure Salvors, Inc., 458 U. S. 670 (1982)), we held that the States’ sovereign immunity did not prohibit in rem admiralty actions in which the State did not possess the res, 523 U. S., at 507-508 (citing e. g., The Davis, 10 Wall. 15 (1870); The Pesaro, 255 U. S. 216 (1921)). The discharge of a debt by a bankruptcy court is similarly an in rem proceeding. See Gardner v. New Jersey, 329 U. S. 565, 574 (1947); Straton v. New, 283 U. S. 318, 320-321 (1931); Hanover Nat. Bank v. Moyses, 186 U. S. 181, 192 (1902); New Lamp Chimney Co. v. Ansonia Brass & Copper Co., 91 U. S. 656, 662 (1876). Bankruptcy courts have exclusive jurisdiction over a debtor’s property, wherever located, and over the estate. See 28 U. S. C. § 1334(e). In a typical voluntary bankruptcy proceeding under Chapter 7, the debtor files a petition for bankruptcy in which he lists his debts or his creditors, Fed. Rule Bkrtcy. Proc. 1007(a)(1); the petition constitutes an order for relief, 11 U. S. C. §301. The court clerk notifies the debtor’s creditors of the order for relief, see Rule 2002(¿), and if a creditor wishes to participate in the debtor’s assets, he files a proof of claim, Rule 3002(a); see 11 U. S. C. § 726. If a creditor chooses not to submit a proof of claim, once the debts are discharged, the creditor will be unable to collect on his unsecured loans. Rule 3002(a); see 11 U. S. C. §726. The discharge order releases a debtor from personal liability with respect to any discharged debt by voiding any past or future judgments on the debt and by operating as an injunction to prohibit creditors from attempting to collect or to recover the debt. §§ 524(a)(1), (2); 3 W. Norton, Bankruptcy Law and Practice 2d §48:1, p. 48-3 (1998) (hereinafter Norton). A bankruptcy court is able to provide the debtor a fresh start in this manner, despite the lack of participation of all of his creditors, because the court’s jurisdiction is premised on the debtor and his estate, and not on the creditors. In re Collins, 173 F. 3d 924, 929 (CA4 1999) (“A federal court’s jurisdiction over the dischargeability of debt... derives not from jurisdiction over the state or other creditors, but rather from jurisdiction over debtors and their estates” (internal quotation marks omitted)); see also Gardner, supra, at 572; In re Ellett, 254 F. 3d 1135, 1141 (CA9 2001); Texas v. Walker, 142 F. 3d 813, 822 (CA5 1998). A bankruptcy court’s in rem jurisdiction permits it to “determinfe] all claims that anyone, whether named in the action or not, has to the property or thing in question. The proceeding is ‘one against the world.’” 16 J. Moore et al., Moore’s Federal Practice § 108.70[1], p. 108-106 (3d ed. 2004). Because the court’s jurisdiction is premised on the res, however, a nonparticipating creditor cannot be subjected to personal liability. See Freeman v. Alderson, 119 U. S. 185, 188-189 (1886) (citing Cooper v. Reynolds, 10 Wall. 308 (1870)). Under our longstanding precedent, States, whether or not they choose to participate in the proceeding, are bound by a bankruptcy court’s discharge order no less than other creditors. In New York v. Irving Trust Co., 288 U. S. 329 (1933), we sustained an order of the Bankruptcy Court which barred the State of New York’s tax claim because it was not filed within the time fixed for the filing of claims. We held that “[i]f a state desires to participate in the assets of a bankrupt, she must submit to the appropriate requirements.” Id., at 333; see also Gardner, supra, at 574 (holding that a State waives its sovereign immunity by filing a proof of claim). And in Van Huffel v. Harkelrode, 284 U. S. 225, 228-229 (1931), we held that the Bankruptcy Court had the authority to sell a debtor’s property “free and clear” of a State’s tax lien. At least when the bankruptcy court’s jurisdiction over the res is unquestioned, cf. United States v. Nordic Village, Inc., 503 U. S. 30 (1992), our cases indicate that the exercise of its in rem jurisdiction to discharge a debt does not infringe state sovereignty. Cf. Hoffman v. Connecticut Dept. of In come Maintenance, 492 U. S. 96, 102 (1989) (plurality opinion) (applying Eleventh Amendment analysis where a Bankruptcy Court sought to issue a money judgment against a nonconsenting State). TSAC concedes that States are generally bound by a bankruptcy court’s discharge order, see Tr. of Oral Arg. 17, but argues that the particular process by which student loan debts are discharged unconstitutionally infringes its sovereignty. Student loans used to be presumptively discharged in a general discharge. But in 1976, Congress provided a significant benefit to the States by making it more difficult for debtors to discharge student loan debts guaranteed by States. Education Amendments of 1976, § 439A(a), 90 Stat. 2141 (codified at 20 U. S. C. § 1087-3 (1976 ed.), repealed by Pub. L. 95-598, §317, 92 Stat. 2678). That benefit is currently governed by 11 U. S. C. § 523(a)(8), which provides that student loan debts guaranteed by governmental units are not included in a general discharge order unless excepting the debt from the order would impose an “undue hardship” on the debtor. See also § 727(b) (providing that a discharge under § 727(a) discharges the debtor from all pre-petition debts except as listed in § 523(a)). Section 523(a)(8) is “self-executing.” Norton §47:52, at 47-137 to 47-138; see also S. Rep. No. 95-989, p. 79 (1978). Unless the debtor affirmatively secures a hardship determination, the discharge order will not include a student loan debt. Norton §47:52, at 47-137 to 47-138. Thus, the major difference between the discharge of a student loan debt and the discharge of most other debts is that governmental creditors, including States, that choose not to submit themselves to the court’s jurisdiction might still receive some benefit: The debtor’s personal liability on the loan may survive the discharge. It is this change that TSAC contends infringes state sovereignty. Tr. of Oral Arg. 15-16. By making a student loan debt presumptively nondischargeable and singling it out for an “individualized adjudication,” id., at 17, TSAC argues that Congress has authorized a suit against a State. But TSAC misunderstands the fundamental nature of the proceeding. No matter how difficult Congress has decided to make the discharge of student loan debt, the bankruptcy court’s jurisdiction is premised on the res, not on the persona; that States were granted the presumptive benefit of nondischargeability does not alter the court’s underlying authority. A debtor does not seek monetary damages or any affirmative relief from a State by seeking to discharge a debt; nor does he subject an unwilling State to a coercive judicial process. He seeks only a discharge of his debts. Indeed, we have previously endorsed individualized determinations of States’ interests within the federal courts’ in rem jurisdiction. In Van Huffel, we affirmed* the bankruptcy courts’ power to sell property free from encumbrances, including States’ liens, and approvingly noted that some courts had chosen specifically to discharge States’ liens for taxes. 284 U. S., at 228; cf 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_natpr

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America ex rel. Leon NEWSOME, Petitioner-Appellee, v. Benjamin J. MALCOLM, New York City Commissioner of Correction, et al., Respondents, Louis J. Lefkowitz, Attorney General of the State of New York, Intervenor-Respondent-Appellant. No. 693, Docket 73-2413. United States Court of Appeals, Second Circuit. Argued Jan. 11, 1974. Decided Jan. 28, 1974. Robert S. Hammer, Asst. Atty. Gen. of the State of New York (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen. on the brief), for intervenorrespondent-appellant. Stanley Neustadter, New York City (William J. Gallagher, The Legal Aid Society, New York City, on the brief), for petitioner-appellee. Before KAUFMAN, Chief Judge and SMITH and FEINBERG, Circuit Judges. IRVING R. KAUFMAN, Chief Judge: This appeal presents the rare instance where by granting a writ of habeas corpus to a state prisoner we intrude less into local administration of criminal justice than if we were to follow the contrary course suggested by the state Attorney General. Judge Bruchhausen granted Leon Newsome’s petition pursuant to 28 U.S.C. 2254 because the loitering statute under which Newsome was arrested has been declared unconstitutional by the New York Court of Appeals. Since Newsome is collaterally attacking a conViction not for loitering, but for a narcotics violation arising from evidence seized at the time of his arrest for loitering, his petition raises an interesting question of Fourth Amendment law. We agree with the New York Court of Appeals in its evaluation of the loitering statute and, because of the particular constitutional infirmities involved, are compelled to, conclude that the writ should issue. We affirm. I. FACTUAL BACKGROUND The essential facts are not in dispute and can be related briefly. On February 12, 1970, New York City Housing Authority Policeman Warren J. Ungar and a fellow officer responded to an anonymous telephone call “to the effect that someone was in the hallway” of a City Housing Authority dwelling at 81-OS Hammel Boulevard, Queens, New York. The patrolmen entered the building at approximately 10:20 p.m. and immediately approached two men — Leon Newsome and an unidentified companion —who were standing in the lobby near the main doorway. In response to Un-gar’s questions, Newsome said he had just entered the building. When New-some was unable to produce identification, he was arrested for loitering (N.Y. Pen.L. 240.35(6), McKinney’s Consol. Laws, c. 40) and searched incident to that arrest. Patrolman Ungar placed Newsome against the wall and “went through the pockets.” This search produced a closed black leather pouch in which Ungar found a functional hypodermic instrument and a glassine envelope later determined to contain 2 grains of heroin. Accordingly, Newsome was also charged with possession of dangerous drugs (N.Y.Pen.L. 220.05) and criminal possession of a hypodermic instrument (N.Y.Pen.L. 220.45). After a brief nonjury trial before Criminal Court Judge Nicholas Tsouca-las on April 7, 1970, Newsome was convicted for loitering. Judge Tsoucalas immediately proceeded to conduct a hearing on Newsome’s motion to suppress the evidence seized at the time of his arrest. Newsome raised and Judge Tsoucalas rejected the same claims at trial and on the motion to suppress: that the patrolmen did not have probable cause to arrest Newsome for loitering and that the loitering statute was unconstitutional and could not therefore serve as the basis for searches incident to arrests. On May 7, 1970, the date scheduled for a trial on the drug charges, Newsome appeared before Judge Abraham Roth and withdrew his prior pleas of not guilty and pleaded guilty to the lesser charge of “attempted possession of dangerous drugs” (N.Y.Pen.L. 110.-05(6)). He was sentenced immediately to 90 days in the City Reception Center, and received an unconditional release for the loitering conviction. The minutes of the May 7 proceedings clearly disclose Newsome’s intention to appeal both the loitering conviction and, pursuant to N.Y.Code Crim.P. 813-c the denial of his motion to suppress. Indeed, at the close of proceedings on May 7, Judge Roth granted a certificate of reasonable doubt (N.Y.Code Crim.P. 527) because “there is a question of law involved here, very serious question of law, with regard to the loitering charge.” On direct appeal to the Appellate Term, the loitering conviction was reversed for insufficient evidence; but because the court found that probable cause existed to arrest New-some for loitering, the search incident to that arrest was held valid and the drug conviction affirmed. Leave to appeal to the New York Court of Appeals was denied and a petition for a writ of certiorari was denied sub nom. Newsome v. New York, 405 U.S. 908, 92 S.Ct. 970, 30 L.Ed.2d 779 (1972). The instant petition for a writ of habeas corpus was filed on April 6, 1972, just five days before Newsome was to begin serving his 90 day sentence (imposition of which had been stayed pending appeal). On July 2, 1973, prior to Judge Bruchhausen’s final disposition on the merits, the New York Court of Appeals in a well-reasoned opinion declared § 240.35(6) unconstitutional on its face because, among other infirmities, it was overly vague. People v. Berck, 32 N.Y.2d 567, 347 N.Y.S.2d 33, 300 N.E.2d 411 (1973), cert. denied sub nom. New York v. Berck, 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973). On July 12, 1973, Judge Bruchhausen granted the writ. The New York State Attorney General, who had not appeared in prior proceedings in this case, requested and was granted leave to intervene as a respondent on the present appeal. II. STANDING As a threshold issue, the Attorney General raises the not unfamiliar claim that Newsome is without standing to pursue his underlying constitutional attacks on the drug conviction because those claims were waived when Newsome pleaded guilty. Ordinarily, it is true that an intelligent and voluntary guilty plea waives a defendant’s right to trial and all claims of constitutional infirmities in the prosecution, which could have been raised at trial. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). But in McMann v. Richardson the Supreme Court noted that an exception to the general waiver rule exists where state law permits a defendant to retain his collateral claims after pleading guilty. 397 U.S. at 766, 90 S.Ct. 1441. New York is one of those states which permit a defendant to appeal specified adverse pretrial rulings even though he subsequently pleads guilty. The operative statutory provision at'the time Newsome pleaded guilty was N.Y.Code Crim.P. 813-c, which stated: “the order denying [a motion to suppress] evidence may be reviewed on appeal from a judgment of conviction notwithstanding the fact that such judgment of conviction is predicated upon a, plea of guilty.” We have characterized the New York procedure as “enlightened” for it permits a defendant whose sole defense is one of the specified constitutional claims neither to suffer nor impose on the state the burden of going to trial simply to preserve his claim — a procedure which precipitated the enactment of § 813-c. See United States ex rel. Rogers v. Warden, 381 F.2d 209, 214 (2d Cir. 1967). This new procedural device manifested obvious legislative determinations that trials are not to be encouraged in order to preserve a ground for appeal and that guilty pleas in such cases would aid in avoiding additions to beleaguered trial calendars. Accordingly, the rule in this circuit is well established that a New York defendant who has utilized § 813-c in the state courts may pursue his constitutional claim on a federal habeas corpus petition, for “it would be anomalous if a defendant by scrupulously following a sanctioned and reasonable state procedure for preserving his federal constitutional claims on appeal in state courts, simultaneously waived his right to present these same claims to a federal court . . . because he was lulled into following state procedures.” Id. at 214-215. See United States ex rel. Stephen J. B. v. Shelly, 430 F.2d 215, 217 & n. 3 (2d Cir. 1970); United States ex rel. Molloy v. Follette, 391 F.2d 231 (2d Cir. 1968). The Attorney General, despite our clear pronouncements on the issue, contends again, as he did in Molloy and Stephen J. B., that we should abandon the rule first announced in Rogers and close the avenue of federal habeas to state petitioners who have entered pleas of guilty under the circumstances we have recounted. Again, we reject this argument and reaffirm our view that where state law permits a defendant to plead guilty without forfeiting his appeals on collateral constitutional claims, it would be a trap to the unwary if a defendant who waived his right to trial in reliance on the state appeal procedures was thereafter precluded from pressing his federal constitutional claims in the district court. We believe, moreover, that were we to nullify the vitality of § 813-c and similar statutes for federal habeas corpus purposes, most defendants with competent counsel would be dissuaded from pleading guilty and instead would proceed to trial for the sole purpose of preserving claims for potential vindication on state review or federal habeas. The New York legislature passed § 813-c to prevent precisely this eventuality and federal courts should be reluctant to interfere with a state’s administration of criminal justice, particularly when the result would be to add to its already congested criminal trial calendars. Accordingly, we refrain from confronting the state courts with a problem the legislature has attempted to ameliorate. We are of the view that the more appropriate forum for the Attorney General to express his dissatisfaction with § 813-c is the state legislature, not the federal courts. As a final attack on our Rogers-Molloy-Stephen J. B. line of cases, the Attorney General contends that Tollett v. Henderson, supra, precludes all state prisoners who pleaded guilty from asserting collateral constitutional claims in federal habeas petitions — notwithstanding state procedures which allow the defendant to retain those claims for purposes of state post-conviction remedies. In our view, Tollett does not stand for this proposition. In Tollett a Tennessee prisoner attacked his 25-year-old conviction (entered after a guilty plea) for first degree murder on the ground that blacks were systematically excluded from the grand jury that indicted him. Tennessee had no procedure analogous to § 813-c for preserving constitutional claims after pleading guilty. The Supreme Court held that: after a criminal defendant pleads guilty, on the advice of counsel, he is not automatically entitled to federal collateral relief on proof that the indicting grand jury was unconstitutionally selected. The focus of federal habeas inquiry is the nature of the advice and voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity. 411 U.S. at 266, 93 S.Ct. at 1607. To be sure, Tollett did not mention the exception cut out in McMann, and to which we have referred, for states which provide for the preservation of constitutional claims, but given the absence of this type of provision in Tennessee law, that question was not before the court in Tol-lett and repetition of the principle would have been superfluous. Accordingly, we refuse to undertake the hazardous task of elevating silence to the level of stare decisis. When, as here, a defendant enters a plea of guilty and then follows acknowledged state procedures for preserving his claims, the guilty plea does not act as an automatic waiver. III. CONSTITUTIONALITY OF NEW YORK’S LOITERING STATUTE Section 240.35 (6) provides: A person is guilty of loitering when he: . . . Loiters, remains or wanders in or about a place without apparent reason and under circumstances which justify suspicion that he may be engaged or about to engage in crime, and, upon inquiry by a peace officer, refuses to identify himself or fails to give a reasonably credible account of his conduct and purposes. We have noted that the New York Court of Appeals has already declared this provision unconstitutional on its face. People v. Berck, supra. In the instant proceeding, the Attorney General urges us, in effect, to instruct the state’s highest court that its evaluation of a state statute was erroneous. Since the state court grounded its decision on the federal rather than the state Constitution, we must make an independent determination of the applicable federal standards. See Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Accordingly, the question before us on this application for federal habeas corpus relief is whether the section violates due process. We conclude that it does. When § 240.35(6) became effective on September 1, 1967, it represented New York’s formulation of a dragnet approach to the maintenance of public order that had its roots in feudal England and which has survived, despite considerable disapproval, in urban America. Originally conceived as a method to keep unemployed laborers from wandering between towns and terrorizing travelers, laws against vagrancy and loitering have been transformed into devices for preventing crime and for removing so-called nuisances — mobs and individual “undesirables”- — from public places. Despite the obvious governmental interest in preserving public order, a vagrancy-loitering statute will run afoul of the Constitution when its necessarily broad scope is stated in language so indefinite that it fails to: “give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066. Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Moreover, because the crime prevention components of loitering statutes are aimed at suspected or potential rather than incipient or observable conduct, they may conflict with the deeply rooted Fourth Amendment requirement that arrests must be predicated on probable cause, Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). See Papachristou v. Jacksonville, supra; Palmer v. Euclid, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971). Indeed, it has been suggested that: because the elements of the . offense are obscure, even officers engaged in its good faith effectuation cannot gauge justification for arrests consistently with Fourth Amendment principles. Hall v. United States, 148 U.S.App.D.C. 42, 459 F.2d 831, 837 (1972) (en banc). Turning from our brief discussion of the history and purposes of vagrancy legislation to the specific statute in issue, we must scrutinize the New York statute in accordance with the standard enunciated in Papachristou, Palmer, and Smith v. Florida, 405 U.S. 172, 92 S.Ct. 848, 31 L.Ed.2d 122 (1972). Under the first prong of the vagueness test (Papachristou v. Jacksonville, supra, 405 U.S. at 162, 92 S.Ct. 839, quoting, United States v. Harriss, supra, 347 U.S. at 617, 74 S.Ct. 808) we must determine whether the statute’s prohibitions are east in terms sufficiently precise to give a reasonably intelligent person notice of the conduct that is proscribed. See Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939). Newsome contends that the operative language is so indefinite that even a citizen who had “read and studied” the statute in an effort to regulate his behavior would be in a quandary. He suggests, moreover, that the linguistic imprecision is exacerbated because § 240.35(6) imposes criminal liability in the absence of criminal intent, a factor noted by the Supreme Court in Papachristou. 405 U.S. at 162, 92 S.Ct. 839. It is urged, therefore, that the elements of loitering may be established by suspicious circumstances of which a citizen may not be cognizant and for which he may bear no responsibility. The Attorney General asserts, on the other hand, that § 240.-35(6) can be distinguished from the statutes disapproved in Papachristou, Palmer, and Smith, because it “focuses upon specifically criminal conduct.” On its face, the statute discloses that “loiter[ing]” “remain[ing]” or “wander [ing]” in an unspecified place for an unspecified period of time without apparent reason can establish the first element of the offense. Surely a citizen who sought to conform his conduct to this provision would be unable to discern whether he risked criminal responsibility by taking a leisurely stroll, by sitting briefly on a park bench, or by seeking shelter from the elements in the doorway of a building. The second substantive component of the statute is established by “circumstances which justify suspicion that [a person] may be engaged or about to engage in crime.” Yet, such “circumstances” may reflect the “whim of the policeman,” People v. Berck, supra, 347 N.Y.S.2d at 38, 300 N.E.2d at 414, rather than the conduct of an individual who happened to “wander” into the midst of the police, thereby creating the “hazard of being prosecuted for knowing but guiltless behavior.” Baggett v. Bullitt, 377 U.S. 360, 373, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377 (1964). With nothing more, the “suspect” is hardly offered a bright line test for distinguishing the licit from the illicit. Moreover, there are insufficient guidelines for enforcement and thus § 240.35(6) does not pass constitutional muster on this ground as well. The section permits arrests and convictions for suspicion or for possible crime based on circumstances less compelling than the reasonable and articulable factors which are required to sustain a mere on-the-scene frisk. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). It has been noted, and we agree, that the section could lend itself to the abuse of pretextual arrests of people who are members of unpopular groups or who are merely suspected of engaging in other crimes, without sufficient probable cause to arrest for the underlying crime. For example, in People v. Williams, 55 Misc.2d 774, 286 N.Y.S.2d 575 (New York City Crim.Ct.1967), the court commented that: these defendants are 41 of a group of alleged prostitutes who have been arrested and detained 2500 times for disorderly conduct and loitering in New York City since August 18th This Court of its own knowledge is aware that except for a few isolated instances where defendants pleaded guilty, the disorderly conduct cases were dismissed. In many instances, “the girls” were arrested after 11:30 P.M., too late to be arraigned, night court had been adjourned, then kept overnight in a cell. In the morning they were brought to Court and released because the offenses for which they had been arrested could not be proven to have been committed by them. 286 N.Y.S.2d at 577. See Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim.L.Bull. 205, 220-28 (1967); Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1, 8 (1960); Lacey, Vagrancy and Other Crimes of Personal Condition, 66 Harv.L.Rev. 1203, 1219-24 (1953). See also Winters v. New York, 333 U.S. 507, 540, 68 S.Ct. 665, 92 L.Ed. 840 (1948) (Frankfurter, J., dissenting). To the extent the statute can be interpreted to support dragnet, street-sweeping operations absent probable cause of actual criminality, it conflicts with established notions of due process. Beck v. Ohio, supra; Henry v. United States, supra; Wong Sun v. United States, 371 U.S. 471, 479-482, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Even in the absence of purposeful circumvention of traditional standards for lawful arrests, § 240.35(6) confers discretion that is simply too unbridled to satisfy due process standards. The “infirmity” lies in the imprecision of the statute, not the subjective intent of enforcement officials. The Supreme Court has noted, “ [w] ell-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law.” Baggett v. Bullitt, supra, 377 U.S. at 373, 84 S.Ct. at 1323. Applying the standards enunciated in Papachristou, Palmer, and Smith, we conclude, as did the New York Court of Appeals in Berck, that § 240.35(6) contravenes the Due Process Clause of the Fourteenth Amendment not only because it fails to specify adequately the conduct it proscribes, but also because it fails to provide sufficiently clear guidance for police, prosecutors, and the courts so that they can enforce the statute in a manner that is consistent with the Fourth Amendment. Accordingly, Newsome’s arrest pursuant to that section was unlawful. IV. SEARCH INCIDENT TO ARREST Having concluded that New-some’s arrest pursuant to an unconstitutional statute was unlawful, we turn our attention to whether the search conducted incident to that arrest was also unlawful. For the reasons set forth, we conclude that the search in this case was constitutionally invalid, that the evidence thus seized must be suppressed and that, accordingly, the writ should issue. Searches incident to arrest comprise a well-recognized exception to the warrant requirement of the Fourth Amendment. This exception, of course, does not reduce the level of constitutional protection because it retains the safeguard that probable cause must exist to justify the intrusiveness of the underlying arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Indeed, in recently expanding the permissible scope of searches incident ' to lawful arrests, the Supreme Court placed great reliance on the existence of probable cause to arrest as a justification for its holding. United States v. Robinson, supra, 414 U.S. at 235, 94 S.Ct. 467; Gustafson v. Florida, supra, 414 U.S. at 265, 94 S.Ct. 488. Newsome, however, was searched incident to arrest for the violation of a statute which we have found unconstitutional in the main because it substituted mere suspicion for probable cause as the basis for arrest. Thus, we consider his warrantless search constitutionally defective because to sustain its validity would emasculate the essential Fourth Amendment protection which only probable cause provides. Accordingly, we affirm. . Patrolman Ungar was the only witness at the loitering trial and the suppression hearing. . Presently codified as N.Y.Crim.Proc.L. 710.70(2). . The Appellate Term disposed of Newsome’s appeal by issuing a summary order which is silent on the constitutional claims. . Although Newsome has not pursued state avenues of collateral attack, his federal claims were presented to the state courts on direct appeal. He has, therefore, satisfied the exhaustion requirement, Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), and the state makes no claim to the contrary. . On May 23, 1972, Judge Bruchhausen dismissed the petition because Newsome was not “in custody” as required by 28 U.S.C. 2241. On appeal, we remanded by summary order (April 26, 1973) (72-1875) for a disposition on the merits, in light of the Supreme Court’s holding on the custody question in Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). . Apparently because of a clerical error, Judge Bruchhausen’s memorandum and order incorrectly indicate that Newsome is attacking a conviction for loitering. As noted above, the loitering conviction was vacated by the Appellate Term and the instant petition attacks the drug conviction. . After a defendant pleads guilty on advice of counsel, “[t]he focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity.” Tollett v. Henderson, supra, 411 U.S. at 266, 93 S.Ct. at 1608. . A companion section, 813-g (presently codified as N.Y.Crim.Proc.L. 710.20(3), 710.-70(2)) permitted similar appeal from the denial of a motion to suppress an allegedly coerced confession. . A split panel of the Ninth Circuit has apparently concluded that the exception noted in McMann has not survived Tollett. Mann v. Smith, 488 F.2d 245 (9th Cir. 1973) petition for cert, pending _ U.S. _, 94 S.Ct. 1445, 39 L.Ed.2d 490 (1973). The language to this effect in the Mann majority opinion must be considered dicta, however, since the petitioner had not in fact availed himself of state post-plea appellate procedures. Mann, supra, at 247 n. 1. The court commented that the failure to appeal in state court coupled with an apparent plea bargain was “more consistent with a relinquishment of his Fourth Amendment claims than an attempt to preserve them.” Id. Although we do not agree with the Ninth Circuit’s reading of Tollett’s impact on McMann, our holding is not inconsistent with the determination that a defendant who fails to invoke available state procedures will not automatically benefit on federal habeas from the mere existence of those procedures. . See generally Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1 (1960); Foote, Vagrancy-Type Law and Its Administration, 104 U.Pa.L.Rev. 603 (1956); Lacey, Vagrancy and Other Crimes of Personal Condition, 66 Harv.L.Rev. 1203 (1953). . As construed by the New York courts, the third condition of § 240.35(6) (“upon inquiry . . . defendant refuses to identify himself or fails to give a reasonably credible account of his conduct and purposes”) is not in fact a substantive element of the crime of loitering. Rather, the police inquiry is a “procedural condition” to arrest under the statute. People v. Schanbarger, 24 N.Y.2d 288, 291-292, 300 N.Y.S.2d 100, 101-102, 248 N.E.2d 16, 17 (1969). See People v. Berck, supra, 347 N.Y.S.2d at 36 n. 2, 300 N.E.2d at 413. . We note, however, that there is no suggestion that Newsome was the target of a pretextual arrest and search, or that the officers failed to act in good faith. . The defects which we find in § 240.35(6), and which were discussed by the New York Court of Appeals in Berch, are neither obscure nor manifestations of recent shifts in the law. The commentary accompanying § 240.35(6) in the New York Penal Law indicates that the subdivision was a new and “controversial” amendment. Subdivision 6 created a catch-all category to supplement other loitering provisions which specify with greater precision the conduct they proscribe. See N.Y.Pen.L. § 240. Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. 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. James E. McCALL v. C. L. SWAIN, Superintendent, Lorton Reformatory, et al., Appellants. No. 73-2013. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 12, 1974. Decided March 20, 1975. David P. Sutton, Asst. Corp. Counsel for the District of Columbia, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellants. Laurence Sarezky, with whom Ricardo M. Urbina, Washington, D. C., was on the brief, for appellee. Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT. Before MOORE, Senior Circuit Judge, and WRIGHT and ROBB, Circuit Judges. Entered an appearance as student counsel pursuant to Rule 20 of the General Rules of this court. Of the Second Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970). . 84 Stat. 473 et seq. (hereinafter cited as “the Court Reform Act”). J. SKELLY WRIGHT, Circuit Judge: We must decide today whether, under the District of Columbia Court Reform and Criminal Procedure Act of 1970, the United States District Court for the District of Columbia or the Superior Court of the District of Columbia has habeas corpus jurisdiction over an individual sentenced for local crimes by the District Court, when the habeas petition challenges the constitutionality of a local prison’s administrative decision to transfer the petitioner to maximum security confinement. We affirm Judge GeselTs ruling that habeas corpus jurisdiction over such cases is exclusively vested in the District Court. I Appellee McCall is confined at the Lorton Correctional Complex, an integral part of the District of Columbia correctional system which, by a special Act of Congress, was constructed outside the District in northwestern Virginia. Convicted of and sentenced for armed robbery and assault with a dangerous weapon by the United States District Court for the District of Columbia, appellee was committed to the custody of the Attorney General who, pursuant to 24 D.C. Code § 425 (1973), designated Lorton as the appropriate facility in which the sentence was to be served. Following appellee’s alleged failure to report to his assigned place of duty at Lorton Reformatory’s Industrial Workhouse for an early morning prisoner count, he was granted a hearing before the prison Disciplinary Committee, which ordered him transferred to maximum security confinement for at least 45 days as punishment for his “lack of cooperation.” Having exhausted all available internal prison remedies, appellee, who claimed the hearing failed to comport with minimal due process standards, petitioned the District Court for a writ of habeas corpus and an order transferring him back to the general prison complex. Ordered to show cause why the requested writ of habeas corpus should not issue, appellants — the Director of the District of Columbia Department of Corrections and the Superintendent of Lorton Reformatory — asserted that except in extreme situations courts should not interfere with internal prison regulations and their enforcement, and that as a proper exercise of prison discipline, the actions taken against appellee were in no way violative of his constitutional rights. On July 16, 1973, at a hearing held by Judge Gesell to consider the merits of the petition, appellants also challenged the District Court’s jurisdiction to entertain the petition, since 16 D.C.Code § 1901(c) (1973) specifies that petitions directed to persons other than federal. officers and employees must be filed in the Superior Court rather than in the District Court. Although Judge Gesell did not believe that failure to join the Attorney General, to whose custody appellee had been committed upon sentencing, affected the outcome of the jurisdictional issue, he ordered the petition amended and the Attorney General joined as a party to the action. After considering the arguments on the jurisdictional question, Judge Gesell rendered an oral opinion holding that the District Court did have jurisdiction to entertain appellee’s petition: [T]he Court feels that any defendant committed by this Court to the Attorney General is at all times under the custody and control and responsibility of the Attorney General and that in the event the Defendant is mistreated or denied rights which he has habeas corpus lies to a Federal Court to protect Federal prisoners. It is on that basis that I propose to proceed, the Attorney General having been brought into these proceedings which were initially simply against the state authorities. I do that in part because of a very definite feeling that Federal Courts must have a continuing interest and responsibility for defendants that are committed under its [sic] aegis to penitentiaries or jails. I do it also because this Court’s efforts to bring about reforms within the D. C. Correctional System have been extraordinarily ineffective and I have no reason to believe that the Superior Court will have any greater success than did this Court in attempting to improve correctional conditions within the D. C. Correctional Department. * * * !{. * * * * I think that this Court has an inherent power to act with respect to prisoners who have been committed by this Court. Judge Gesell then sustained appellee’s petition on the merits and ordered that he be immediately released from maximum security confinement and returned to the general prison population. This appeal, based solely on the jurisdictional aspects of the order, followed. II When Congress enacted the District of Columbia Court Reform and Criminal Procedure Act of 1970, 84 Stat. 473 et seq., it accorded the Superior Court of the District of Columbia jurisdiction “relating to writs of habeas corpus directed to persons other than Federal officers and employees.” 11 D.C.Code § 921(a)(3)(A)(iii) (1973). More specifically, 16 D.C.Code § 1901 (1973) now provides that (a) A person committed, detained, confined, or restrained from his lawful liberty within the District, under any color or pretense whatever, or a person in his behalf, may apply by petition to the appropriate court, or a judge thereof, for a writ of habeas corpus, to the end that the cause of the commitment, detainer, confinement, or restraint may be inquired into. * * * (b) Petitions for writs directed to Federal officers and employees shall be filed in the United States District Court for the District of Columbia. (c) Petitions for writs directed to any other person shall be filed in the Superior Court of the District of Columbia. (Emphasis added.) Although the issue addressed by the trial court, and the main issue • presented to us on this appeal, is whether the habeas corpus petition was directed against “Federal officers and employees” within the meaning of 16 D.C. Code § 1901(b), we feel constrained to first address the issue whether either the District Court or the Superior Court has jurisdiction over this petition, since Section 1901(a) appears to premise jurisdiction on petitioner’s being “committed, detained, confined, or restrained * * within the District,” and the District of Columbia Court of Appeals has construed that section literally to require petitioner’s confinement within the District’s territorial boundaries. See I. B. v. District of Columbia Dept. of Human Resources, Social Services Admin., D.C. Ct.App., 287 A.2d 827, 828-829 (1972). Noting the language of Section 1901 and citing Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948), the I. B. court reached its conclusion on the premise that “the Supreme Court has required that the jurisdictional prerequisites imposed on habeas corpus be construed literally.” 287 A.2d at 828. Although the Court Reform Act rendered the District of Columbia Court of Appeals the “highest court of the District of Columbia,” 11 D.C.Code § 102 (1973), and although we should accord the “greatest deference [to its] decisions,” see M.A.S., Inc. v. Van Curler Broadcasting Corp., D.D.C., 357 F.Supp. 686, 690 (1973), we do not believe such deference is appropriate in construing a statute relating to our own jurisdiction, see, e. g., Holly v. United States, 150 U.S.App.D.C. 287, 290, 464 F.2d 796, 799 (1972) (deference not accorded to DCCA where this court had jurisdiction to resolve criminal appeals on merits and statutory construction involved constitutional considerations), particularly when subsequent developments have indicated that the I. B. court’s reliance on Ahrens is no longer valid. See also Fitzgerald v. Sigler, D.D.C., 372 F.Supp. 889, 895-896 (1974), appeal pending, sub nom. Byrd v. Sigler, D.C.Cir. No. 74-1517. 16 D.C.Code § 1901 was first enacted in 1901 as 16 D.C.Code § 801. See Act of March 3, 1901, ch. 854, § 1143, 31 Stat. 1372. It originally provided: Any person committed, detained, confined, or restrained from his lawful liberty within the District * * * may apply by petition to the supreme court of the District, or any justice thereof, for a writ of habeas corpus, to the end that the cause of such commitment, detainer, confinement, or restraint may be inquired into * * , Despite the “within the District” language, early decisions by this court recognized the right of a habeas corpus petitioner to challenge matters relating to the day-to-day operation of a correctional institution located outside the District but operated under the supervisory control of the District’s Department of Corrections. See, e. g., Burns v. Welch, 81 U.S.App.D.C. 384, 385, 159 F.2d 29, 30 (1947) (inmate at Lorton Reformatory) (dictim); Sanders v. Bennett, 80 U.S.App.D.C. 32, 33, 148 F.2d 19, 20 (1945) (“Since the rule is a practical one based on common sense administration of justice we have held that the courts in the District of Columbia may issue writs of habeas corpus directed to those in direct charge of penal institutions of the District which happen to be located just outside its borders. This is because it is the plain duty of the District to adjudicate matters arising out of the conduct of its own institutions.”) (emphasis added; footnote omitted); cf. Sanders v. Allen, 69 App.D.C. 307, 308-309, 100 F.2d 717, 718-719 (1938) (challenge by inmate of District Workhouse at Occoquan, Virginia to procedural fairness of trial held in District). See also, e. g., Ex parte Flick, D.D.C., 76 F.Supp. 979, 981 (1948) (dictum), affirmed, sub nom. Flick v. Johnson, 85 U.S.App.D.C. 70, 174 F.2d 983, cert. denied, 338 U.S. 879, 70 S.Ct. 158, 94 L.Ed. 539 (1949) (although District Court' may entertain petitions from prisoners confined at Occoquan Workhouse or Lorton Reformatory because “these two institutions are part of the local District of Columbia penal system and are owned by the District of Columbia,” general rule requiring petitioner’s presence within territorial jurisdiction of court precludes entertainment of petition from individual incarcerated in Nuremburg, Germany). These cases were, however, effectively overruled by Ahrens v. Clark, supra, and McAffee v. Clemmer, 84 U.S. App.D.C. 57, 57-58, 171 F.2d 131, 131-132 (1948) (“those holdings [finding jurisdiction in the District Court over habeas corpus petitions filed by inmates of Lorton Reformatory and Occoquan Workhouse] are overruled by the Ahrens ease”). In Ahrens the Supreme Court held that the habeas corpus petitioner’s presence within a federal District Court’s territorial jurisdiction is a prerequisite to the court’s jurisdiction over the petition. Petitioners in that case were 120 Germans being held at Ellis Island, New York for deportation to Germany. They filed their petitions, however, in the United States District Court for the District of Columbia. It is significant that in holding the District Court to be without jurisdiction over petitions filed by individuals confined or restrained outside the territorial jurisdiction of the court, the Supreme Court relied exclusively on the language of the predecessor to 28 U.S.C. § 2441 (1970), the general habeas corpus jurisdictional statute for federal courts, which provided that “[t]he several justices of the Supreme Court and the several judges of the circuit courts of appeal and of the district courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty.” Indeed, the opinion did not even mention the “within the District” language of 16 D.C. Code § 1901, which arguably would have been an easier statute under which to find a territorial limitation on the District Court’s jurisdiction. Ahrens has since been substantially modified by the Supreme Court’s decision in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Again construing the “within their respective jurisdictions” language of 28 U.S.C. § 2241(a) (1970), the Braden Court held that “[s]o long as the custodian can be reached by service of process, the court can issue a writ ‘within its jurisdiction’ requiring that the prisoner be brought before the court for a hearing on his claim * * * even if the prisoner himself is confined outside the court’s territorial jurisdiction.” 410 U.S. at 495, 93 S.Ct. at 1130. “[W]e can no longer view [Ahrens] as establishing an inflexible jurisdictional rule.” Id. at 499 — 500, 93 S.Ct. at 1132. Venue considerations rather than an arbitrary jurisdictional obstacle would thereafter be employed to serve the policies which underlay the Ahrens decision. The Braden rule, which involves a balancing of interests “[i]n terms of traditional venue considerations” and which looks to the “most desirable forum for the adjudication of the [habeas] claim,” see 410 U.S. at 493, 93 S.Ct. at 1129, has been adopted by this court. See, e. g., Eisel v. Secretary of the Army, 155 U.S.App.D.C. 366, 477 F.2d 1251 (1973) (determination of proper habeas forum for proceedings brought by commissioned inactive armed forces reservists seeking to obtain discharge as conscientious objectors). See also Reese v. United States Board of Parole, 162 U.S.App.D.C. 156, 158, 498 F.2d 698, 700 (1974) (habeas jurisdiction under 28 U.S.C. § 2241 lies within Arizona, where appellant was incarcerated, and District of Columbia, the judicial district where the custodian of the confinement was present; case remanded to District Court with instructions to transfer petition to United States District Court for the District of Arizona, a more convenient forum). Yet none of the post-Braden cases have considered the language of 16 D.C.Code § 1901 to be more restrictive than the language of 28 U.S.C. § 2241. Indeed, 16 D.C.Code § 1909 (1973) explicitly provides that “[t]his chapter [on habeas corpus within the District] does not affect any provision of chapter 153 of Title 28, United States Code [the federal habeas corpus chapter which includes. 28 U.S.C. § 2241].” The revision ndtes to Section 1909 clarify the congressional purpose in enacting it in 1964: Section is new, and is inserted for the purpose of construction. Chapter 153 of Title 28, United States Code, also relates to habeas corpus and applies to Federal courts generally, including the United States District Court for the District of Columbia. Upon the reenactment of the provisions carried into this chapter, they will constitute a later enactment than Title 28, United States Code, which was enacted in 1948. Considering the local character of the provisions carried into this chapter, there should not arise, as a general rule, even without this section, any question of conflict. However, this section is inserted as a precautionary measure. It is therefore evident that Section 1901 does not restrict the jurisdiction of the District Court here in any way in which a federal District Court located elsewhere is not restricted. At most, Section 1901 is an additional jurisdictional statute relating to particular local problems and its “within the District” language should be construed in pari materia with the “within their respective jurisdictions” language of 28 U.S.C. § 2241. Thus, since 28 U.S.C. § 2241 has been interpreted by Braden and Eisel to allow federal District Courts with jurisdiction over the custodian to entertain habeas petitions from prisoners who are not physically confined within the territorial jurisdiction of the court, we hold that the phrase “within the District” does not prohibit a court — whether the District Court or the Superior Court — located in the District from entertaining habeas corpus petitions from individuals confined within the District’s correctional facilities located outside the District limits. In effect the Braden decision has resurrected the Sanders v. Bennett line of cases, and in light of the close nexus between the District and the correctional facilities it operates, traditional venue considerations indicate that this is the most appropriate jurisdiction in which to litigate those claims. Ill Having determined that a court within the District may entertain appellee’s habeas petition, we must address the issue decided by District Judge Ge-sell: does the Superior Court or the District Court have exclusive jurisdiction over a habeas petition filed within the District by a person serving a District Court sentence for local crimes, when the petition challenges the legality of the local prison’s administrative decision to transfer the petitioner to maximum security confinement. Since there is no pertinent legislative history disclosing congressional intent as to what individuals constitute “Federal officers and employees” within the meaning of Section 1901, we must look to the interpretation of that term in other contexts and to the policies underlying the Court Reform Act in order to determine whether this petition was properly entertained by the District Court. As early as 1815, in an action of debt brought against a federal marshal for the escape of a federal prisoner from the state jailer to whose custody he had been committed, the Supreme Court observed in dictum that [f]or certain purposes, and to certain intents, the state jail lawfully used by the United States, may be deemed to be the jail of the United States, and that keeper to be the keeper of the United States. Randolph v. Donaldson, 13 U.S. (9 Cranch) 76, 86, 3 L.Ed. 662 (1815). See also, e. g., Fanning v. United States, 4 Cir., 72 F.2d 929, 931 (1934) (“state jail officers, in executing writs of a federal court, are officers of that court and subject to punishment for contempt for disobedience of warrants committing prisoners to their custody”); Wilson v. United States, 8 Cir., 26 F.2d 215, 216 (1928) (a state “jailer and his assistants, in holding a federal prisoner [under a statute admitting federal prisoners to the state’s jails for detention ], become pro hac vice officers of the United States court”; federal courts have statutory power to punish as a contempt “the misbehavior of any of the officers of said courts in their official transactions”); Ex parte Shores, N.D.Iowa, 195 F. 627, 630 (1912) (punishment of state jailer for contempt for disobedience of federal court’s order committing federal prisoner to his custody; “the [state jails], therefore, may be deemed jails of the United States * * * and the keepers thereof, though not strictly officers of the United States, are keepers for the United States of the prisoners committed to said jails by the courts of the United States”); In re Birdsong, S.D.Ga., 39 F. 599, 600 (1889); United States v. Martin, D.Ore., 17 F. 150, 153-155 (1883). In Reid v. Covert, 351 U.S. 487, 76 S.Ct. 880, 100 L.Ed. 1352 (1956), reversed on other grounds after rehearing, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), the Supreme Court addressed the question whether the superintendent of the District of Columbia jail was an “officer or employee” of the United States within the meaning of 28 U.S.C. § 1252 (1970) with respect to the dependent wife of a United States Air Force sergeant who was transferred to that jail while awaiting retrial by court-martial at an air base in Washington, D. C. In holding the superintendent to be such an officer, the Court declared: It has long been settled that an officer, while holding prisoners for the United States, is the “keeper of the United States,” Randolph v. Donaldson, 9 Cranch 76, 86, 3 L.Ed. 662, and, as such, is an officer of the United States. Since [the Superintendent] was required to “receive and keep” prisoners of the United States, he is, to that extent, an officer of the United States. It is not necessary to say, and we do not say, that the District of Columbia in these circumstances is an “agency” of the United States. For, whether the Government should maintain its own jail in the District of Columbia, or utilize the local facilities, is simply a matter of administrative convenience * * *. For all practical purposes, the District of Columbia jail is, in this case, the “jail of the United States,” Randolph v. Donaldson, supra, and the superintendent is its keeper. As the custodian of Mrs. Covert [the habeas corpus petitioner], a federal prisoner, appellant is an officer or employee of the United States for purposes of § 1252. 351 U.S. at 489-490, 76 S.Ct. at 882 (emphasis added). This court, in the context of holding that the Attorney General’s congressional authorization to commit federal prisoners to the District of Columbia jail did not preclude a prisoner from availing himself of the Federal Tort Claims Act for an injury sustained in that jail, observed: Since the Congress has clearly committed the custody and safekeeping of federal prisoners upon conviction to the Attorney General, then it must be true that in this instance the D.C. jailer was serving as the Attorney General's jailer; and it must also be true, or at least it does not appear to the contrary in the record before us, that, as to this federal prisoner, the Attorney General had some degree of power, commensurate with his continuing responsibility, to supervise the D.C. jailer in his handling of this particular prisoner. We note in this regard that, for purposes of the FTCA, Congress has defined “Employee of the [federal] government” as including “persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.” * * * Close v. United States, 130 U.S.App.D.C. 125, 126, 397 F.2d 686, 687 (1968) (per curiam) (emphasis added). See also Witt v. United States, 2 Cir., 462 F.2d 1261, 1264 (1972); Fitzgerald v. Sigler, D.D.C., 372 F.Supp. 889, 896 (1974) (immediate custodian of federal prisoner detained at Lorton is “Federal officer” within meaning of 16 D.C.Code § 1901 with respect to habeas petition challenging detainer lodged against petitioner by United States Board of Parole based upon unexecuted parole violator warrant). Similarly in our case, appellee was committed by the District Court to the custody of the Attorney General, who in turn ordered appellee incarcerated, pursuant to the discretionary power vested in him by Congress, at the Lorton Reformatory. As delegates or agents of the Attorney General, appellants are performing the functions with which he is legally charged; as such, particularly in light of the uniformity of those opinions holding the custodian of a federal prisoner to be a federal officer with respect to that prisoner, they must be deemed to be “Federal officers or employees” within the meaning of 16 D.C. Code § 1901. Congress must have been aware of those numerous precedents establishing the principle that state officials assuming responsibility for executing a warrant of commitment issued by a federal court are officers of that court and therefore “federal” officers for purposes of a variety of statutes; since Congress failed to expressly alter these precedents, we consider them viable in this analogous context. Appellants nevertheless argue that “the basic aim of the Court Reform Act * * * was to provide for the resolution of distinctively local problems by a newly created local judiciary,” and that, since appellee “is not claiming procedural or constitutional irregularities either in connection with a federally imposed sentence or federal judicial proceedings * * * [but] is claiming that his constitutional rights were violated in connection with the internal operation of a prison by District officials,” habeas should lie in the Superior Court. In effect, appellants’ claim is that these policies inherent in the Act implicitly dictate that they not be deemed “Federal officers” with respect to appellee. Admittedly, the “overriding intent of Congress [in enacting the Court Reform Act was] to create a largely independent local court system,” Bland v. Rodgers, D.D.C., 332 F.Supp. 989, 991 (1971), and sources cited therein. See also, e. g., Palmore v. United States, 411 U.S. 389, 406-409, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973). And within that system, federal courts were to exhibit “the customary deference accorded to the local administration of local matters.” See, e. g., Williams, District of Columbia Court Reorganization, 1970, 59 Geo.L.J. 477, 499 (1971). However, we believe that the interpretation of 16 D.C.Code § 1901 which places habeas corpus jurisdiction in the District Court with respect to all petitions filed by those individuals convicted by that court is consistent with these legislative goals. In response to appellants’ contention that they should not be considered “Federal officers and employees” with respect to petitioner because they are engaged in the daily operation of a correctional facility committed to the control of local authorities, it should be emphasized that the mere fact that an individual is incarcerated in a prison committed to operation by local officials, and is challenging their actions in the daily administration of that prison, does not preclude the exercise of federal habeas jurisdiction by other federal District Courts. Under 18 U.S.C. § 4082(a) (1970), a “person convicted of an offense against the United States shall be committed * * * to the custody of the Attorney General of the United States, who shall designate the place of confinement where the sentence shall be served.” Such confinement may be in an institution operated by state officials, since 18 U.S.C. § 4082(b) (1970) specifies that the “Attorney General may designate as a place of confinement any available, suitable, and appropriate institution or facility, whether maintained by Congress contemplated, that such confinement might occur relatively frequently, for it specified in 18 U.S.C. § 4002 (1970) that “[f]or the purpose of providing suitable quarters for the safekeeping, care, and subsistence of all persons held under authority of any enactment of Congress, the Director of the Bureau of Prisons may contract, for a period not exceeding three years, with the Federal Government or otherwise, * * * and may at any time transfer a person from one place of confinement to another.” (Emphasis added.) Indeed, the proper authorities of any State, Territory, or political subdivision thereof, for the imprisonment, subsistence, care and proper employment of such persons.” In any jurisdiction other than the District of Columbia, it would be beyond contention that an individual convicted and sentenced in a federal court, but ordered committed to such a state-operated facility by the Attorney General, could bring a habeas petition challenging certain actions by prison officials in the relevant federal District Court without first exhausting available state remedies. Under 28 U.S.C. § 2241 (1970), federal District Courts are empowered to issue writs of habeas corpus when, inter alia, a prisoner “is in custody under or by color of the authority of the United States”, id. § 2241(c)(1), or “is in custody * * * in pursuance of * * an order, process, judgment or decree of a court or judge of the United States,” id. § 2241(c)(2). And the exhaustion of state remedies requirement of 28 U.S.C. § 2254 (1970) would not apply to such a prisoner, since that provision only applies to “a person in custody pursuant to the judgment of a State court.” It should thus be clear that a prisoner, convicted by a federal court in another jurisdiction and ordered incarcerated in a state prison by the Attorney General, would have immediate access to a federal forum even for habeas petitions which properly concern the day-to-day administration of the institution by local officials. To deny such access to an individual convicted of a federal crime in a federal court in this jurisdiction, but incarcerated in a locally administered facility by designation of the Attorney General, merely because the basis of the petition was a prison disciplinary matter, would likely constitute a denial of equal protection. Thus, in light of 16 D.C.Code § 1909, which specifies that the District habeas provisions are not to be construed to restrict the general federal habeas provisions and considering the principle that Congress is presumed to have enacted constitutionally permissible legislation, we would not construe Section 1901 to prevent an individual convicted of federal crimes in the District Court from petitioning that court to exercise a continuing supervisory role over his treatment during the period of his incarceration. Cf. United States v. Thompson, 147 U.S.App.D.C. 1, 4-12, 452 F.2d 1333, 1336 — 1344 (1971) (construction of post-conviction bail provisions of Court Reform Act). If that incarceration is in an institution under local control, “the D.C. jailer [is] serving as the Attorney General’s jailer” and is amenable to. suit in District Court as a “Federal officer or employee” within the comprehension of Section 1901. Thus the fact that the writ challenges the daily disciplinary actions of prison officials is not a factor compelling the statutory construction urged by appellants. Of course the mere fact that the District Court may, in certain instances, entertain habeas petitions that affect the day-to-day administration of local correctional facilities does not necessarily mean that it may do so with respect to an individual convicted of local crimes by the District Court. Such an individual does not stand in exactly the same position as an individual convicted in District Court of a federal crime either before or after the Court Reform Act was passed, so the above equal protection argument would be in-apposite. Due to the unique status of the District of Columbia, the District Court before the Court Reform Act in effect functioned as both a local and federal court and, as already noted, the intent of the Act was to create a local judicial system that would place prosecution of crime in the District on the same footing as in other states. See, e. g., Palmore v. United States, supra, 411 U.S. at 392-393 n. 2, 407-409, 93 S.Ct. 1670. Appellants’ contention could thus be interpreted as an assertion that the Superior Court undertook all functions that a state court would perform, and that all actions which the District Court executed before the Court Reform Act but which would be taken by the Superior Court after that Act should be considered to' have been done by the Superior Court in the first instance. Appellee, who stands convicted of local crimes, would under this analysis be treated as an individual convicted in a state court who must first exhaust state remedies before filing a habeas petition in federal court. We find this argument to be no more persuasive than the “local prison administration” argument in determining whether appellants were acting as “Federal officers and employees” with respect to appellee. Although local courts existed prior to the Court Reform Act, Congress had deliberately chosen to invest the federal courts with the responsibility of trying local crimes. This congressional distribution of judicial power was a legitimate exercise of Congress’ Article III power to establish inferior courts and its plenary Article I powers with respect to governing the District, cf., e. g., Palmore v. United States, supra, 411 U.S. at 397-403, 405-407, 93 S.Ct. 1670, 36 L.Ed.2d 342, and reflected the fact that “the District is truly sui generis in our governmental structure.” Cf. District of Columbia v. Carter, 409 U.S. 418, 432, 93 S.Ct. 602, 610, 34 L.Ed.2d 613 (1 Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

sc_adminactionstate

38

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the state agency associated with the administrative action that occurred prior to the onset of litigation. JONES, SECRETARY, DEPARTMENT OF CORRECTION OF NORTH CAROLINA, et al. v. NORTH CAROLINA PRISONERS’ LABOR UNION, INC. No. 75-1874. Argued April 19, 1977 Decided June 23, 1977 Rehnquist, J., delivered the opinion of the Court, in which BuRGer, C. J., and Stewart, White, Blackmun, and Powell, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 136. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 138. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p._ 139. Jacob L. Safron, Special Deputy Attorney General of North Carolina, argued the cause for appellants. With him on the brief was Rufus L. Edmisten, Attorney General. Norman B. Smith argued the cause for appellee. With him on the brief was Deborah Mailman. Kenneth S. Getter argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Friedman, Assistant Attorney General Thornburgh, and Jerome M. Feit. The Prisoners’ Union, Inc., filed a brief as amicus curiae urging affirmance. MR. Justice Rehnquist delivered the opinion of the Court. Pursuant to regulations promulgated by the North Carolina Department of Correction, appellants prohibited inmates from soliciting other inmates to join appellee, the North Carolina Prisoners’ Labor Union, Inc. (Union), barred all meetings of the Union, and refused to deliver packets of Union publications that had been mailed in bulk to several inmates for redistribution among other prisoners. The Union instituted this action, based on 42 U. S. C. § 1983, to challenge these policies. It alleged that appellants’ efforts to prevent the operation of a prisoners’ union violated the First and Fourteenth Amendment rights of it and its members and that the refusal to grant the Union those privileges accorded several other organizations operating within the prison system deprived the Union of equal protection of the laws. A three-judge court was convened. After a hearing, the court found merit in the Union’s free speech, association, and equal protection arguments, and enjoined appellants from preventing inmates from soliciting other prisoners to join the Union and from “refus[ing] receipt of the Union’s publications on the ground that they are calculated to encourage membership in the organization or solicit joining.” The court also held that the Union “shall be accorded the privilege of holding meetings under such limitations and control as are neutrally applied to all inmate organizations . . . .” 409 F. Supp. 937. We noted probable jurisdiction to consider whether the First and Fourteenth Amendments extend prisoner labor unions such protection. 429 U. S. 976. We have decided that they do not, and we accordingly reverse the judgment of the District Court. I Appellee, an organization self-denominated as a Prisoners’ Labor Union, was incorporated in late 1974, with a stated goal of “the promotion of charitable labor union purposes” and the formation of a “prisoners’ labor union at every prison and jail in North Carolina to seek through collective bargaining . . . to improve . . . working . . . conditions. ...” It also proposed to work toward the alteration or elimination of practices and policies of the Department of Correction which it did not approve of, and to serve as a vehicle for the presentation and resolution of inmate grievances. By early 1975, the Union had attracted some 2,000 inmate “members” in 40 different prison units throughout North Carolina. The State of North Carolina, unhappy with these developments, set out to prevent inmates from forming or operating a “union.” While the State tolerated individual “membership,” or belief, in the Union, it sought to prohibit inmate solicitation of other inmates, meetings between members of the Union, and bulk mailings concerning the Union from outside sources. Pursuant to a regulation promulgated by the Department of Correction on March 26, 1975, such solicitation and group activity were proscribed. Suit was filed by the Union in the United States District Court for the Eastern District of North Carolina on March 18, 1975, approximately a week before the date upon which the regulation was to take effect. The Union claimed that its rights, and the rights of its members, to engage in protected free speech, association, and assembly activities were being infringed by the no-solicitation and no-meeting rules. It also alleged a deprivation of equal protection of the laws in that the Jaycees and Alcoholics Anonymous were permitted to have meetings and other organizational rights, such as the distribution of bulk mailing material, that the Union was being denied. A declaratory judgment and injunction against continuation of these restrictive policies were sought, as were substantial damages. °A three-judge District Court, convened pursuant to 28 U. S. C. §§ 2281 and 2284, while dismissing the Union’s prayers for damages and attorney’s fees, granted it substantial injunctive relief. The court found that appellants “permitted” inmates to join the Union, but “oppose{d] the solicitation of other inmates to join,” either by inmate-to-inmate solicitation or by correspondence. 409 F. Supp., at 941. The court noted, id., at 942: “[Appellants] sincerely believe that the very existence of the Union will increase the burdens of administration and constitute a threat of essential discipline and control. They are apprehensive that inmates may use the Union to establish a power bloc within the inmate population which could be utilized to cause work slowdowns or stoppages or other undesirable concerted-activity.” The District Court concluded, however, that there was “no consensus” among experts on these matters, and that it was “left with no firm conviction that an association of inmates is necessarily good or bad . . . .” Id., at 942-943. The court felt that since appellants countenanced the bare fact of Union membership, it had to allow solicitation activity, whether by inmates or by outsiders: “We are unable to perceive why it is necessary or essential to security and order in the prisons to forbid solicitation of membership in a union permitted by the authorities. This is not a case of riot. There is not one scintilla of evidence to suggest that the Union has been utilized to disrupt the operation of the penal institutions.” Id., at 944. The other questions, respecting the bulk mailing by the Union of literature into the prisons for distribution and the question of meetings of inmate members, the District Court resolved against appellants “by application of the equal protection clause of the fourteenth amendment.” Ibid. Finding that such meetings and bulk mailing privileges had been permitted the Jaycees, Alcoholics Anonymous, and, in one institution, the Boy Scouts, the District Court concluded that appellants “may not pick and choose depending on [their] approval or disapproval of the message or purpose of the group” unless “the activity proscribed is shown to be detrimental to proper penological objectives, subversive to good discipline, or otherwise harmful.” Ibid. The court concluded that appellants had failed to meet this burden. Appropriate injunctive relief was thereupon ordered. II A The District Court, we believe, got off on the wrong foot in this case by not giving appropriate deference to the decisions of prison administrators and appropriate recognition to the peculiar and restrictive circumstances of penal confinement. While litigation by prison inmates concerning conditions of confinement, challenged other than under the Eighth Amendment, is of recent vintage, this Court has long recognized that "[1] awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U. S. 266, 285 (1948); see also Pell v. Procunier, 417 U. S. 817, 822 (1974); Wolff v. McDonnell, 418 U. S. 539, 555 (1974). The fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration. We noted in Pell v. Procunier, supra, at 822: “[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law.” Perhaps the most obvious of the First Amendment rights that are necessarily curtailed by confinement are those associational rights that the First Amendment protects outside of prison walls. The concept of incarceration itself entails a restriction on the freedom of inmates to associate with those outside of the penal institution. Equally as obvious, the inmate’s “status as a prisoner” and the operational realities of a prison dictate restrictions on the associational rights among inmates. Because the realities of running a penal institution are complex and difficult, we have also recognized the wide-ranging deference to be accorded the decisions of prison administrators. We noted in Procunier v. Martinez, 416 U. S. 396, 405 (1974): “[CJourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities.” (Footnote omitted.) See also Cruz v. Beto, 405 U. S. 319, 321 (1972). It is in this context that the claims of the Union must be examined. B State correctional officials uniformly testified that the concept of a prisoners’ labor union was itself fraught with potential dangers, whether or not such a union intended; illegally, to press for collective-bargaining recognition. Appellant Ralph Edwards, the Commissioner of the Department of Correction, stated in his affidavit: “The creation of an inmate union will naturally result in increasing the existing friction between inmates and prison personnel. It can also create friction between union inmates and non-union inmates.” Appellant David Jones, the Secretary of the Department of Correction, stated: “The existence of a union of inmates can create a divisive element within the inmate population. In a time when the units are already seriously over-crowded, such an element could aggravate already tense conditions. The purpose of the union may well be worthwhile projects. But it is evident that the inmate organizers could, if recognized as spokesman for all inmates, make themselves to be power figures among the inmates. If the union is successful, these inmates would be in a position to misuse their influence. After the inmate union has become established, there would probably be nothing this Department could do to terminate its existence, even if its activities became overtly subversive to the functioning of the Department. Work stoppages and mutinies are easily foreseeable. Riots and chaos would almost inevitably result. Thus, even if the purposes of the union are as stated, in the complaint, the potential for a dangerous situation exists, a situation which could not be brought under control.” The District Court did not reject these beliefs as fanciful or erroneous. It, instead, noted that they were held “sincerely,” and were arguably correct. 409 F. Supp., at 942-943. Without a showing that these beliefs were unreasonable, it was error for the District Court to conclude that appellants needed to show more. In particular, the burden was not on appellants to show affirmatively that the Union would be “detrimental to proper penological objectives” or would constitute a “present danger to security and order.” Id., at 944A945. Rather, “[s]uch considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Pell v. Procunier, 417 U. S., at 827. The necessary and correct result of our deference to the informed discretion of prison administrators permits them, and not the courts, to make the difficult judgments concerning institutional operations in situations such as this. The District Court, however, gave particular emphasis to what it viewed as appellants’ tolerance of membership by inmates in the Union as undermining appellants’ position. It viewed a system which permitted inmate “membership” but prohibited inmate-to-inmate solicitation (as well, it should be noted, as meetings, or other group activities) as bordering “on the irrational,” and felt that “[t]he defendants’ own hypothesis in this case is that the existence of the Union and membership in it are not dangerous, for otherwise they would surely have undertaken to forbid membership.” 409 F. Supp., at 944. This, however, considerably overstates what appellants’ concession as to pure membership entails. Appellants permitted membership because of the reasonable assumption that each individual prisoner could believe what he chose to believe, and that outside individuals should be able to communicate ideas and beliefs to individual inmates. Since a member qua member incurs no dues or obligations — a prisoner apparently may become a member simply by considering himself a member — this position simply reflects the concept that thought control, by means of prohibiting beliefs, would not only be undesirable but impossible. But appellants never acquiesced in, or permitted, group activity of the Union in the nature of a functioning organization of the inmates within the prison, nor did the District Court find that they had. It is clearly not irrational to conclude that individuals may believe what they want, but that concerted group activity, or solicitation therefor, would pose additional and unwarranted problems and frictions in the operation of the State’s penal institutions. The ban on inmate solicitation and group meetings, therefore, was rationally related to the reasonable, indeed to the central, objectives of prison administration. Cf. Pell v. Procunier, supra, at 822. C The invocation of the First Amendment, whether the asserted rights are speech or associational, does not change this analysis. In a prison context, an inmate does not retain those First Amendment rights that are "inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, supra, at 822. Prisons, it is obvious, differ in numerous respects from free society. They, to begin with, are populated, involuntarily, by people who have been found to have violated one or more of the criminal laws established by society for its orderly governance. In seeking a “mutual accommodation between institutional needs and objectives [of prisons] and the provisions of the Constitution that are of general application,” Wolff v. McDonnell, 418 U. S., at 556, this Court has repeatedly recognized the need for major restrictions on a prisoner’s rights. See, e. g., id., at 561-562; Lanza v. New York, 370 U. S. 139, 143 (1962). These restrictions have applied as well where First Amendment values were implicated. See, e. g., Pell v. Procunier, supra; Procunier v. Martinez, 416 U. S. 396 (1974); Meachum v. Fano, 427 U. S. 215 (1976). An examination of the potential restrictions on speech or association that have been imposed by the regulations under challenge, demonstrates that the restrictions imposed are reasonable, and are consistent with the inmates' status as prisoners and with the legitimate operational considerations of the institution. To begin with, First Amendment speech rights are barely implicated in this case. Mail rights are not themselves implicated; the only question respecting the mail is that of bulk mailings. The advantages of bulk mailings to inmates by the Union are those of cheaper rates and convenience. While the District Court relied on the cheaper bulk mailing rates in finding an equal protection violation, infra, at 133, it is clear that losing these cost advantages does not fundamentally implicate free speech values. Since other avenues of outside informational flow by the Union remain available, the prohibition on bulk mailing, reasonable in the absence of First Amendment considerations, remains reasonable. Cf. Pell v. Procunier, supra; Saxbe v. Washington Post Co., 417 U. S. 843 (1974). Nor does the prohibition on inmate-to-inmate solicitation of membership trench untowardly on the inmates’ First Amendment speech rights. Solicitation of membership itself involves a good deal more than the simple expression of individual views as to the advantages or disadvantages of a union or its views; it is an invitation to collectively engage in a legitimately prohibited activity. If the prison officials are otherwise entitled to control organized union activity within the prison walls, the prohibition on solicitation for such activity is not then made impermissible on account of First Amendment considerations, for such a prohibition is then not only reasonable but necessary. Pell v. Procunier, 417 U. S., at 822. First Amendment associational rights, while perhaps more directly implicated by the regulatory prohibitions, likewise must give way to the reasonable considerations of penal management. As already noted, numerous associational rights are necessarily curtailed by the realities of confinement. They may be curtailed whenever the institution’s officials, in the exercise of their informed discretion, reasonably conclude that such associations, whether through group meetings or otherwise, possess the likelihood of disruption to prison order or stability, or otherwise interfere with the legitimate penological objectives of the prison environment. As we noted in Pell v. Procunier, supra, at 823, “central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.” Appellant prison officials concluded that the presence, perhaps even the objectives, of a prisoners’ labor union would be detrimental to order and security in the prisons, supra, at 127. It is enough to say that they have not been conclusively shown to be wrong in this view. The interest in preserving order and authority in the prisons is self-evident. Prison life, and relations between the inmates themselves and between the inmates and prison officials or staff, contain the ever-present potential for violent confrontation and conflagration. Wolff v. McDonnell, 418 U. S., at 561-562. Responsible prison officials must be permitted to take reasonable steps to forestall such a threat, and they must be permitted to act before the time when they can compile a dossier on the eve of a riot. The case of a prisoners’ union, where the focus is on the presentation of grievances to, and encouragement of adversary relations with, institution officials surely would rank high on anyone’s list of potential trouble spots. If the appellants’ views as to the possible detrimental effects of the organizational activities of the Union are reasonable, as we conclude they are, then the regulations are drafted no more broadly than they need be to meet the perceived threat — which stems directly from group meetings and group organizational activities of the Union. Cf. Procunier v. Martinez, 416 U. S., at 412-416. When weighed against the First Amendment rights asserted, these institutional reasons are sufficiently weighty to prevail. D The District Court rested on the Equal Protection Clause of the Fourteenth Amendment to strike down appellants’ prohibition against the receipt and distribution of bulk mail from the Union as well as the prohibition of Union meetings among the inmates. It felt that this was a denial of equal protection because bulk mailing and meeting rights had been extended to the Jaycees, Alcoholics Anonymous, and the Boy Scouts. The court felt that just as outside the prison, a “government may not pick and choose depending upon its approval or disapproval of the message or purpose of the group,” 409 F. Supp., at 944, so, too, appellants could not choose among groups without first demonstrating that the activity proscribed is “detrimental to proper penological objectives, subversive to good discipline, or otherwise harmful.” Ibid. This analysis is faulty for two reasons. The District Court erroneously treated this case as if the prison environment were essentially a “public forum.” We observed last Term in upholding a ban on political meetings at Fort Dix that a Government enclave such as a military base was not a public forum. Greer v. Spock, 424 U. S. 828 (1976). We stated, id., at 838 n. 10: “The fact that other civilian speakers and entertainers had sometimes been invited to appear at Fort Dix did not of itself serve to convert Fort Dix into a public forum or to confer upon political candidates a First or Fifth Amendment right to conduct their campaigns there. The decision of the military authorities that a civilian lecture on drug abuse, a religious service by a visiting preacher at the base chapel, or a rock musical concert would be supportive of the military mission of Fort Dix surely did not leave the authorities powerless thereafter to prevent any civilian from entering Fort Dix to speak on any subject whatever.” A prison may be no more easily converted into a public forum than a military base. Thus appellants need only demonstrate a rational basis for their distinctions between organizational groups. Cf. City of Charlotte v. Firefighters, 426 U. S. 283 (1976). Here, appellants’ affidavits indicate exactly why Alcoholics Anonymous and the Jaycees have been allowed to operate within the prison. Both were seen as serving a rehabilitative purpose, working in harmony with the goals and desires of the prison administrators, and both had been determined not to pose any threat to the order or security of the institution. The affidavits indicate that the administrators’ view of the Union differed critically in both these respects. Those conclusions are not unreasonable. Prison administrators may surely conclude that the Jaycees and Alcoholics Anonymous differ in fundamental respects from appellee Union, a group with no past to speak of, and with the avowed intent to pursue an adversary relationship with the prison officials. Indeed, it would be enough to distinguish the Union from Alcoholics Anonymous to note that the chartered purpose of the Union, apparently pursued in the prison, was illegal under North Carolina law. Since a prison is most emphatically not a “public forum,” these reasonable beliefs of appellants are sufficient, cf. Greer v. Spock, supra; City of Charlotte v. Firefighters, supra. The District Court’s further requirement of a demonstrable showing that the Union was in fact harmful is inconsistent with the deference federal courts should pay to the informed discretion of prison officials. Procunier v. Martinez, 416 U. S., at 405. It is precisely in matters such as this, the decision as to which of many groups should be allowed to operate within the prison walls, where, confronted with claims based on the Equal Protection Clause, the courts should allow the prison administrators the full latitude of discretion, unless it can be firmly stated that the two groups are sp similar that discretion has been abused. That is surely not the case here. There is nothing in the Constitution which requires prison officials to treat all inmate groups alike where differentiation is necessary to avoid an imminent threat of institutional disruption or violence. The regulations of appellants challenged in the District Court offended neither the First nor the Fourteenth Amendment, and the judgment of that court holding to the contrary is Reversed. These are the corporation purposes listed in the Articles of Incorporation issued by the Secretary of State of North Carolina. Collective bargaining for inmates with respect to pay, hours of employment, and other terms and conditions of incarceration is illegal under N. C. Gen. Stat. §95-98 (1975). Other allegations were contained in the complaint, respecting the opening of outgoing prison mail and the interference with visitation rights of certain paralegals. These specific allegations are not before us, and we will not deal with them further. Appellants were enjoined as follows: “(1) Inmates and all other persons shall be permitted to solicit and invite other inmates to join the plaintiff Union orally or by written or printed communication; provided, however, that access to inmates by outsiders solely for the purpose of soliciting membership may be denied except that inmate members of the Union may become entitled to be visited by free persons who are engaged with them in legitimate Union projects to the same extent that other members of free society are admitted for like purposes. “(2) Free persons otherwise entitled to visitation with inmates, be they attorneys, paralegals, friends, relatives, etc. shall not be denied access to such visitation by reason of their association or affiliation with the Union. “(3) The Union shall be accorded the privilege of bulk mailing to the extent that such a privilege is accorded other organizations. “(4) The Union and its inmate members shall be accorded the privilege of holding meetings under such limitations and control as are neutrally applied to all inmate organizations, and to the extent that other meetings of prisoners are permitted.” The District Court observed that “it is clear beyond argument that no association of prisoners may operate as a true labor union . . . .” It concluded that “it [is] of no legal significance that the charter purports, to authorize more than can lawfully be accomplished.” 409 F. Supp. 937, 940 n. 1. But, whether or not illegal activity was actually actively pursued by the Union, it is clear that its announced purpose to engage in collective bargaining is a factor which prison officials may legitimately consider in determining whether the Union is likely to be a disruptive influence, or otherwise detrimental to the effective administration of the North Carolina prison system. The District Court did hold that there was “not one scintilla of evidence to suggest that the Union has been utilized to disrupt the operation of the penal institutions.” Id., at 944. This historical finding, however, does not state that appellants’ fears as to future disruptions are groundless; there, the court indicated the opposite: “On conflicting expert opinion evidence we are left with no firm conviction that an association of inmates is necessarily good or bad .. . .” Id., at 943. The State has not hampered the ability of prison inmates to communicate their grievances to correctional officials. In banning Union solicitation or organization, appellants have merely affected one of several ways in which inmates may voice their complaints to, and seek relief, from prison officials. There exists an inmate grievance procedure through which correctional officials are informed about complaints concerning prison conditions, and through which remedial action may be secured. See Affidavit of Director Edwards, App. 127. With this presumably effective path available for the transmission of grievances, the fact that the Union’s grievance procedures might be more “desirable” does not convert the prohibitory regulations into unconstitutional acts. See Procunier v. Martinez, 416 U. S. 396, 413 (1974); cf. Greer v. Spock, 424 U. S. 828, 847 (1976) (Powell, J., concurring). The complaint alleged only that the bulk mail prohibition denied the Union equal protection of the laws: “The refusal by Defendants to allow the Prisoners’ Union Newsletter to arrive in bundles for distribution, while allowing the Jaycee Newsletter to arrive in the same manner violates Plaintiff’s Fourteenth Amendment right to equal protection of the laws.” The District Court, likewise, dealt with the bulk mail question only in terms of the Equal Protection Clause of the Fourteenth Amendment. 409 F. Supp., at 944. The ban on bulk mailing by the Union does not extend to individual mailings to individual inmates. In his affidavit, Director Edwards stated: “They are permitted to receive publications sent to them directly, but they are prohibited from receiving packets of material from unions or any other source for redistribution. This is in accordance with the Department’s policy requiring publication [s] mailed to inmates to be sent directly from the publisher. A serious security problem would result if inmates could receive packets of material and then redistribute them as they see fit. It would be impossible for the Department to inspect every magazine, every book, etc., to insure that no contraband had been placed inside the publication. The exception in regard to Jaycees is based on the recognized fact that the Jaycees are substantial citizens from the free community who are most unlikely to attempt to smuggle contraband into the union or disseminate propaganda subversive of the legitimate purposes of the prison system.” App. 129. See also N. C. Department of Correction Guidebook, Commissioner’s Administrative Directives — Publications Received by Inmates, App. 138-139. As the State has disavowed any intention of interfering with correspondence between outsiders and individual inmates in which Union matters are discussed, we do not have to discuss questions of the First Amendment right of inmates, or outsiders, see Procunier v. Martinez, supra, at 408-409, in the context of a total prohibition on the communication of information about the Union. The District Court apparently thought that solicitation by means of correspondence is prohibited, even if the general discussion of Union affairs is not, 409 F. Supp., at 941. The Union does not press this point here, and it is not alleged in its complaint, but, clearly, if the appellants are permitted to prohibit solicitation activities, they may prohibit solicitation activities by means which use the mails. The informed discretion of prison officials that there is potential danger may be sufficient for limiting rights even though this showing might be “unimpressive if . . . submitted as justification for governmental restriction of personal communication among members of the general public.” Pell v. Procunier, 417 U. S. 817, 825 (1974). Director Edwards listed the objectives for which the Jaycees had been allowed within the North Carolina prison system, namely the “productive association [of inmates] with stable community representatives and the accomplishment of service projects to the community . . . .” When these objectives cease, “the functions of the organization and its opportunities to assemble as an organization would also cease.” Affidavit of Director Edwards, App. 125. With respect to Alcoholics Anonymous, he stated, id., at 126: “The objectives of the Alcoholics Anonymous Program are to provide therapeutic support, insight, and an opportunity for productive sharing of experiences among those who have encountered the deteriorative effects of alcoholism. Alcoholics Anonymous is structured on a peer pressure basis which begins while the individual client is confined and is intended to have carry over effects into Alcoholic Anonymous groups in the free community.” With respect to Alcoholics Anonymous and the Jaycees, Director Edwards stated, ibid.: “The goals and the objectives of [both] the Alcoholics Anonymous and the Jayeee Program were presented to correctional staff as meaningful courses of action with positive goals relative to the productive restoration of offenders to active, lawful participation in the community. The goals of both organizations [were] scrutinized, evaluated, and approved. Operational guidelines have been drawn up in each instance following approval to certify that the primary objective of the correctional system — to maintain order and security — would not be abridged by the operation of these programs within the confines of prison units.” Opposed to these articulated reasons for allowing these groups is his statement with respect to the Union, ibid.: “The Division of Prisons was unable to validate a substantive rehabilitation purpose or associative purpose in the design of the organization. To accept the organizational objectives of a prisoner’s union would be to approve an organization whose design and purpose would compromise the order and security of the correctional system.” See also supra, at 127. See n. 1, supra. It was acknowledged at oral argument that the Union newsletter has since reiterated the Union’s goal, as stated in the charter, and that the newsletter has contained authorization cards whereby the inmate could “authorize the agents or representatives of said Union to represent me and to act as a collective bargaining agent in all matters pertaining to rates of pay, hours of employment and all other terms and conditions of incarceration.” Record 25. See Tr. of Oral Arg. 31, 34r-35. Question: What is the state of the state agency associated with the administrative action? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:

songer_r_bus

2

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. TETON EXPLORATION DRILLING, INC., Plaintiff-Appellant, v. BOKUM RESOURCES CORPORATION and Long Island Lighting Company, Defendants-Appellees. Nos. 85-1046, 85-1324. United States Court of Appeals, Tenth Circuit. May 18, 1987. Rehearing Denied June 18, 1987. Robert H. Clark (Charles A. Pharris and Paula Z. Hanson with him on the briefs) of Keleher & McLeod, Albuquerque, N.M., for plaintiff-appellant Teton Exploration Drilling, Inc. Stephen P. Curtis of Melton & Puccini, Albuquerque, N.M., for defendant-appellee Bokum Resources Corp. Sarah M. Singleton (Michael W. Brennan with her on the brief) of Montgomery & Andrews, Santa Fe, N.M., for defendantappellee Long Island Lighting Co. Before LOGAN, McWILLIAMS and BALDOCK, Circuit Judges. LOGAN, Circuit Judge. Teton Exploration Drilling, Inc. sued Bokum Resources Corporation in a New Mexico state court to recover for services rendered under a contract to drill certain ventilation and egress shafts on Bokum’s uranium mining property in New Mexico. Bokum removed the case to the Bankruptcy Court for the District of New Mexico after Bokum’s creditors filed an involuntary bankruptcy petition against it. There Bokum counterclaimed against Teton, asserting breach of contract and negligence. The bankruptcy court permitted Long Island Lighting Company (“LILCO”) to participate in the litigation as an interested party defendant because it had a uranium contract with Bokum, which was using funds advanced by LILCO to bring its mine into production. The bankruptcy court found in favor of Bokum on both Teton’s claim and Bokum’s counterclaim, and entered a preliminary memorandum opinion on December 10, 1984, assessing Bokum’s damages at $1,862,511.55. On December 13, the bankruptcy judge certified the opinion to the district court for review pursuant to the District of New Mexico’s local Rule 31(g), which provides for review of “non-core” bankruptcy proceedings. On December 24, the parties filed a stipulation in the bankruptcy court that they believed the matter to be a core proceeding as defined in 28 U.S.C. § 157(b)(2), with respect to which the bankruptcy court could make a final judgment. R. II, 433. The stipulation stated that “in any event, the parties agree, pursuant to 28 U.S.C. Section 157(c)(2), that the Bankruptcy Court may enter Findings of Fact and Conclusions of Law and appropriate Orders and Judgments.” Id. The stipulation contemplated a direct appeal from the bankruptcy court to this court under 28 U.S.C. § 1293. On December 28, the district court entered an order confirming the bankruptcy court’s December 10 opinion in its entirety. The bankruptcy judge had filed a more detailed supplemental memorandum opinion on December 26, 1984, to the same effect as his December 10, '1984, opinion and entered a proposed judgment on December 31, both of which he also certified to the district court for review pursuant to Rule 31(g). On January 7, 1985, Teton filed notices of appeal to both the district court and this court, seeking review of the December 28 confirmation order as well as the bankruptcy court’s supplemental opinion and judgment. On February 8, the district court entered orders confirming the bankruptcy court’s supplemental opinion and judgment in their entirety. Teton filed a notice of appeal from these orders on February 26, 1985. Teton’s first appeal to this court was docketed as No. 85-1046; the second appeal was docketed as No. 85-1324. I We directed the parties to brief the issue whether this court has jurisdiction over these two appeals. Both appeals raise identical issues. Because we conclude that this court has jurisdiction to decide Teton’s second appeal, No. 85-1324, we need not consider whether Teton’s first appeal, No. 85-1046, is properly before us. From the certification and confirmation procedure utilized below, it appears that both the bankruptcy court and the district court intended to treat this case as a “non-core” proceeding under 28 U.S.C. § 157(c)(1). If we were to find such treatment appropriate, then the district court’s February 8 order confirming the bankruptcy court’s December 31 judgment constituted a final decision of the district court, appealable to this court under 28 U.S.C. § 1291. See In re Salem Mortgage Co., 783 F.2d 626, 632 & n. 15 (6th Cir.1986); In re Amatex Corp., 755 F.2d 1034, 1038-39 & n. 4 (3d Cir.1985). Teton now argues, however, that the bankruptcy court and the district court should have treated this case as a “core” proceeding, either because it falls within one of the categories set forth in § 157(b)(2), or because the parties stipulated to treatment of the case as a core proceeding. The proper procedure, Teton contends, would have been for the bankruptcy court to enter a final order subject only to appellate review in the district court under § 158(a), not the entirely de novo review prescribed under § 157(c)(1) for “non-core” proceedings. Had the district court acted in its appellate capacity, we would then have jurisdiction to review its decision under § 158(d). Under § 157(b)(3), the determination whether a proceeding is core or non-core is to be made by the bankruptcy court, either sua sponte or on the motion of a party. If the bankruptcy court determines that a case is a core proceeding, it is then authorized, under § 157(b)(1), to enter a dispositive order or judgment. But even if the bankruptcy court erred in treating this as a non-core proceeding, the district court did not lack jurisdiction to enter the final order appealed from. Section 157(b)(1) provides: “Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title.” (Emphasis added). We do not believe § 157 required the bankruptcy court to enter a final order rather than submit proposed findings and conclusions to the district court. Whether the proceedings were core or non-core, we have jurisdiction to review No. 85-1324 under 28 U.S.C. § 1291. Our conclusion is not affected by the parties’ December 24 stipulation that the matter be treated as a core proceeding. Although the parties to a non-core proceeding may consent to final disposition by a bankruptcy judge under § 157(c)(2), we find no reason to conclude that such consent is binding on either the bankruptcy judge or the district court. None of the parties filed any objections to the certification and confirmation procedure within the time limits specified by local rule 31(g)(2), governing review of non-core proceedings. We have before us a determination by the bankruptcy court, with which the district court agreed fully. We perceive no reason of logic or public policy that would require a remand to the district court with instructions to subject the bankruptcy court’s findings to an appellate type of review rather than the de novo review the district court apparently utilized. We believe the efficient utilization of judicial resources requires that the appeal be treated as ripe for determination on its merits. II Bokum, as owner of a uranium mine in New Mexico, contracted with Teton to drill five large-diameter shafts approximately 2000 feet deep to service that mine and provide ventilation and an emergency escape route. The shafts were to be lined with steel casings adequate to withstand the hydrostatic pressure exerted by underground water in the formations being drilled. Bokum provided Teton with lithological reports indicating the various levels at which water would be encountered. Drilling the first hole took substantially longer than the parties had anticipated, but was eventually completed in November 1979. Teton then began lowering the steel casing into the waterfilled hole, one forty-foot section at a time. On November 24, a submerged section of the casing collapsed and the casing string dropped ninety to one hundred feet to the bottom of the hole. Teton repaired the collapsed section and completed installation of the casing, but was never able to prevent water from flooding the shaft, apparently through a rupture in the bottom of the casing. The bankruptcy court found that the November 24 collapse was “due to a combination of inadequate design and improper fabrication [of the casing], including inadequate welding,” R. II, 412, for which Teton was ultimately responsible. The court found that even if the hole could be cleared of water, the casing was not strong enough to insure against collapse or rupture due to hydrostatic pressure below 1000 feet. The court concluded that “abandonment of the hole appears to be the only safe and reasonable conclusion with respect to the utility and value of this casing.” R. II, 413. The court found that Bokum had effectively abandoned the mine when it encountered financial troubles and uranium mining became unprofitable. It therefore refused to give Bokum the benefit of the bargain. Rather the court in effect allowed rescission, and ordered that Bokum should get back all of the monies that it had paid Teton, less the amounts paid for use of Teton’s drilling rig and installation of three “cellers” for use with other shafts. R. II, 427. The court rejected Teton’s assertions of substantial performance and quantum meruit. It found that the shaft was “of no practical benefit” to Bokum, R. II, 422, and that Teton’s performance was not excused by Bokum’s failure to pay invoices after the November 24 collapse. Teton contends on appeal that (1) the contract placed the risk on Bokum for all losses of the shaft or casing caused by something other than the gross negligence of Teton; (2) the damages awarded must be reduced even if Bokum is entitled to some recovery; and (3) Bokum’s failure to pay invoices breached the contract, excusing further performance by Teton. The chief focal point of the dispute between the parties is the meaning of Article VIII(D) of the contract. Several provisions of the contract, including Article VIII(A), required Teton to perform services and work “in a good and workmanlike manner.” R. I, 16. Article VIII(A) also required Teton to exercise “due diligence and care.” Id. But subparagraph D of Article VIII provided that “[a]ll liability for loss of holes, casing, downhole tools, drill pipe, fishing costs, etc., except if caused by the gross negligence of Teton, shall be the responsibility of” Bokum. Id. Teton asserts that this subparagraph “clearly and unambiguously places the risk on Bokum for all losses of the shaft or of the casing which are caused by something other than the gross negligence of Teton.” Appellant’s Brief at 24 (emphasis in original). Bokum and LILCO, on the other hand, assert that the subparagraph deals only with unforeseen conditions encountered below the ground surface; they argue that, if given Teton’s interpretation, Article VIII(D) would in effect abrogate all the other provisions in the contract that require Teton to proceed in a good and workmanlike manner. The bankruptcy court's findings, confirmed by the district court, were to the effect that subparagraph D was ambiguous. The court allowed parol evidence on the provision’s meaning, and, after considering such evidence, concluded that Article VIII(D) only referred to “losses incurred as a result of unforeseen conditions existing beneath the surface,” R. II, 408, and did not excuse Teton from ordinary negligence in failing to design and install casing into the hole that would keep out the water. The determination whether a contract provision is ambiguous is a matter of law. Devine v. Ladd Petroleum Corp., 805 F.2d 348, 349 (10th Cir.1986); Kelliher v. Herman, 701 P.2d 1157, 1159 (Wyo.1985). After examining the contested clause and reading the contract as a whole, we agree with the district court that the clause at issue is ambiguous. Once a provision is found to be ambiguous, the resolution of its proper meaning is a question of fact, subject to review on a clearly erroneous standard. City of Farmington v. Amoco Gas Co., 777 F.2d 554, 560 (10th Cir.1985). We hold that the district court’s interpretation of Article VIII(D) is not clearly erroneous. Teton argues that the damages awarded must be reduced even if Bokum is entitled to recovery. It asserts entitlement to a $160,000 setoff because Bokum abandoned the drilling of the other four shafts and Article X of the contract penalized Bokum $40,000 for each shaft not drilled. The bankruptcy court found, however, that the parties, by mutual agreement, had can-celled the remaining portion of the contract, excusing the operation of the penalty clause. Teton also argues that it should not be required to return some $91,000 that it was paid for providing mud pits, water and cement, services Bokum had initially agreed to provide under Article IV of the contract. Bokum’s response, apparently accepted by the court, was that the contract had been modified at the outset to require Teton to provide these services. Finally, Teton argues that the damages must be reduced because the shaft is still valuable to Bokum, and could be made usable by expenditures of $6000 to $7000. The district court rejected this argument, relying on evidence that the shaft could not feasibly be made safe. Teton’s arguments about the amount of damages due Bokum allege errors in the court’s findings of fact, which we will set aside only if they are clearly erroneous. City of Farmington, 777 F.2d at 560. Te-ton’s argument that Bokum’s failure to pay invoices breached the contract and excused Teton from completing performance also alleges errors of fact. The bankruptcy court found that “[t]he material breach by Teton which became evident on November 24, 1979 excused [Bokum] from further payments until that performance by Teton was rectified____ [Bokum’s] refusal to pay from and after November 24, 1979 was justified as a result of the abundantly apparent defective workmanship it had been provided through and by Teton. As a result of Teton’s material breach of the Drilling Contract, it cannot claim a subsequent breach by [Bokum] in refusing to pay.” R. II, 423. We have examined the record carefully and conclude that the bankruptcy court’s findings of fact, confirmed by the district court, are supported by the record. We cannot find clearly erroneous the determinations that Article VIII(D) of the contract did not excuse Teton’s failure to perform in a “good and workmanlike manner;” that the parties mutually agreed to abandon the contract with respect to completing the final four holes and excused the $40,000 per hole penalty provision; that the $91,000 was a proper expenditure to be returned to Bokum as a part of making it whole; that the shaft was not usable in the condition Teton left it after many efforts to repair; and that Teton had materially breached the contract before Bokum suspended payment on the invoices. AFFIRMED. . Subsection (c)(1) provides: "A bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11. In such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge's proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected." . One panel of the Ninth Circuit has held that 28 U.S.C. § 158(d) is "the exclusive basis of jurisdiction in the appellate courts in bankruptcy matters." In re Teleport Oil Co., 759 F.2d 1376, 1378 (9th Cir.1985); accord In re Barrier, 776 F.2d 1298, 1299 (5th Cir.1985) (following Teleport). Later Ninth Circuit cases cast doubt on the Teleport decision. See In re Benny, 791 F.2d 712, 717 & n. 4 (9th Cir.1986). Section 158(d) contains no provision for appellate review of final district court orders entered in non-core proceedings under § 157(c)(1). If Teleport were correct, then such orders would be unreviewable. Because we perceive no indication that Congress intended § 158(d) to act as a limitation on the general jurisdiction of appellate courts under § 1291, we decline to follow Teleport. Accord In re Salem Mortgage Co., 783 F.2d 626, 632 n. 15. (6th Cir.1986). . Article VIII, entitled "Obligations of Teton,” provides in full: "Teton will provide qualified personnel as may be necessary to drill the shafts, set the casing, complete expeditiously all the work and operations contemplated hereunder in accordance with this agreement. In furtherance of the foregoing but not by way of limitation or exclusion, Teton shall: A. Perform the services and work required hereunder in a good and workmanlike manner with due diligence and care; B. Be solely responsible for the supervision, control and performance of all work and' services required of Teton hereunder; C. Keep and furnish to the Owner sufficiently accurate records of all work performed by Teton on a daily report form; D. Teton will make no warranties as to the stability of the formation to be drilled and, therefore, is not responsible for any damage, loss or delay resulting from stuffing or caving of formations. In addition, there is no guarantee as to the actual cost or time required for the completion of the contract. All liability for loss of holes, casing, downhole tools, drill pipe, fishing costs, etc., except if caused by the gross negligence of Teton, shall be the responsibility of Owner and shall not be included in the target for the purpose of bonus calculations." R. I, 16. . Article II provides, in part: “On commencement of the work, Teton shall diligently continue operations hereunder in a good and workmanlike manner consistent with drilling industry standards until Teton has completed such operations and shafts are accepted by Owner.” R. I, 13. Article IX, entitled “Inspection and Acceptance," provides: “Within twelve (12) hours after completion of each shaft, Owner shall visually inspect the same, and if Owner finds the work to be completed in accordance with this agreement and in a good and workmanlike manner, shall issue to Teton a written statement accepting the work with respect to each shaft. Any remedial work required prior to acceptance of the hole will be done at the rates provided herein and charged against the target estimate." R. I, 17. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:

sc_lcdispositiondirection

B

What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations AIR AND LIQUID SYSTEMS CORP., et al., Petitioners v. Roberta G. DEVRIES, Individually and as Administratrix of the Estate of John B. DeVries, Deceased, et al. No. 17-1104 Supreme Court of the United States. Argued October 10, 2018 Decided March 19, 2019 Shay Dvoretzky, Washington, DC, for the petitioners. Thomas C. Goldstein, Bethesda, MD, for the respondents. Benjamin M. Flowers, Jones Day, Columbus, OH, Shay Dvoretzky, Jeffrey R. Johnson, Vivek Suri, Jones Day, Washington, DC, Christopher G. Conley, Evert Weathersby, Houff, Bogart, GA, for petitioner CBS Corporation. Brady L. Green, Wilbraham, Lawler & Buba, Philadelphia, PA, for petitioner Air & Liquid Systems Corp. Christopher J. Keale, Afigo I. Okpewho-Fadahunsi, Tanenbaum Keale LLP, Newark, NJ, for petitioner Foster Wheeler LLC. John J. Hare, Marshall Dennehey, Warner Coleman & Goggin, Philadelphia, PA, for petitioner Ingersoll-Rand Company. Timothy E. Kapshandy, John A. Heller, Sidley Austin LLP, Chicago, IL, Carter G. Phillips, Counsel of Record, Paul J. Zidlicky, Tobias S. Loss-Eaton, Sidley Austin LLP, Washington, DC, for respondent General Electric Co. Denyse F. Clancy, Kazan, McClain, Satterley, & Greenwood, Oakland, CA, Richard P. Myers, Robert E. Paul, Alan I. Reich, Patrick J. Myers, Paul, Reich & Myers, P.C., Philadelphia, PA, Jonathan Ruckdeschel, The Ruckdeschel Law Firm, LLC, Ellicott City, MD, William W.C. Harty, Patten, Wornom, Hatten & Diamonstein, Newport News, VA, for respondents. Justice KAVANAUGH delivered the opinion of the Court. In maritime tort cases, we act as a common-law court, subject to any controlling statutes enacted by Congress. See Exxon Shipping Co. v. Baker , 554 U.S. 471, 507-508, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008). This maritime tort case raises a question about the scope of a manufacturer's duty to warn. The manufacturers here produced equipment such as pumps, blowers, and turbines for three Navy ships. The equipment required asbestos insulation or asbestos parts in order to function as intended. When used on the ships, the equipment released asbestos fibers into the air. Two Navy veterans who were exposed to asbestos on the ships developed cancer and later died. The veterans' families sued the equipment manufacturers, claiming that the manufacturers were negligent in failing to warn of the dangers of asbestos. The plaintiffs contend that a manufacturer has a duty to warn when the manufacturer's product requires incorporation of a part (here, asbestos) that the manufacturer knows is likely to make the integrated product dangerous for its intended uses. The manufacturers respond that they had no duty to warn because they did not themselves incorporate the asbestos into their equipment; rather, the Navy added the asbestos to the equipment after the equipment was already on board the ships. We agree with the plaintiffs. In the maritime tort context, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product's users will realize that danger. The District Court did not apply that test when granting summary judgment to the defendant manufacturers. Although we do not agree with all of the reasoning of the U. S. Court of Appeals for the Third Circuit, we affirm its judgment requiring the District Court to reconsider its prior grants of summary judgment to the defendant manufacturers. I Kenneth McAfee served in the U. S. Navy for more than 20 years. As relevant here, McAfee worked on the U. S. S. Wanamassa from 1977 to 1980 and then on the U. S. S. Commodore from 1982 to 1986. John DeVries served in the U. S. Navy from 1957 to 1960. He worked on the U. S. S. Turner . Those ships were outfitted with equipment such as pumps, blowers, and turbines. That equipment required asbestos insulation or asbestos parts in order to function as intended. When used as intended, that equipment can cause the release of asbestos fibers into the air. If inhaled or ingested, those fibers may cause various illnesses. Five businesses-Air and Liquid Systems, CBS, Foster Wheeler, Ingersoll Rand, and General Electric-produced some of the equipment that was used on the ships. Al-though the equipment required asbestos insulation or asbestos parts in order to function as intended, those businesses did not always incorporate the asbestos into their products. Instead, the businesses delivered much of the equipment to the Navy without asbestos. The equipment was delivered in a condition known as "bare-metal." In those situations, the Navy later added the asbestos to the equipment. McAfee and DeVries allege that their exposure to the asbestos caused them to develop cancer. They and their wives sued the equipment manufacturers in Pennsylvania state court. (McAfee and DeVries later died during the course of the ongoing litigation.) The plaintiffs did not sue the Navy because they apparently believed the Navy was immune. See Feres v. United States , 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The plaintiffs also could not recover much from the manufacturers of the asbestos insulation and asbestos parts because those manufacturers had gone bankrupt. As to the manufacturers of the equipment-such as the pumps, blowers, and turbines-the plaintiffs claimed that those manufacturers negligently failed to warn them of the dangers of asbestos in the integrated products. If the manufacturers had provided warnings, the workers on the ships presumably could have worn respiratory masks and thereby avoided the danger. Invoking federal maritime jurisdiction, the manufacturers removed the cases to federal court. The manufacturers then moved for summary judgment on the ground that manufacturers should not be liable for harms caused by later-added third-party parts. That defense is known as the "bare-metal defense." The District Court granted the manufacturers' motions for summary judgment. The U. S. Court of Appeals for the Third Circuit vacated and remanded. In re Asbestos Prods. Liability Litigation , 873 F.3d 232, 241 (2017). The Third Circuit held that "a manufacturer of a bare-metal product may be held liable for a plaintiff's injuries suffered from later-added asbestos-containing materials" if the manufacturer could foresee that the product would be used with the later-added asbestos-containing materials. Id. , at 240. We granted certiorari to resolve a disagreement among the Courts of Appeals about the validity of the bare-metal defense under maritime law. 584 U. S. ----, 138 S.Ct. 1990, 201 L.Ed.2d 246 (2018). Compare 873 F.3d 232 (case below), with Lindstrom v. A-C Prod. Liability Trust , 424 F.3d 488 (CA6 2005). II Article III of the Constitution grants the federal courts jurisdiction over maritime cases. Under 28 U. S. C. § 1333, the federal courts have "original jurisdiction, exclusive of the courts of the States, of ... [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." When a federal court decides a maritime case, it acts as a federal "common law court," much as state courts do in state common-law cases. Exxon Shipping Co. , 554 U.S. at 507, 128 S.Ct. 2605. Subject to direction from Congress, the federal courts fashion federal maritime law. See id. , at 508, n. 21, 128 S.Ct. 2605 ; Miles v. Apex Marine Corp. , 498 U.S. 19, 27, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) ; United States v. Reliable Transfer Co. , 421 U.S. 397, 409, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975) ; Detroit Trust Co. v. The Thomas Barlum , 293 U.S. 21, 42-44, 55 S.Ct. 31, 79 L.Ed. 176 (1934). In formulating federal maritime law, the federal courts may examine, among other sources, judicial opinions, legislation, treatises, and scholarly writings. See Exxon Co., U. S. A. v. Sofec, Inc. , 517 U.S. 830, 839, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996) ; East River S. S. Corp. v. Transamerica Delaval Inc. , 476 U.S. 858, 864, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). This is a maritime tort case. The plaintiffs allege that the defendant equipment manufacturers were negligent in failing to warn about the dangers of asbestos. "The general maritime law has recognized the tort of negligence for more than a century ...." Norfolk Shipbuilding & Drydock Corp. v. Garris , 532 U.S. 811, 820, 121 S.Ct. 1927, 150 L.Ed.2d 34 (2001) ; see also Kermarec v. Compagnie Generale Transatlantique , 358 U.S. 625, 631-632, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). Maritime law has likewise recognized common-law principles of products liability for decades. See East River S. S. Corp. , 476 U.S. at 865, 106 S.Ct. 2295. In this negligence case, we must decide whether a manufacturer has a duty to warn when the manufacturer's product requires later incorporation of a dangerous part-here, asbestos-in order for the integrated product to function as intended. We start with basic tort-law principles. Tort law imposes "a duty to exercise reasonable care" on those whose conduct presents a risk of harm to others. 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7, p. 77 (2005). For the manufacturer of a product, the general duty of care includes a duty to warn when the manufacturer "knows or has reason to know" that its product "is or is likely to be dangerous for the use for which it is supplied" and the manufacturer "has no reason to believe" that the product's users will realize that danger. 2 Restatement (Second) of Torts § 388, p. 301 (1963-1964). In tort cases, the federal and state courts have not reached consensus on how to apply that general tort-law "duty to warn" principle when the manufacturer's product requires later incorporation of a dangerous part in order for the integrated product to function as intended. Three approaches have emerged. The first approach is the more plaintiff-friendly foreseeability rule that the Third Circuit adopted in this case: A manufacturer may be liable when it was foreseeable that the manufacturer's product would be used with another product or part, even if the manufacturer's product did not require use or incorporation of that other product or part. See, e.g. , 873 F.3d at 240 ; Kochera v. Foster Wheeler, LLC , 2015 WL 5584749, *4 (S.D. Ill., Sept. 23, 2015) ; Chicano v. General Elec. Co. , 2004 WL 2250990, *9 (E.D. Pa., Oct. 5, 2004) ; McKenzie v. A. W. Chesterson Co. , 277 Ore. App. 728, 749-750, 373 P.3d 150, 162 (2016). The second approach is the more defendant-friendly bare-metal defense that the manufacturers urge here: If a manufacturer did not itself make, sell, or distribute the part or incorporate the part into the product, the manufacturer is not liable for harm caused by the integrated product-even if the product required incorporation of the part and the manufacturer knew that the integrated product was likely to be dangerous for its intended uses. See, e.g. , Lindstrom , 424 F.3d at 492, 495-497 ; Evans v. CBS Corp. , 230 F.Supp.3d 397, 403-405 (D.Del. 2017) ; Cabasug v. Crane Co. , 989 F.Supp.2d 1027, 1041 (D.Haw. 2013). The third approach falls between those two approaches. Under the third approach, foreseeability that the product may be used with another product or part that is likely to be dangerous is not enough to trigger a duty to warn. But a manufacturer does have a duty to warn when its product requires incorporation of a part and the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses. Under that approach, the manufacturer may be liable even when the manufacturer does not itself incorporate the required part into the product. See, e.g. , Quirin v. Lorillard Tobacco Co. , 17 F.Supp.3d 760, 769-770 (N.D. Ill. 2014) ; In re New York City Asbestos Litigation , 27 N. Y. 3d 765, 793-794, 37 N.Y.S.3d 723, 59 N.E.3d 458, 474 (2016) ; May v. Air & Liquid Systems Corp. , 446 Md. 1, 29, 129 A.3d 984, 1000 (2015). We conclude that the third approach is the most appropriate for this maritime tort context. To begin, we agree with the manufacturers that a rule of mere foreseeability would sweep too broadly. See generally 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7, Comment j , at 82; 2 Restatement (Second) of Torts § 395, Comment j , at 330. Many products can foreseeably be used in numerous ways with numerous other products and parts. Requiring a product manufacturer to imagine and warn about all of those possible uses-with massive liability looming for failure to correctly predict how its product might be used with other products or parts-would impose a difficult and costly burden on manufacturers, while simultaneously overwarning users. In light of that uncertainty and unfairness, we reject the foreseeability approach for this maritime context. That said, we agree with the plaintiffs that the bare-metal defense ultimately goes too far in the other direction. In urging the bare-metal defense, the manufacturers contend that a business generally has "no duty" to "control the conduct of a third person as to prevent him from causing physical harm to another." Id ., § 315, at 122. That is true, but it is also beside the point here. After all, when a manufacturer's product is dangerous in and of itself, the manufacturer "knows or has reason to know" that the product "is or is likely to be dangerous for the use for which it is supplied." Id. , § 388, at 301. The same holds true, we conclude, when the manufacturer's product requires incorporation of a part that the manufacturer knows or has reason to know is likely to make the integrated product dangerous for its intended uses. As a matter of maritime tort law, we find no persuasive reason to distinguish those two similar situations for purposes of a manufacturer's duty to warn. See Restatement (Third) of Torts: Products Liability § 2, Comment i , p. 30 (1997) ("[W]arnings also may be needed to inform users and consumers of nonobvious and not generally known risks that unavoidably inhere in using or consuming the product"). Importantly, the product manufacturer will often be in a better position than the parts manufacturer to warn of the danger from the integrated product. See generally G. Calabresi, The Costs of Accidents 311-318 (1970). The product manufacturer knows the nature of the ultimate integrated product and is typically more aware of the risks associated with that integrated product. By contrast, a parts manufacturer may be aware only that its part could conceivably be used in any number of ways in any number of products. A parts manufacturer may not always be aware that its part will be used in a way that poses a risk of danger. To be sure, as the manufacturers correctly point out, issuing a warning costs time and money. But the burden usually is not significant. Manufacturers already have a duty to warn of the dangers of their own products. That duty typically imposes a light burden on manufacturers. See, e.g. , Davis v. Wyeth Labs., Inc. , 399 F.2d 121, 131 (CA9 1968) ; Butler v. L. Sonneborn Sons, Inc. , 296 F.2d 623, 625-626 (CA2 1961) ; Ross Labs. v. Thies , 725 P.2d 1076, 1079 (Alaska 1986) ; Moran v. Faberge, Inc. , 273 Md. 538, 543-544, 332 A.2d 11, 15 (1975). Requiring a manufacturer to also warn when the manufacturer knows or has reason to know that a required later-added part is likely to make the integrated product dangerous for its intended uses should not meaningfully add to that burden. The manufacturers also contend that requiring a warning even when they have not themselves incorporated the part into the product will lead to uncertainty about when product manufacturers must provide warnings. But the manufacturers have not pointed to any substantial confusion in those jurisdictions that have adopted this approach. And the rule that we adopt here is tightly cabined. The rule does not require that manufacturers warn in cases of mere foreseeability. The rule requires that manufacturers warn only when their product requires a part in order for the integrated product to function as intended. The manufacturers further assert that requiring a warning in these circumstances will lead to excessive warning of consumers. Again, however, we are not aware of substantial overwarning problems in those jurisdictions that have adopted this approach. And because the rule we adopt here applies only in certain narrow circumstances, it will not require a plethora of new warnings. Requiring the product manufacturer to warn when its product requires incorporation of a part that makes the integrated product dangerous for its intended uses-and not just when the manufacturer itself incorporates the part into the product-is especially appropriate in the maritime context. Maritime law has always recognized a "special solicitude for the welfare" of those who undertake to "venture upon hazardous and unpredictable sea voyages." American Export Lines, Inc. v. Alvez , 446 U.S. 274, 285, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980) (internal quotation marks omitted). The plaintiffs in this case are the families of veterans who served in the U. S. Navy. Maritime law's longstanding solicitude for sailors reinforces our decision to require a warning in these circumstances. See Yamaha Motor Corp., U. S. A. v. Calhoun , 516 U.S. 199, 213, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996) ; Miles , 498 U.S. at 36, 111 S.Ct. 317 ; Moragne v. States Marine Lines, Inc. , 398 U.S. 375, 387, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). For those reasons, we conclude as follows: In the maritime tort context, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product's users will realize that danger. We do not purport to define the proper tort rule outside of the maritime context. One final point for clarity: Courts have determined that this rule applies in certain related situations, including when: (i) a manufacturer directs that the part be incorporated, see, e.g. , Bell v. Foster Wheeler Energy Corp. , 2016 WL 5780104, *6-*7 (E.D. La., Oct. 4, 2016) ; (ii) a manufacturer itself makes the product with a part that the manufacturer knows will require replacement with a similar part, see, e.g. , Chesher v. 3M Co. , 234 F.Supp.3d 693, 713-714 (D.S. C. 2017) ; Quirin , 17 F.Supp.3d at 769-770 ; May , 446 Md., at 29, 129 A.3d at 1000 ; or (iii) a product would be useless without the part, see, e.g. , In re New York City Asbestos Litigation , 27 N. Y. 3d, at 793-794, 37 N.Y.S.3d 723, 59 N.E.3d at 474. In all of those situations, courts have said that the product in effect requires the part in order for the integrated product to function as intended. We agree. The maritime tort rule we adopt today therefore encompasses those situations, so long as the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product's users will realize that danger. * * * In the maritime tort context, we hold that a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product's users will realize that danger. The District Court should evaluate the evidence under that rule. Although we do not agree with all of the reasoning of the Third Circuit, we affirm its judgment requiring the District Court to reconsider its prior grants of summary judgment to the defendant manufacturers. It is so ordered. Justice GORSUCH, with whom Justice THOMAS and Justice ALITO join, dissenting. Decades ago, many of the defendants before us sold "bare metal" products to the Navy. Things like the turbines used to propel its ships. Did these manufacturers have to warn users about the dangers of asbestos that someone else later chose to add to or wrap around their products as insulation? Start with a couple of things we can all agree on. First, everyone accepts that, under traditional tort principles, the manufacturers who actually supplied the later-added asbestos had to warn about its known dangers. Second, everyone agrees that the court of appeals erred when it came to analyzing the duties of the bare metal defendants. The court of appeals held that the bare metal manufacturers had a duty to warn because they could have "foreseen" the possibility that others would later use asbestos in conjunction with their products. Today, the Court rightly rejects this "foreseeability" standard, succinctly explaining that "[r]equiring a product manufacturer to imagine and warn about all of those possible uses-with massive liability looming for failure to correctly predict how its product might be used with other products or parts-would impose a difficult and costly burden on manufacturers, while simultaneously overwarning users." Ante , at ----. Our disagreement arises only in what comes next. Immediately after rejecting the court of appeals' approach, the Court proceeds to devise its own way of holding the bare metal manufacturers responsible for later-added asbestos. In the Court's judgment, the bare metal defendants had a duty to warn about the dangers of asbestos introduced by others so long as they (i) produced a product that "require[d] incorporation of" asbestos, (ii) "kn[ew] or ha[d] reason to know" that the "integrated product" would be dangerous, and (iii) had "no reason to believe" that users would realize that danger. Ante , at ---- - ----. The Court's new three-part standard surely represents an improvement over the court of appeals' unadorned "foreseeability" offering. But, respectfully, it seems to me to suffer from many of the same defects the Court itself has identified. In the first place, neither of these standards enjoys meaningful roots in the common law. The common law has long taught that a manufacturer has no "duty to warn or instruct about another manufacturer's products, though those products might be used in connection with the manufacturer's own products." Firestone Steel Prods. Co. v. Barajas , 927 S.W.2d 608, 616 (Tex. 1996). Instead, "the manufacturer's duty is restricted to warnings based on the characteristics of the manufacturer's own product ." Powell v. Standard Brands Paint Co. , 166 Cal. App. 3d 357, 364, 212 Cal.Rptr. 395, 398 (1985). It doesn't matter, either, whether a manufacturer's product happens to be (or is designed to be) "integrated" with another's. Instead, it is black-letter law that the supplier of a product generally must warn about only those risks associated with the product itself, not those associated with the "products and systems into which [it later may be] integrated." Restatement (Third) of Torts: Products Liability § 5, Comment b , p. 132 (1997). More than that, the traditional common law rule still makes the most sense today. The manufacturer of a product is in the best position to understand and warn users about its risks; in the language of law and economics, those who make products are generally the least-cost avoiders of their risks. By placing the duty to warn on a product's manufacturer, we force it to internalize the full cost of any injuries caused by inadequate warnings-and in that way ensure it is fully incentivized to provide adequate warnings. By contrast, we dilute the incentive of a manufacturer to warn about the dangers of its products when we require other people to share the duty to warn and its corresponding costs. See S. Shavell, Economic Analysis of Accident Law 17 (1987); G. Calabresi, The Costs of Accidents 135, and n. 1 (1970); Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co. , 376 U.S. 315, 324, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964). The traditional common law rule better accords, too, with consumer expectations. A home chef who buys a butcher's knife may expect to read warnings about the dangers of knives but not about the dangers of undercooked meat. Likewise, a purchaser of gasoline may expect to see warnings at the pump about its flammability but not about the dangers of recklessly driving a car. As the Court today recognizes, encouraging manufacturers to offer warnings about other people's products risks long, duplicative, fine print, and conflicting warnings that will leave consumers less sure about which to take seriously and more likely to disregard them all. In the words of the California Supreme Court, consumer welfare is not well "served by requiring manufacturers to warn about the dangerous propensities of products they do not design, make, or sell." O'Neil v. Crane Co. , 53 Cal. 4th 335, 343, 266 P.3d 987, 991, 135 Cal.Rptr.3d 288 (2012) ; see also Cotton v. Buckeye Gas Prods. Co. , 840 F.2d 935, 938 (CADC 1988) ("The inclusion of each extra item dilutes the punch of every other item. Given short attention spans, items crowd each other out; they get lost in fine print"). The traditional tort rule bears yet another virtue: It is simple to apply. The traditional rule affords manufacturers fair notice of their legal duties, lets injured consumers know whom to sue, and ensures courts will treat like cases alike. By contrast, when liability depends on the application of opaque or multifactor standards like the one proposed below or the one announced today, "equality of treatment" becomes harder to ensure across cases; "predictability is destroyed" for innovators, investors, and consumers alike; and "judicial courage is impaired" as the ability (and temptation) to fit the law to the case, rather than the case to the law, grows. Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989). Just consider some of the uncertainties each part of the Court's new three-part test is sure to invite: (i) When does a customer's side-by-side use of two products qualify as "incorporation" of the products? Does hanging asbestos on the outside of a boiler count, or must asbestos be placed inside a product? And when is incorporation of a dangerous third-party product "required" as opposed to just optimal or preferred? What if a potential substitute existed, but it was less effective or more costly (surely alternatives to asbestos insulation have existed for a long time)? And what if the third-party product becomes less advantageous over time due to advancing technology (as asbestos did)? When does the defendant's duty to warn end? (ii) What will qualify as an "integrated product"? In the past, we've suggested that a "product" is whatever assemblage of parts is "placed in the stream of commerce by the manufacturer," and we've stressed the importance of maintaining the "distinction between the components added to a product by a manufacturer before the product's sale ... and those items added" later by someone else. Saratoga Fishing Co. v. J. M. Martinac & Co. , 520 U.S. 875, 883-884 [117 S.Ct. 1783, 138 L.Ed.2d 76] (1997). The Court's new standard blurs that distinction, but it is unclear how far it goes. The Court suggests a turbine and separately installed insulation may now qualify as a single "integrated product." But what about other parts connected to the turbine? Does even the propeller qualify as part of the final "integrated product" too, so that its manufacturer also bears a duty to warn about the dangers of asbestos hung around the turbine? For that matter, why isn't the entire ship an "integrated product," with a corresponding duty for all the manufacturers who contributed parts to warn about the dangers of all the other parts? And when exactly is a manufacturer supposed to "know or have reason to know" that some supplement to its product has now made a resulting "integrated product" dangerous? How much cost and effort must manufacturers expend to discover and understand the risks associated with third-party products others may be "incorporating" with their products? (iii) If a defendant reasonably expects that the manufacturer of a third-party product will comply with its own duty to warn, is that sufficient "reason to believe" that users will "realize" the danger to absolve the defendant of responsibility? Or does a defendant have to assume that the third-party manufacturer will behave negligently in rendering its own warnings? Or that users won't bother to read the warnings others offer? And what if the defendants here understood that the Navy itself would warn sailors about the need for proper handling of asbestos-did they still have to provide their own warnings? Headscratchers like these are sure to enrich lawyers and entertain law students, but they also promise to leave everyone else wondering about their legal duties, rights, and Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspecifiable Answer:

songer_genresp1

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. 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. John M. BENNETT, Appellant, v. Lawrence C. GUTMAN, Trustee and Evans-Johnson Company, purchaser, Appellees. No. 285, Docket 27386. United States Court of Appeals Second Circuit. Argued March 19, 1963. Decided March 25, 1963. Jacob W. Friedman, New York City, for appellant. Lawrence C. Gutman, New York City (Leo H. Raines, New York City, on the brief), for appellees. Before LUMBARD, Chief Judge, and CLARK and MARSHALL, Circuit Judges. LUMBARD, Chief Judge. These consolidated appeals from four orders of the United States Court for the Southern District of New York question proceedings of that court in the bankruptcy of Leatherhide Industries, Inc. Leatherhide and/or John M. Bennett, who is its president and also one of its creditors, are denominated the appellants, but for all practical purposes Bennett alone is the party behind these appeals. The record indicates that Bennett, supported in a few instances by an attorney representing a number of creditors but not the Committee of Creditors, was also the primary, if not quite the sole, source of opposition throughout the protracted proceedings below. We affirm each of the orders in question. The appellants challenge first the dismissal by Judge Bryan of a motion to review Referee Herzog’s order of August 29, 1958, adjudicating Leatherhide a bankrupt. Judge Bryan held that the matter had already been litigated and settled by an order of Judge Bicks dated September 8, 1959. Memorandum decision of Judge Bryan, June 15, 1960. No appeal was ever taken from Judge Bicks’ order. What the appellants sought to do by their motion before Judge Bryan was simply to disregard the prior order. The motion was properly dismissed. The second order under attack is an order of Judge Cashin, dated August 8, 1960, which affirmed two orders of Referee Stephenson. The first approved a compromise of disputed claims between the trustee in bankruptcy and the Evans-Johnson Company, a claimant against the bankrupt estate. Order dated November 13, 1959. The second denied leave to file out of time a petition to review the first order. Opinion dated May 3, 1960. After entry of the referee’s first order, Bennett made a series of abortive motions to secure review of it. His primary objection to the order was that the assets transferred to Evans-Johnson pursuant to the compromise were worth much more than Evans-Johnson paid for them in cash and the settlement of claims; the record leaves little doubt that Bennett’s valuation of the transferred assets was, to say the least, highly exaggerated. In any event, although the court apprised him in plenty of time of the means by which he could secure review, see Bankruptcy Act, § 39, sub. c, 11 U.S.C. § 67, sub. c, he failed to adopt these means and continued to pursue his own course, apparently indifferent to both the statutes and judicial advice. Nevertheless, Referee Stephenson accorded him a full hearing before denying leave to file a petition for review out of time. Denial was based both on a failure to show good cause for the delay in filing the petition and on a failure to show a probability of error in the original order approving the compromise. See In re Advocate, 140 F.2d 783 (2 Cir., 1944). Judge Cashin agreed with the referee as to both points. We do also. The appellants attack next an order of Judge Levet, dated December 10, 1959, which dismissed a petition of Leatherhide for reorganization under Chapter X of the Bankruptcy Act. This was the second such petition to be filed. See Leatherhide Industries, Inc. v. Lieberman, 268 F.2d 206 (2 Cir.), cert. denied, 361 U.S. 896, 80 S.Ct. 200, 4 L.Ed.2d 152 (1959). As the appellants have conceded, reorganization could not be carried through unless the bankrupt retained the assets which were transferred to the Evans-Johnson Company by the compromise referred to above. Since we have affirmed the order approving the compromise, there is no need to consider further the appeal from Judge Levet’s order. Finally, the appellants seek reversal of an order of Judge Cashin, dated October 26, 1961, in which he reaffirmed his order of August 8,1960. This order was in response to appellants’ motion for an order directing the referee to certify additional papers to the court and for reconsideration on the basis of such papers of the referee’s order denying leave to file a belated petition for review of the order of November 13, 1959. One motion for the certification of additional papers having already been granted in its entirety, Judge Cashin found that there was no justification for the belated attempt to have other papers certified. We agree. In other respects, this order duplicates Judge Cashin’s order of August 8, 1960, which we have affirmed above. All of the orders under review are affirmed. . At the time in question, this section provided : “A person aggrieved by an order of a referee may, within ten days after the entry thereof, or within such extended time as the court may for cause shown allow, file with the referee a petition for review of such order by a judge * * By Act of July 14, 1960, 74 Stat. 528, this was amended to provide that an extension of time beyond the ten-day period may be granted only if a petition for an extension of time is filed within the ten-day period. Unless a petition for review or petition for an extension of time within which to file a petition for review is filed within the ten-day period, the order of the referee becomes final. . The history of these maneuvers is set out in Referee Stephenson’s opinion of May 3, 1960, and also in Judge Cashin’s opinion of October 26, 1961, as to which see below. 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:

sc_casedisposition

B

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. PROCUNIER, CORRECTIONS DIRECTOR, et al. v. MARTINEZ et al. No. 72-1465. Argued December 3, 1973 Decided April 29, 1974 Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Marshall, Blackmun, and Rehnquist, JJ., joined-: Marshall,. J., filed a concurring opinion,, in which Brennan, J., joined and in Part II of which Douglas, J.,' joined, post, p. 422. Douglas, J., filed an opinion concurring in the judgment, post, p. 428. W. Eric Collins, Deputy Attorney General of California, argued the cause for appellants. With him on the briefs were Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chiéf Assistant Attorney General, Doris H. Maier,' Assistant Attorney General, and Robert R. Granucci and Thomas A. Brady, Deputy Attorneys General. ■William Bennett Turner argued the cause for appellees. With him on the brief were Mario Obledo, Sanford Jay Rosen, Anthony G. Amsterdam, Jack Greenberg, James M. Nabrit III, Stanley .A. Bass, Lowell Johnston, and Alice Daniel. Briefs of amici curiae urging affirmance were filed by William R. Fry for the National Paralegal Institute, and by Sheldon Krantz and Stephen Joel Trachtenberg for the Center for Criminal Justice, Boston University School of Law. Mr. Justice Powell delivered- the opinion of the ' Court. This case concerns the constitutionality of certain regulations promulgated by appellant Procunier in his. capacity as Director of the California Department of Corrections. Appellees brought a class action on behalf of themselves and. all other inmates of penal institutions under the Department’s jurisdiction to challenge the rules relating to censorship of prisoner mail and the ban against the use of law' student's and legal paraprofessionals to conduct attorney-client, interviews with inmates. Pursuant to 28 U. S. C. § 2281 a three-judge United States District Court was convened to hear appellees’ request for declaratory and injunctive relief. That court entered summary judgment enjoining continued enforcement of the rules in question and ordering appellants to submit new regulations for the court’s approval. 354 F. Supp. 1092 (ND Cal. 1973). Appellants’ first revisions resulted in counterproposals by appellees.and a court order issued May 30, 1973, requiring further modification of the proposed rules. The second set of revised regulations was approved by the District Court on July 20, 1973, over appellees’ objections. While the first proposed revisions of the Department’s regulations were pending before the District Court, appellants brought this appeal to contest that court’s decision holding the original regulations unconstitutional. We noted probable jurisdiction. 412 U. S. 948 (1973). We affirm. I - First we consider the constitutionality of the Director’s rules restricting the personal correspondence of prison inmates. Under • these regulations, correspondence between inmates of California penal institutions and persons other than licensed attorneys and holders of public office was censored for nonconformity to certain standards. Rule 2401 stated the Department’s general premise that personal correspondence by prisoners is “a privilege, not a right . . . .” More detailed regulations implemented the Department’s policy. Rule 1201 directed inmates not to write letters in which they “unduly complain” or “magnify grievances.” Rule 1205 (d) defined as contraband writings “expressing inflammatory political', racial, religious or other views or beliefs . ...” Finally, Rule 2402 (8) provided that inmates “may not send or receive letters that pertain to criminal activity; are lewd, obscene, or defamatory; contain foreign matter, or are otherwise inappropriate.” Prison employees screened both incoming and outgoing personal mail for violations of these regulations. No further criteria were provided to help members' of the mailroom staff decide' whether a particular letter contravened any prison rule or policy. When a prison employee found a letter objectionable, he could take one or more of the following actions: (1) refuse to mail or deliver the letter and return it to the author; (2) submit a disciplinary report, which could lead to suspension of mail privileges, or other sanctions; or (3) place a copy of the letter or a summary of its contents in the prisoner’s file, where it might be a factor in determining the inmate’s work and housing assignments and in setting a date for parole eligibility. The District Court held that the regulations relating to prisoner mail authorized censorship of protected expression without adequate justification in violation of the First Amendment and that they were void for vagueness. The. court also noted that the regulations failed to provide minimum procedural safeguards against error and arbitrariness in the censorship of inmate correspondence. Consequently, it enjoined their continued enforcement. Appellants contended that the District Court should have abstained from deciding these questions. In that court appellants advanced no reason for abstention other than the assertion that the federal court should defer to the California courts on the basis of comity. The District Court properly rejected this suggestion, noting’ that the mere possibility that a state court might declare the prison regulations unconstitutional is no ground for abstention. Wisconsin v. Constantineau, 400 U. S. 433, 439 (1971). Appellants now contend that we should vacate the judgment and remand the case to the District Court with instructions to abstain on the basis of two arguments not presented to it. First, they contend that any vagueness challenge to an uninterpreted state statute or regulation is a proper case for abstention. According to appellants, “[t]he very statement'by the district court that the regulations are vague constitutes a compelling reason for abstention.” Brief for Appellants 8-9. As this Court made plain in Baggett v. Bullitt, 377 U. S. 360 (1964), however, not every vagueness challenge to an uninterpreted state statute or regulation constitutes a proper case for abstention. But we need- not decide whether appellants’ contention is controlled by the analysis in Baggett, for the short answer to their argument is that these regulations were neither challenged nor invalidated solely on the ground of vagueness. Appellees also asserted, and the District Court found, that the rules relating to prisoner mail permitted censorship of constitutionally protected expression without adequate justification. In light of the successful First Amendment attack on these regulations, the District Court’s conclusion that they were also unconstitutionally vague hardly “constitutes a compelling reason for abstention.” As a second ground for abstention appellants rely on Cal. Penal Code § 2600 (4), which assures prisoners the right to receive books, magazines, and periodicals. Although they did not advance this argument to- the District Court, appellants now contend that the interpretation of the .statute by the state courts and its application to the regulations governing prisoner mail might avoid or modify the constitutional questions decided below. Thus appellants seek to establish the essential prerequisite for .abstention — “an uncertain issue of state law,” the resolution of which may eliminate or materially alter the federal constitutional question. Harman v. Forssenius, 380 U. S. 528, 534 (1965). We are not persuaded. A state court interpretation of § 2600 (4) would not avoid or substantially modify the constitutional question presented here. That statute does not contain any provision purporting to regulate censorship of personal correspondence. It only preserves the right of inmates to receive “newspapers, periodicals, and books” and authorizes prison officials to exclude “obscene publications or writings, and mail containing information concerning where, how, or from whom such matter may' be ob-. tained . . (emphasis added). And the plain meaning of the language is reinforced by recent legislative history. In 1972, a bill was introduced in the California Legislan ture to restrict censorship of personal correspondence by adding an entirely, new subsection to § 2600. The legislature passed the bill, but it was vetoed by Governor Reagan. In light of this history, we think it plain that no reasonable interpretation of § 2600 (4) would avoid or modify the federal constitutional question decided below. Moreover, we are mindful of the high cost of abstention when the federal constitutional challenge concerns facial repugnance to the First Amendment. Zwickler v. Koota, 389 U. S. 241, 252 (1967); Baggett v. Bullitt, 377 U. S., at 379. We therefore proceed to the merits. A Traditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining-internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptibly of resolution by decree. Most require expertise, comprehensive' planning, and the commitment of resources, all of which are peculiarly within .the province. of the legislative and executive branches of .''government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities. , But a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or státe institution. When a .prison regulation or practice offends á fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights. Johnson v. Avery, 393 U. S. 483, 486 (1969). This is such a case. Although the District Court found the regulations relating to prisoner mail deficient in several respects, the first and principal basis for its decision was the constitutional, command of the First Amendment, as applied to the States by the Fourteenth Amendment.. The issue before us is the. appropriate standard of review for prison regulations restricting fr.eedom of speech. This Court has not previously addressed this question, and the tension between the traditional policy of judicial restraint regarding prisoner complaints and the need to protect constitutional rights has led the' federal courts to adopt a variety of widely inconsistent approaches to the problem. Some have maintained a hands-off posture in the face of constitutional challenges to censorship' of prisoner mail. E. g., McCloskey v. Maryland, 337 F. 2d 72 (CA4 1964); Lee v. Tahash, 352 F. 2d 970 (CA8 1965) (except insofar as mail censorship rules are applied to discriminate against a particular racial or religious group); Krupnick v. Crouse, 366 F. 2d 851 (CA10 1966); Pope v. Daggett, 350 F. 2d 296 (CA10 1965). Another, has required only that censorship of personal correspondence not lack support “in any rational and constitutionally- acceptable concept of a prison system.” Sostre v. McGinnis, 442 F. 2d 178, 199 (CA2 1971), cert. denied sub nom. Oswald v. Sostre, 405 U. S. 978 (1972). At the other extreme some courts have- been willing tp require demonstration of a “compelling state interest” to justify censorship of' prisoner mail. E. g., Jackson v. Godwin, 400 F. 2d 529 (CA5 1968) (decided on both equal protection and First Amendment grounds); Morales v. Schmidt, 340 F. Supp. 544 (WD Wis. 1972); Fortune Society v. McGinnis, 319 F. Supp. 901. (SDNY 1970). Other .courts phrase the standard in similarly demanding terms of “clear and present danger.” E. g., Wilkinson v. Skinner, 462 F. 2d 670, 672-673 (CA2 1972). And.there are various intermediate positions, most notably the view that a “regulation or practice which restricts the right of Tree expression that a prisoner would have enjoyed if he had not been imprisoned must be related both reasonably and necessarily. to the advancement of some justifiable purpose.” E. g., Carothers v. Follette, 314 F. Supp. 1014, 1024 (SDNY 1970) (citations omitted). See also Gates v. Collier, 349 F. Supp. 881, 896 (ND Miss. 1972); LeMon v. Zelker, 358 F. Supp. 554 (SDNY 1972). This array , of disparate approaches áríd the absence of any generally accepted standard for testing the constitutionality of prisoner mail censorship regulations disserye both the' competing interests at stake. On the one hand, the First' Amendment interests implicated by censorship of inmate • correspondence are given only haphazard and inconsistent protection. On the other, the uncertainty of the constitutional standard makes it impossible for correctional officials to anticipate what is required of them and invites repetitive, piecemeal litigation on behalf of inmates. The result has been unnecessarily ,to perpetuate the involvement of the federal courts in ■ affairs of prison administration. Our task is to formulate a standard of review for prisoner mail censorship .that will be responsive to these concerns. B We begin our analysis of the proper standard of review for constitutional challenges to censorship of prisoner mail, with a somewhat different premise from that taken by the other federal courts that have considered the question. For the most part, these courts have dealt with challenges to censorship of prisoner mail as involving broad questions of “prisoners’ rights.” This case is no exception. The District Court stated the issue in general terms as “the applicability of First Amendment rights to prison inmates . . . ,” 354 F. Supp., at 1096, and the arguments of the parties reflect the assumption that the resolution of this case requires an assessment of the extent to which prisoners may claim First Amendment freedoms. In our view this inquiry is unnecessary. In determining the proper standard of review for prison restrictions on inmate correspondence, we have no occasion to consider the extent to which an individual’s right to free speech survives incarceration, for a narrower basis of decision is at hand. In the case of direct personal correspondence between inmates and those who have a particularized interest in communicating with them, mail censorship implicates' more than the right of prisoners. Communication by letter is not accomplished by the act of writing words on paper. Rather, it is effected only when the letter is read by the addressee. Both parties to the correspondence have an interest in securing that result, and censorship of the communication between them necessarily impinges on the interest of each. Whatever the status of a prisoner’s claim to uncensored correspondence with an -outsider, it is plain that the latter’s interest is grounded in the First Amendment’s, guarantee of freedom of speech. And this does not depend .on whether the nonprisoner correspondent is the author or intended recipient of a particular letter, for the addressee as well as the sender of direct personal correspondence derives from the First and Fourteenth Amendments a protection against unjustified governmental interference with the intended communication. Lamont v. Postmaster General, 381 U. S. 301 (1965); accord, Kleindienst v. Mandel, 408 U. S. 753, 762-765 (1972); Martin v. City of Struthers, 319 U. S. 141, 143 (1943). We do not deal here with difficult questions of the so-called “right to hear” and third-party standing but with a particular means of communication ■ in which the interests of both parties.are inextricably meshed. The wife of a prison inmate who is not permitted to read all' that her husband wanted to say to her has suffered an abridgment of her interest in communicating with him as plain as that which results from censorship of her letter to him. In either event, censorship of prisoner mail works a consequential restriction on the First and Fourteenth Amendments rights of those who are not prisoners. Accordingly, we reject any attempt to justify censorship of inmate correspondence merely by reference to Certain assumptions about the legal status of prisoners. Into this category of argument falls appellants’ contention that “an inmate’s rights with reference to social correspondence are something fundamentally different than those enjoyed by his free brother.” Brief for Appellants 19. This line of argument and the undemanding standard of review it is intended to support fail to recognize that the First Amendment liberties of free citizens are implicated in censorship of prisoner mail. We therefore turn for guidance, not to cases involving questions of “prisoners’ rights,” but to decisions of this Court dealing with the general problem of incidental restrictions on First Amendment liberties imposed in furtherance of legitimate governmental activities. As the Court noted in Tinker v. Des Moines School District, 393 U. S. 503, 506 (1969), First Amendment guarantees must be “applied in light of the special characteristics of the . . . environment.” Tinker concerned the interplay between the right -to freedom of speech , of public high school students and “the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.” Id., at 507. In overruling a school regulation prohibiting .the wearing of antiwar armbands, the Court undertook a careful analysis of the legitimate requirements of orderly school administration in order to ensure that the students were afforded maximum freedom of speech consistent with those requirements. The same approach was followed in Healy v. James, 408 U. S. 169 (1972), where the Court considered the refusal of a state college to grant official recognition to a group of students who wished to organize a local chapter of the Students for a Democratic Society (SDS), a national student organization noted for political activism and campus disruption.. The Court found that neither the identification of the local student group with the national SDS, nor the purportedly dangerous political philosophy of the local group, nor the college administration’s fear of future, unspecified disruptive activities by the students could justify the incursion on the right of free association. ' The Court also found, however, that this right could be limited if necessary to prevent campus disruption, id., at 189-190, n. 20, and remanded the case for determination of whether the students had in fact refused to accept reasonable regulations governing student conduct. In United States v. O’Brien, 391 U. S. 367 (1968), the Court dealt with incidental restrictions on free speech occasioned by the exercise of the governmental power to conscript men for military service. O’Brien had burned his Selective Service registration certificate on the steps of a courthouse in order to dramatize his opposition to the draft and to our country’s involvement in Vietnam. He was convicted of violating a provision of the Selective Service law that had recently been amended to prohibit knowing destruction or mutilation of registration certificates. O’Brien argued that the purpose and effect of the amendment were to abridge free expression and that the statutory provision was therefore unconstitutional, both as enacted and as applied to him. Although O’Brien’s activity involved “conduct” rather than pure “speech,” the Court did not define away the First Amendment concern, and neither did it rule that the presence- of a communicative intent necessarily rendered O’Brien’s actions -immune to governmental regulation. Instead, it enunciated the following four-part test: “[A] government regulation is sufficiently justified .if.it is within the constitutional power of the Government; if it furthers an .important or substantial governmental interest; if the governmental interest is unrelated to the suppression,of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest/’ Id., at 377'. Of course, none of these precedents directly, controls the instant case. In O’Brien the Court considered a federal statute which on its face prohibited certain conduct having no necessary connection with freedom of speech. This led the Court to differentiate between “speech” and “nonspeech” elements of a single course of conduct, a distinction that has little relevance here. Both Tinker and Heady concerned First and Fourteenth Amendment liberties in the context of state educational institutions, a circumstance involving rather different governmental interests than are at. stake here. In broader terms,' however, these precedents involved incidental restrictions on First Amendment liberties by governmental action in furtherance of legitimate and substantial state interest other than suppression of expression. In this sense these cases aré generally analogous to our present inquiry. ' The case at hand arises in the context of prisons. One of. the primary functions of government is the preservation of societal order through enforcement of the criminal íaw, and th.e maintenance of penal institutions is an essential part of that task. The identifiable governmental interests at stake in this task are the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners. While the weightof professional opinion, seems to be that inmate freedom to correspond with outsiders advances rather than retards the goal of rehabilitation, the legitimate governmental interest in the order and security of penal institutions justifies the imposition of certain restraints on inmate correspondence. Perhaps the most obvious example of justifiable censorship of prisoner mail would be refusal to send or deliver letters concerning escape plans or containing other information concerning proposed criminal activity, whether within or without the prison. Similarly, prison officials may properly refuse to transmit encoded messages. Other less obvious possibilities come to mind, but it is not our purpose to survey the range of circumstances in which particular restrictions on prisoner mail might be warranted by the legitimate demands of prison administration as they exist from time to time in the various kinds of ,penal institutions found in this country. Our. task is to determine the proper, standard for deciding whether a particular regulation or practice relating to inmate correspondence constitutes an impermissible restraint of First Amendment liberties. Applying the teachings of our prior decisions to the instant context, we hold that censorship of prisoner mail is .justified if the following criteria are met. First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad. This does not mean, of course, that, prison administrators may be required to show with certainty that adverse consequences would flow from the failure to censor a particular letter. Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator’s duty. But any regulation or practice that restricts inmate correspondence must be generally necessary to protect one or more of the legitimate governmental interests identified above. c On the basis of this standard, we affirm the judgment of the District Court. The regulations invalidated by that court authorized, inter alia, censorship of statements that “unduly complain” or “magnify grievances,” expression of “inflammatory political, racial, religious or other views,” and matter deemed “defamatory” or “otherwise inappropriate.” These regulations fairly invited prison officials and employees to apply their own personal prejudices and opinions as standards for prisoner mail censorship. Not surprisingly, some prison officials used the extraordinary latitude for discretion authorized by the regulations to suppress unwelcome criticism. For ex.ample, at one institution under the Department’s jurisdiction, the checklist used by the maiboom staff authorized rejection of letters “criticizing policy, rules or officials,” and the maiboom sergeant stated in a deposition that he would reject as “defamatory” letters “belittling staff or our judicial system or anything connected with Department of Corrections.” • Correspondence was also censored for “disrespectful comments,” “derogatory remarks,” and the like. Appellants have failed to show that these broad restrictions on prisoner mail were in any way necessary to the furtherance of a governmental interest unrelated to the suppression of expression. Indeed, the heart of appellants’ position is not that the regulations are justified by a legitimate governmental interest but that they do not need to be. This misconception is not only stated affirmatively; it also• underlies appellants’ discussion of the particular regulations under attack. For example, appellants’ sole defense of the prohibition against matter that is “defamatory” or “otherwise inappropriate” is that ■it is “within the discretion of the prison administrators.” Brief for Appellants 21. Appellants contend that statements that “magnify grievances” or “unduly complain” are. censored “as a precaution against flash riots and in the' ' furtherance of inmate rehabilitatipn.” Id., at 22. But they do not suggest how the magnification of grievances or undue complaining,, which presumably. occurs in outgoing letters, could .possibly lead to flash riots, nor do they specify what contribution the-suppression of complaints makes to the rehabilitation of criminals. And appellants defend the ban against “inflammatory political, racial, religious or other views” on the ground that “[s]uch matter clearly presents a danger to prison security . . . Id., at 21. The regulation, however, is not narrowly drawn to reach only material that might be thought to encourage violence nor is its application limited to incoming letters. In short, the Department’s regulations authorized censorship of prisoner mail far broader than any legitimate interest of penal administration demands ¿nd were properly found invalid by the District Court. D We also agree with the District Court that the decision to censor or withhold délivery of a particular letter must be accompanied by minimum procedural safeguards. The interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a “liberty” interest within the meaning of the Fourteenth Amendment even' though qualified of necessity by the circumstance of imprisonment. As such, it-is protected from arbitrary governmental invasion. See Board of Regents v. Roth, 408 U. S. 564 (1972); Perry v. Sindermann, 408 U. S. 593 (1972). The District Court required that an inmate be notified of the rejection of a letter written by or addressed to him, that the author of that letter be given a reasonable opportunity to protest that decision, and that complaints be referred to a prison official other than the person who originally disapproved the correspondence. These requirements do not appear to be unduly burdensome, nor do appellants so contend. Accordingly, we affirm the judgment of the District Court with respect to the Department’s regulations relating to prisoner mail. II The District Court' also enjoined continued enforcement of Administrative Rule MV-IV-02, which provides in pertinent part: “Investigators for an attorney-of-record will be confined-to not more than two. Such investigators must be licensed by the State or must be members of the State Bar. Designation must be made in writing by the Attorney.” By restricting access to prisoners to members of the bar and licensed private investigators, this regulation imposed an absolute ban on the use by attorneys of law students and legal paraprofessionals to interview inmate clients. In fact, attorneys could not even, delegate to such persons the task of obtaining prisoners’ signatures on legal documents. The District Court reasoned that this rule constituted an unjustifiable restriction on the right of access to the courts. We agree. The' constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights. This means that inmates must have a reasonable opportunity to seek and receive the assistance of attorneys. Regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid. Ex parte Hull, 312 U. S. 546 (1941). The District Court found that the rule restricting attorney-client interviews to members of the bar and licensed private investigators inhibited adequate professional representation of indigent inmates. The remoteness of many California penal institutions makes a personal visit to an inmate client a time-consuming undertaking. The court reasoned that the ban against the use of law students or other paraprofessionals for attorney-client interviews would deter some lawyers from representing prisoners who could not afford to pay for their traveling time or that of licensed private investigators. And those lawyers who agreed to do so would waste time that might be employed more efficaciously in working, on the inmates’ legal problems. Allowing law students and paraprofessionals to interview inmates might well reduce the cost of legal representation for prisoners. The District Court therefore concluded that the régulation imposed a substantial burden on the right of access to the courts. As the District Court recognized, this conclusion does not end the inquiry, for prison administrators are not required to adopt every proposal that may be thought to facilitate prisoner access to the courts. The extent to which that right is burdened by a particular regulation or practice must be weighed against the legitimate interests of penal administration, and the proper regard that judges should give to the expertise and discretionary authority of correctional officials. In this case the ban against the use of law students and other paraprofes-. sional personnel was absolute. Its prohibition was not limited to prospective interviewers who posed some color-able threat to security or to those inmates thought to be especially dangerous. Nor was it shown that a less restrictive regulation would unduly burden the administrative task of screening and monitoring visitors. Appellants’ enforcement of the regulation in question also created an arbitrary distinction between law students employed by practicing attorneys, and those associated with law school programs providing legal assistance to prisoners. While the Department flatly prohibited interviews of any sort by law students working for attorneys, it freely allowed participants of a number of law school programs to enter the prisons and meet with inmates. These largely unsupervised students were admitted without any security check other than verification of their enrollment in a school program. Of course, the fact that appellants have allowed some persons to conduct attorney-client interviews with prisoners does not mean that they are required to admit others, but the arbitrariness of the distinction between the two categories of law students does reveal the absence of any real justification for the sweeping prohibition of Administrative Rule MV-IV-02. We cannot say that the District Court erred in invalidating this regulation. This result is mandated by our decision in Johnson v. Avery, 393 U. S. 483 (1969). There the Court struck down a prison regulation prohibiting any inmate from advising or assisting another in the preparation of legal documents. Given the inadequacy of alternative sources of legal assistance, the rule had the effect of denying to illiterate or poorly educated inmates any opportunity to vindicate possibly valid constitutional claims;. The Court found that the regulation impermissibly burdened the right of access to the courts despite the not insignificant state interest in preventing the establishment of personal power structures by unscrupulous jailhouse lawyers and the attendant problems of prison discipline that follow. The countervailing state interest in Johnson is, if anything, more persuasive than any interest advanced by appellants in the instant case. The judgment is Affirmed. Director’s Rule 2401 provided: “The sending and receiving of mail is a privilege, not a right, and any violation of the rules governing mail privileges either by you or by your correspondents may cause suspension of the mail privileges.” Director’s Rule 1201 provided: “INMATE BEHAVIOR: Always conduct yourself in an orderly manner. Do not fight or take part in horseplay or physical encounters except as part of the regular athletic program. Do not agitate, unduly complain, magnify grievances, or behave in any way which might lead to violence.” •• It is undisputed that the phrases “unduly complain” and "magnify grievances” were applied to personal correspondence. Director’s Rule 1205 provided: “The following is contraband: “d. Any writings or voice recordings expressing inflammatory political, racial, religious or other views or beliefs when not in the immediate possession, of the originator, or when the originator’s possession is used to subvert prison discipline by display or circulation.” Rule 1205 also provides that writings ’ “not defined as contraband under this rule, but which, if circulated among other inmates, would in the judgment of the warden or superintendent tend to subvert prison order, or discipline, may be placed in the inmate’s property, to which he shall have accfes under supervision.” At the time of appellees’ amended complaint, Rule 2402 (8) included prohibitions against “prison gossip or discussion of other inmates.” Before the first opinion of the District Court, these provisions were deleted, and the phrase “contain foreign matter” was substituted in their stead. In Baggett the Court considered the constitutionality of loyalty oaths required of certain state employees as a condition of employment.- For the purpose of applying the doctrine of abstention the Court distinguisherhbetween two kinds of vagueness attacks. Where the case turns on the-applicability of a state statute or regulation to a particular person of a defined course of conduct, resolution of the unsettled question of state law may eliminate any need for constitutional adjudication. 377 U. S., at 376-377. Abstention is therefore appropriate. Where, however, as in this case, the statute or regulation is challenged as vague because individuals to whom it plainly applies simply cannot understand what is required of them and do not wish to forswear all activity arguably within the scope of the vague terms, abstention is not required. Id., at 378. In such a case no single adjudication by a state court could eliminate the constitutional difficulty. Rather it would require “extensive adjudications, under the impact of a variety of factual situations,” to bring the challenged statute or regulation “within the bounds of permissible constitutional certainty.” Ibid! Cal. Penal Code §2600 provides that “[a] sentence of imprisonment in. a state prison for. any term suspends all the civil rights of .the person so sentenced . . . ,” and it' allows for partial restoration of those rights by the California Adult Authority. The .statute then declares, in pertinent part: “This section shall be construed so as not to deprive such person of the following civil rights, in accordance with the laws of this state: “ (4) To purchase, receive, and read any and ah newspapers, periodicals, and books accepted for distribution by the United States Post Office. Pursuant to the provisions of this section, prison authorities shall have the authority- to exclude obscene publications or writings, and mail containing information concerning where, how, or from whom such matter may be obtained; and any-matter of a character tending to incite murder, arson, riot, violent racism, or any other form of violence; and any matter concerning gambling or a lottery... .” Appellants argue that the correctness of their abstention argument is demonstrated by the District Court’s disposition of Count II of appellees’ amended complaint. In Count II appellees challenged the mail regulations on the ground that their application to correspondence between inmates and attorneys contravened the Sixth and Fourteenth Amendments. Appellees later discovered that, a case was then pending before the Supreme Court of California in which the application of the prison rules to attorney-client mail was being attacked under subsection (2) of §2600, which provides: “This section shall be construed so as not to deprive [an inmate] of the following civil rights, in accordance with the laws of this state: “(2) To correspond, confidentially, with any member of the State Bar, or holder of public office, provided that the prison authorities may open and inspect such mail to search for contraband.” The District Court did stay its hand, and the subsequent decision in In re Jordan, 7 Cal. 3d 930, 600 P. 2d 873 (1972) (holding that § 2600 (2) barred censorship of attorney-client correspondence), rendered Count II moot. This disposition of the claim relating to attorney-client mail is, however, quite irrelevant to appellants’ contention that the District Court should have Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:

sc_petitionerstate

60

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. WILL, U. S. DISTRICT JUDGE v. UNITED STATES. No. 36. Argued October 17-18, 1967. Decided November 13, 1967. Harvey M. Silets argued the cause and filed briefs for petitioner. Richard A. Posner argued the cause for the United States. With him on the brief were Acting Solicitor General Spritzer, Assistant Attorney General Rogovin and Joseph M. Howard. Mr. Chief Justice Warren delivered the opinion of the Court. The question in this case is the propriety of a writ of. mandamus issued by the Court of Appeals for the Seventh Circuit to compel the petitioner, a United States District Judge, to vacate a portion of a pretrial order in a criminal case. Simmie Horwitz, the defendant in a criminal tax evasion case pending before petitioner in the Northern District of Illinois, filed a motion for a bill of particulars, which contained thirty requests for information. The Government resisted a number of the requests, and over the course of several hearings most of these objections were either withdrawn by the Government or satisfied by an appropriate narrowing of the scope of the bill of particulars by petitioner. Ultimately the dispute centered solely on defendant’s request number 25. This request sought certain information concerning any oral statements of the defendant relied upon by the Government to support the charge in the indictment. It asked the names and addresses of the persons to whom such statements were made, the times and places at which they were made, whether the witnesses to the statements were government agents and whether any transcripts or mem-oranda of the statements had been prepared by the witnesses and given to the Government. After considerable discussion with counsel for both sides, petitioner ordered the Government to furnish the information. The United States Attorney declined to comply with the order on the grounds that request number 25 constituted a demand for a list of prosecution witnesses and that petitioner had no power under Rule 7 (f) of the Federal Rules of Criminal Procedure to require the Government to produce such a list. Petitioner indicated his intention to dismiss the indictments against Horwitz because of the Government’s refusal to comply with his order for a bill of particulars. Before the order of dismissal was entered, however, the Government sought and obtained ex parte from the Seventh Circuit a stay of all proceedings in the case. The Court of Appeals also granted the Government leave to file a petition for a writ of mandamus and issued a rule to show cause why such a writ should not issue to compel petitioner to strike request number 25 from his bill of particulars order. This case was submitted on the briefs, and the Court of Appeals at first denied the writ. The Government petitioned for reconsideration, however, and the Court of Appeals, without taking new briefs or hearing oral argument, reversed itself and without opinion issued a writ of mandamus directing petitioner “to vacate his order directing the Government to answer question 25 in defendant's motion for bill of particulars.” We granted certiorari, 386 U. S. 955 (1967), because of the wide implications of the decision below for the orderly administration of criminal justice in the federal courts. We vacate the writ and remand the case to the Court of Appeals for further proceedings. Both parties have devoted substantial argument in this Court to the propriety of petitioner’s order. In our view of the case, however, it is unnecessary to reach this question. The peremptory writ of mandamus has traditionally been used in the federal courts only “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Assn., 319 U. S. 21, 26 (1943). While the courts have never confined themselves to an arbitrary and technical definition of “jurisdiction,” it is clear that only exceptional circumstances amounting to a judicial “usurpation of power” will justify the invocation of this extraordinary remedy. De Beers Consol. Mines, Ltd. v. United States, 325 U. S. 212, 217 (1945). Thus the writ has been invoked where unwarranted judicial action threatened “to embarrass the executive arm of the Government in conducting foreign relations,” Ex parte Peru, 318 U. S. 578, 588 (1943), where it was the only means of forestalling intrusion by the federal judiciary on a delicate area of federal-state relations, Maryland v. Soper, 270 U. S. 9 (1926), where it was necessary to confine a lower court to the terms of an appellate tribunal's mandate, United States v. United States Dist. Court, 334 U. S. 258 (1948), and where a district judge displayed a persistent disregard of the Rules of Civil Procedure promulgated by this Court, La Buy v. Howes Leather Co., 352 U. S. 249 (1957); see McCullough v. Cosgrave, 309 U. S. 634 (1940); Los Angeles Brush Mfg. Corp. v. James, 272 U. S. 701, 706, 707 (1927) (dictum). And the party seeking mandamus has “the burden of showing that its right to issuance of the writ is ‘clear and indisputable.' ” Bankers Life & Cas. Co. v. Holland, 346 U. S. 379, 384 (1953); see United States v. Dwell, 172 U. S. 576, 582 (1899). We also approach this case with an awareness of additional considerations which flow from the fact that the underlying proceeding is a criminal prosecution. All our jurisprudence is strongly colored by the notion that appellate review should be postponed, except in certain narrowly defined circumstances, until after final judgment has been rendered by the trial court. See, e. g., Judiciary Act of 1789, §§ 21, 22, 25, 1 Stat. 73, 83, 84, 85; Cobbledick v. United States, 309 U. S. 323, 326 (1940); McLish v. Roff, 141 U. S. 661 (1891). This general policy against piecemeal appeals takes on added weight in criminal cases, where the defendant is entitled to a speedy resolution of the charges against him. DiBella v. United States, 369 U. S. 121, 126 (1962). Moreover, “in the federal jurisprudence, at least, appeals by the Government in criminal cases are something unusual, exceptional, not favored,” Carroll v. United States, 354 U. S. 394, 400 (1957), at least in part because they always threaten to offend the policies behind the double-jeopardy prohibition, cf. Fong Foo v. United States, 369 U. S. 141 (1962). Government appeal in the federal courts has thus been limited by Congress to narrow categories of orders terminating the prosecution, see 18 U. S. C. § 3731, and the Criminal Appeals Act is strictly construed against the Government’s right of appeal, Carroll v. United States, 354 U. S. 394, 399-400 (1957). Mandamus, of course, may never be employed as a substitute for appeal in derogation of these clear policies. E. g., Fong Foo v. United States, 369 U. S. 141 (1962); Parr v. United States, 351 U. S. 513, 520-521 (1956); Bank of Columbia v. Sweeny, 1 Pet. 567, 569 (1828). Nor is the case against permitting the writ to be used as a substitute for interlocutory appeal “made less compelling ... by the fact that the Government has no later right to appeal.” DiBella v. United States, 369 U. S. 121, 130 (1962). This is not to say that mandamus may never be used to review procedural orders in criminal cases. It has been invoked successfully where the action of the trial court totally deprived the Government of its right to initiate a prosecution, Ex parte United States, 287 U. S. 241 (1932), and where the court overreached its judicial power to deny the Government the rightful fruits of a valid conviction, Ex parte United States, 242 U. S. 27 (1916). But this Court has never approved the use of the writ to review an interlocutory procedural order in a criminal case which did not have the effect of a dismissal. We need not decide under what circumstances, if any, such a use of mandamus would be appropriate. It is enough to note that we approach the decision in this case with an awareness of the constitutional precepts that a man is entitled to a speedy trial and that he may not be placed twice in jeopardy for the same offense. In light of these considerations and criteria, neither the record before us nor the cryptic order of the Court of Appeals justifies the invocation of the extraordinary writ in this case. We do not understand the Government to argue that petitioner was in any sense without “jurisdiction” to order it to file a bill of particulars. Suffice it to note that Rule 7 (f) of the Federal Rules of Criminal Procedure specifically empowers the trial court to “direct the filing of a bill of particulars,” and that federal trial courts have always had very broad discretion in ruling upon requests for such bills, compare Wong Tai v. United States, 273 U. S. 77, 82 (1927). Furthermore, it is not uncommon for the Government to be required to disclose the names of some potential witnesses in a bill of particulars, where this information is necessary or useful in the defendant’s preparation for trial. See, e. g., United States v. White, 370 F. 2d 559 (C. A. 7th Cir. 1966). See also United States v. Debrow, 346 U. S. 374, 378 (1953). The Government seeks instead to justify the employment of the writ in this instance on the ground that petitioner’s conduct displays a “pattern of manifest noncompliance with the rules governing federal criminal trials.” It argues that the federal rules place settled limitations upon pretrial discovery in criminal cases, and that a trial court may not, in the absence of compelling justification, order the Government to produce a list of its witnesses in advance of trial. It argues further that in only one category of cases, i. e., prosecutions for treason and other capital offenses, is the Government required to turn over to the defense such a list of its witnesses. A general policy of requiring such disclosure without a particularized showing of need would, it is contended, offend the informant’s privilege. Petitioner, according to the Government, adopted “a uniform rule in his courtroom requiring the government in a criminal case to furnish the defense, on motion for a bill of particulars, a list of potential witnesses.” The Government concludes that since petitioner obviously had no power to adopt such a rule, mandamus will lie under this Court’s decision in La Buy v. Howes Leather Co., 352 U. S. 249 (1957), to correct this studied disregard of the limitations placed upon the district courts by the federal rules. The action of the Court of Appeals cannot, on the record before us, bear the weight of this justification. There is absolutely no foundation in this record for the Government’s assertions concerning petitioner’s practice. The legal proposition that mandamus will lie in appropriate cases to correct willful disobedience of the rules laid down by this Court is not controverted. But the position of the Government rests on two central factual premises: (1) that petitioner in effect ordered it to produce a list of witnesses in advance of trial; and (2) that petitioner took this action pursuant to a deliberately adopted policy in disregard of the rules of criminal procedure. Neither of these premises finds support in the record. Petitioner repeatedly and, we think, correctly emphasized that request number 25 did not call for a list of government witnesses. He carefully noted that it was utterly immaterial under the terms of request number 25 whether the Government planned to call any of the individuals whose names were sought to the witness stand during the trial. Furthermore, it is clear as a practical matter that the Government’s proof in this case, as in any prosecution of this complex nature, will extend far beyond mere damaging admissions of the defendant, and that witnesses will in all probability be called who have never heard Horwitz make any incriminating statements. Nor, if the list of people who have allegedly heard Hor-witz make damaging admissions is long, is it likely that they will all be called to testify for the Government. Thus while the two categories have a clear probable overlap, they are not co-extensive. And, as petitioner stated in the opinion accompanying his original order to the Government to file a bill of particulars: “The reason for requiring disclosure of their names ... is not that they will or may be witnesses, but that the defendant requires identification of the times, places and persons present in order to prepare his defense.” Indeed, petitioner excused the Government from answering request number 29 (a), which was so broad as to constitute in effect a demand for a list of prosecution witnesses. Finally, it should be noted that in the opinion accompanying the original order, petitioner averred his willingness to narrow the order of disclosure upon a showing by the Government “that such disclosure will involve physical risk to the individuals or prejudice the government in its ability to produce its evidence.” He repeated this offer numerous times in the subsequent hearings on the Government’s objections to the bill, but the United States Attorney never suggested that such a showing could be made in this case. The record is equally devoid of support for the notion that petitioner had adopted a deliberate policy in open defiance of the federal rules in matters of pretrial criminal discovery. The extended colloquy between petitioner and government counsel reveals at most that petitioner took a generally liberal view of the discovery rights of criminal defendants. But petitioner was careful never to divorce his ruling from his view of the legitimate needs of the defendant in the case before him, and there is no indication that he considered the case to be governed by a uniform and inflexible rule of disclosure. Thus the most that can be claimed on this record is that petitioner may have erred in ruling on matters within his jurisdiction. See Parr v. United States, 351 U. S. 513, 520 (1956). But “[t]he extraordinary writs do not reach to such cases; they may not be used to thwart the congressional policy against piecemeal appeals.” Id., at 520-521. Mandamus, it must be remembered, does not “run the gauntlet of reversible errors.” Bankers Life & Cas. Co. v. Holland, 346 U. S. 379, 382 (1953). Its office is not to “control the decision of the trial court,” but rather merely to confine the lower court to the sphere of its discretionary power. Id., at 383. Thus the record before us simply fails to demonstrate the necessity for the drastic remedy employed by the Court of Appeals. Even more important in our view, however, than these deficiencies in the record is the failure of the Court of Appeals to attempt to supply any reasoned justification of its action. Had the Government in fact shown that petitioner adopted a policy in deliberate disregard of the criminal discovery rules and that this policy had proved seriously disruptive of the efficient administration of criminal justice in the Northern District of Illinois, it would have raised serious questions under this Court’s decision in La Buy v. Howes Leather Co., 352 U. S. 249 (1957) , In La Buy, however, we specifically relied upon evidence in the record which showed a pattern of improper references of cases to special masters by the District Judge. 352 U. S., at 258. There is no evidence in this record concerning petitioner’s practice in other cases, aside from his own remark that the Government was generally dissatisfied with it, and his statements do not reveal any intent to evade or disregard the rules. We do not know what he ordered the Government to reveal under what circumstances in other cases. This state of the record renders the silence of the Court of Appeals all the more critical. We recognized in La Buy that the familiarity of a court of appeals with the practice of the individual district courts within its circuit was relevant to an assessment of the need for mandamus as a corrective measure. See 352 U. S., at 258. But without an opinion from the Court of Appeals we do not know what role, if any, this factor played in the decision below. In fact, we are in the dark with respect to the position of the Court of Appeals on all the issues crucial to an informed exercise of our power of review. We do not know: (1) what the Court of Appeals found petitioner to have done; (2) what it objected to in petitioner’s course of conduct — whether it was the order in this particular case or some general practice adopted by petitioner in this and other cases; (3) what it thought was the proper scope of a bill of particulars under Rule 7 (f) and what limitations it thought the criminal rules placed •upon the particular or generalized discretion of a district court to order the Government to file such a bill; or (4) what relevance, if any, it attached to the fact that this order was entered in a criminal case, in assessing the availability of mandamus. We cannot properly identify the questions for decision in the case before us without illumination of this unclear record by the measured and exposed reflection of the Court of Appeals. Due regard, not merely for the reviewing functions of this Court, but for the “drastic and extraordinary” nature of the mandamus remedy, Ex parte Fahey, 332 U. S. 258, 259 (1947), and for the extremely awkward position in which it places the District Judge, id., at 260, demands that a court issuing the writ give a reasoned exposition of the basis for its action. Mandamus is not a punitive remedy. The entire thrust of the Government's justification for mandamus in this case, moreover, is that the writ serves a vital corrective and didactic function. While these aims lay at the core of this Court’s decisions in La Buy and Schlagenhauf v. Holder, 379 U. S. 104 (1964), we fail to see how they can be served here without findings of fact by the issuing court and some statement of the court’s legal reasoning. A mandamus from the blue without rationale is tantamount to an abdication of the very expository and supervisory functions of an appellate court upon which the Government rests its attempt to justify the action below. The peremptory common-law writs are among the most potent weapons in the-judicial arsenal. “As extraordinary remedies, they are reserved for really extraordinary causes.” Ex parte Fahey, 332 U. S. 258, 260 (1947). There is nothing in the record here to demonstrate that this case falls into that category, and thus the judgment below cannot stand. What might be the proper decision upon a more complete record, supplemented by the findings and conclusions of the Court of Appeals, we cannot and do not say. Hence the writ is vacated and the cause is remanded to the Court of Appeals for the Seventh Circuit for further proceedings not inconsistent with this opinion. is s0 ordered. Mr. Justice Marshall took no part in the consideration or decision of this case. Request number 25 originally read: “25. If [the Government relies upon any oral statements of the defendant], state with respect to each such statement, if there was more than one: “a. The name and address of the person to whom the statement was made; “b. The date on which the statement was made; “c. The place where it was made; “d. The substance of the statement; “e. Whether the person to whom the statement was made was a Government Agent at the time of the statement; “f. The names and addresses of any other persons present at the time the statement was made; and “g. Whether a written memorandum or verbatim transcript of the oral statement was made, and, if. so, whether the Government has possession of the memorandum or transcript.” The Government objected, inter alia, to compliance with part “d” on work-product grounds. At first petitioner sustained this objection and struck part “d” altogether; however, he later ordered the Government to reveal the substance of statements made to government agents, but not of those made to private parties. The order of the Court of Appeals denying the writ read, in its entirety: “This is a petition by the government for writ of mandamus to compel respondent, a district court judge, to vacate his order which effectually directs the government in a criminal cause to give the defendant names and addresses of persons to whom defendant in said cause made oral statements to support the charges in the indictments. Briefs have been filed in this court by both parties. The court has considered the briefs and is fully informed of the points made and the positions of the parties with respect to the issue, and “The court finds that the order subject of the petition is not an appealable order, and a review of it would offend the policy against piecemeal appeals in criminal cases, Cobbledick v. United States, 309 U. S. 323; that mandamus may not be used as a means of reviewing the non-appealable order, Boche v. Evaporated Milk Association, 319 U. S. 21; that federal courts use mandamus for the traditional purpose of confining a district court to a lawful exercise of its jurisdiction or to compel it to exercise its proper jurisdiction, Roche v. Evaporated Milk Association; that the district judge’s order upon the government to furnish names and addresses of witnesses to a defendant may be erroneous, a question we do not decide, but the ruling itself was within the court’s jurisdiction, Roche v. Evaporated Milk Association; that the ruling can be reviewed on appeal from a final judgment; and that there is no question here that the district judge refused to exercise his proper jurisdiction. “It Is Therefore Ordered that the petition for writ of mandamus be and it is hereby denied.” The original order denying the writ was entered on July 12, 1966. On August 16, 1966, the court granted the Government’s petition for reconsideration, remarking only that: “The court finds that in the circumstances of this particular case the court should consider the merits of the ruling of the district court challenged by the government, rather than to remit the government to a radical alternative appealable judgment available to the trial judge upon the government’s persistent refusal to comply; “It is therefore ordered that the order of this court of July 12, 1966, be and it is hereby vacated, and the cause is taken by the court upon the petition for the writ, the briefs of both parties and the record.” Subsequently, on October 4, 1966, the Court of Appeals granted the writ. Its entire order reads as follows: “This cause came on to be heard upon the Government’s petition for writ of mandamus ordering respondent to vacate his order directing the Government to answer question 25 in defendant’s motion for bill of particulars, which question sought, among other things, the names and addresses of persons to whom defendant made oral statements supporting the indictment charging wilful evasion of income tax, and which statements the Government would rely upon at the trial; upon the rule issued upon respondent to show cause why the writ should not issue; upon the brief of respondent answering the rule, and the brief of the Government; and upon the record. “And the Court having on August 16, 1966 vacated its July 12, 1966 order denying the writ, and having reconsidered the question, “It Is Ordered that a writ of mandamus issue as prayed in the Government’s petition directing respondent to vacate his order directing the Government to answer question 25 in defendant’s motion for bill of particulars.” It is likewise unnecessary for us to reach the question whether the writ in the circumstances of this case may be said to issue in aid of an exercise of the Court of Appeals’ appellate jurisdiction. See 28 U. S. C. § 1651; Roche v. Evaporated Milk Assn., 319 U. S. 21, 25 (1943). Compare In re United States, 348 F. 2d 624 (C. A. 1st Cir. 1965), with United States v. Bondy, 171 F. 2d 642 (C. A. 2d Cir. 1948). In our view, even assuming that the possible future appeal in this case would support the Court of Appeals’ mandamus jurisdiction, it was an abuse of discretion for the court to act as it did in the circumstances of this case. Thus it is irrelevant, and we do not decide, whether the Government could appeal in the event petitioner dismissed the Horwitz indictments because of its refusal to comply with his bill of particulars order. Both parties agree that it is highly doubtful that it could appeal. See United States v. Apex Distrib. Co., 270 F. 2d 747 (C. A. 9th Cir. 1959). The Government argues that it is unseemly to force it to defy the court in order to seek review of its order, and doubly so because it may secure review with certainty only if the United States Attorney is cited for contempt, compare Bowman Dairy Co. v. United States, 341 U. S. 214 (1951), in view of the doubtful status of its right to appeal a dismissal. But this misses the mark. Congress clearly contemplated when it placed drastic limits upon the Government’s right of review in criminal cases that it would be completely unable to secure review of some orders having a substantial effect on its ability to secure criminal convictions. This Court cannot and will not grant the Government a right of review which Congress has chosen to withhold. Carroll v. United States, 354 U. S. 394, 407-408 (1957). We may assume for purposes of this decision that there may be no other way for the Government to seek review of individual orders directing it to file bills of particulars. Nor do we understand the Government to argue that a judge has no “power” to enter an erroneous order. Acceptance of this semantic fallacy would undermine the settled limitations upon the power of an appellate court to review interlocutory orders. Neither “jurisdiction” nor “power” can be said to “run the gauntlet of reversible errors.” Bankers Life & Cas. Co. v. Holland, 346 U. S. 379, 382 (1953). Courts faced with petitions for the peremptory writs must be careful lest they suffer themselves to be misled by labels such as “abuse of discretion” and “want of power” into interlocutory review of nonappealable orders on the mere ground that they may be erroneous. “Certainly Congress knew that some interlocutory orders might be erroneous when it chose to make them non-reviewable.” De Beers Consol. Mines, Ltd. v. United States, 325 U. S. 212, 223, 225 (1945) (dissenting opinion of Mr. Justice Douglas). It should be noted that Rule 7 (f) was amended, effective July 1, 1966, to eliminate the requirement that a defendant seeking a bill of particulars make a showing of “cause.” The Government argues that this amendment was not designed “to transform the bill of particulars into an instrument of broad discovery.” Brief for United States, p. 15, n. 5. We intimate no view regarding the construction of the amendment. Petitioner’s order was entered before the amendment was promulgated. The impact of the amendment on the present proceeding will, of course, be a question open upon remand. Brief for United States, p. 24. Brief for United States, p. 11. We note in passing that La Buy and the other decisions of this Court approving the use of mandamus as a means of policing compliance with the procedural rules were civil cases. See Schlagenhauf v. Holder, 379 U. S. 104 (1964); McCullough v. Cosgrave, 309 U. S. 634 (1940); Los Angeles Brush Mfg. Corp. v. James, 272 U. S. 701, 706, 707 (1927) (dictum). We have pointed out that the fact this case involves a criminal prosecution has contextual relevance. See supra, at 96-98. In view of our reading of the record, however, we need not venture an abstract pronouncement on the question whether this fact imposes a more stringent standard for the invocation of mandamus by the Government where the allegation is that a district judge has deviated from the federal rules. Petitioner at one point stated to government counsel: “I told you that any time you made a representation with any foundation in support of it that the disclosure of the name of an individual would either jeopardize him physically or jeopardize the government’s proof in the case and that his testimony might be altered or effort might be made to persuade him not to testify, or something else, I am prepared to say under those circumstances of that showing we don’t risk people’s lives or their security, their physical well-being, and we don’t encourage any possible circumstances in which testimony can be suppressed. That is consistent, it seems to me, with my general philosophy that you shouldn’t be suppressing things; and if there is a threat of suppression then I will take the lesser suppression to prevent the greater.” Earlier, after government counsel suggested that the danger of fabricated defenses justified a policy against the disclosure of the names of potential government witnesses, petitioner replied: “Now any evidence of a fabrication, believe me, we will deal with it. The laws of perjury — we have had convictions for perjury here, and we will have them again, I have no doubt, arising out of criminal cases, but I am not prepared to say to a defendant that you may not have the information which it seems to me you reasonably require to prepare your defense because I am afraid you or somebody helping you will lie and we won’t be able to do anything about it.” Upon further inquiry, the United States Attorney made no suggestion that there was a particular danger that disclosure of the names sought by request number 25 would result in subornation of perjury. Petitioner remarked at one stage: “You know, I have great concern that in a civil case we require both sides to submit their witnesses to maximum deposition when all that is involved is money. In a criminal case, the government doesn’t even want to disclose the name of a person so the other side can go out and interview him when what is concerned is life or liberty. To me this is a very strange aberration of the processes of justice as between civil and criminal cases. When all that is involved is money, we say put your cards on the table. Where life and liberty are involved, we say to the prosecution you don’t have to tell him a thing.” The Government seeks to make much of an exchange in which petitioner remarked that he would “go further” than what the United States Attorney referred to as "the proposed new rules of discovery under the criminal rules by the American Bar Association.” The reference, according to the Government, is to the amendments to the Federal Rules of Criminal Procedure, which were pending in this Court at the time, and the exchange reveals petitioner’s determination to require broad criminal discovery despite the limitations of the rules. We cannot accept this argument. In the first place, the colloquy clearly reveals that petitioner considered the proposed rules irrelevant to the question before him. In the second place, petitioner made it plain that he thought his position could in any event be rested on a reading of the proposed rules: “The Court: ... I would go further than they go, but they certainly go a lot further than you- — a lot further. “Mr. Schultz [United States Attorney]: They would not require the answers to these questions. “The Court: I don’t agree with that. They would not require the giving of a list of witnesses, and I don’t conceive that I am ... .” After his initial ruling that the defendant was entitled to the information sought by request number 25 because he needed it to prepare his defense adequately, petitioner continually asserted a willingness to consider any factors peculiar to the ease which militated against disclosure of this information and to narrow his order in light of any such considerations. See n. 11, supra. Moreover, on several occasions it was petitioner who sought to narrow the focus of the discussion to the particular instance by insisting that the United States Attorney relate his generalized policy objections to the facts of the particular case: “Mr. Schultz: We are not only talking about this very case, your Honor. “The Court: Well, I am talking about this case. That is what I am ruling on. That is what I ruled on last week or earlier this week. That is what you are asking me to reconsider, to vacate.” And again: “Why shouldn’t they have an opportunity to interview the witnesses? Why should they put them on cold at the time, or why should I have to recess then while they go and interview the witnesses to see what their testimony would be? “I don’t understand it, Mr. Schultz. I just don’t understand in this situation — I can understand a lot of situations, but in this situation. We are not talking about some other case, but in this case, this ease in which you say that there were incriminating admissions made.” The Government also places reliance on Schlagenhauf v. Holder, 379 U. S. 104 (1964), arguing that it “reaffirmed” La Buy. Insofar as it did so, the case does not help the Government here, since we have no quarrel with La Buy, which is simply inapposite where there is no showing of a persistent disregard of the federal rules. And it cannot be contended that Schlagenhauf on its facts supports an invocation of mandamus in this case. The Court there did note that the various questions concerning the construction of Rule 35 were new and substantial, but it rested the existence of mandamus jurisdiction squarely on the fact that there was real doubt whether the District Court had any power at all to order a defendant to submit to a physical examination. Petitioner stated that “it is no secret that the government is disturbed that I am making available to defendants the identity of people who are alleged to have been present when transactions took place, which the government contends are illegal. . . . “. . . I have never required them to disclose their evidence, but I have required them to identify the people with whom the defendant is supposed to have participated in an illegal act but who were present.” We note merely that petitioner was careful to distinguish his practice from requiring the Government to produce its evidence or a list of witnesses. _ In any event, petitioner’s passing remarks concerning a running dispute with the Government are insufficient to support an invocation of La Buy, absent some evidence concerning petitioner’s Question: What state is associated with the petitioner? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:

songer_othadmis

E

What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Donald BROWNE d/b/a Bailey Distributors, Respondent. No. 182, Docket 89-4062. United States Court of Appeals, Second Circuit. Argued Sept. 20, 1989. Decided Nov. 28, 1989. Richard S. Boris, New York City (Neal D. Haber, Moss & Boris, New York City, of counsel), for respondent. Judith A. Dowd, Supervisory Atty., NLRB, Washington, D.C. (Joseph E. Desio, Acting General Counsel, Robert E. Allen, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Frederick C. Havard, NLRB, Washington, D.C., of counsel), for petitioner. Before VAN GRAAFEILAND, MESKILL and KEARSE, Circuit Judges. MESKILL, Circuit Judge: This is a petition for enforcement of a supplemental order of the National Labor Relations Board (“NLRB” or “Board”) pursuant to section 10(e) of the National Labor Relations Act (“NLRA” or “Act”), 29 U.S.C. § 160(e), directing Respondent Donald Browne, d/b/a Bailey Distributors (“Bailey” or “Company”), to pay discrimi-natee Timothy Nevins $171,912, plus interest, in back pay and to reinstate certain pension benefits. Notwithstanding the uncontested fact that Nevins’ New York State driver’s license was either suspended or revoked for most of the back pay period in question, the Board based its calculation of his back pay award on a “driver’s” commission rate. In resisting enforcement of the Board’s order, Bailey contends that Nevins’ back pay should not have been calculated at the “driver’s” rate for the period of time that Nevins’ was legally prohibited from serving as a driver of Bailey’s delivery trucks and that Browne’s April 27, 1987 offer of reinstatement tolled the Company’s back pay liability. We deny enforcement of the petition and remand for recalculation of the back pay award. BACKGROUND The genesis of this proceeding is a Supplemental Decision and Order of the NLRB, dated April 14, 1987 and reported at 283 N.L.R.B. 647 (First Supplemental Order), in which Browne, as owner and operator of Bailey Distributors, was found to have discriminatorily denied Nevins employment as a “driver’s helper” on January 5, 1981 in violation of sections 8(a)(1) & (3) of the NLRA, 29 U.S.C. §§ 158(a)(1) & (3). The 1987 order directed Browne to offer Nevins employment “in the position for which he is qualified and in which he would have been employed but for the discrimination against him,” and to fully compensate Nevins for “any loss of earnings or ... benefits suffered as a result of the discrimination against him.” Donald Browne d/b/a Bailey Distributors, 283 N.L.R.B. 647, 648 (1987). On August 5, 1987, we entered a consent judgment enforcing the order. Thereafter, by letter dated April 27, 1987, Browne offered Nevins a position with Bailey as a driver’s helper. In addition, pursuant to the issuance of a Backpay Specification and Notice of Hearing, a hearing to determine Bailey’s back pay liability was held before an Administrative Law Judge (AU) on November 30 and December 1, 1987. Testimony at the hearing established that between 1977 and January 2, 1981, Nevins was employed sporadically by Bailey as a relief driver and a driver’s helper. Nevins also worked briefly as a regular driver on a newly established route that was cancelled in September 1980 for economic reasons. Furthermore, on a number of occasions prior to 1981, Browne had informed Nevins that he would be given the next delivery route to become available and that Nevins should “hang in there” until one of the drivers retired. However, on January 5, 1981, following the termination of one of Bailey’s regular drivers, Nevins was offered continued employment only as a driver’s helper, and only on the condition that he accept forty to fifty dollars a day “off the books” — i.e., in contravention of the wage and benefit provisions of the collective bargaining agreement between the Soft Drink Workers Union and the New York Pepsi-Cola Distributors Association, Inc., of which Bailey is a member. Further testimony revealed that Nevins’ driver’s license had been either suspended or revoked for most of the six and one-half year back pay period in question. Although Nevins testified that on January 5, 1981 he held a valid Class 1 license, which authorized operation of Bailey’s large commercial delivery vehicles, see N.Y.Veh. & Traf.Law § 501 2(a) (McKinney Supp.1989), that license was suspended on June 16, 1982 for failure to pay certain summonses. Before this suspension was lifted, Nevins’ license was again suspended on March 29, 1983. On May 13, 1987, Nevins was issued a Class 5 license, which authorized only the operation of passenger vehicles and small commercial trucks. See id. § 501 2(e) (McKinney 1986). This license was revoked on June 23, 1987 for operating a vehicle without insurance. After surrender of his license on November 30, 1987, Nevins obtained a Class 5 “restricted use license” on December 21, 1987 pursuant to N.Y.Veh. & Traf.Law § 530 (McKinney Supp.1989), which provides, in pertinent part, that “[a] person whose driving license ... has been ... suspended or revoked ... and for whom the holding of a valid license is a necessary incident to his employment ... may be issued a restricted use license.” This license was suspended on November 11, 1988, but reinstated on January 10, 1989. Thus, during the period between June 12, 1982 and January 10, 1989 Nevins drove legally for approximately twelve months — i.e., from May 13, 1987 to June 23, 1987 and from December 21, 1987 to November 9, 1988. On January 29, 1988, the AU ruled, inter alia, that although Nevins was discrim-inatorily denied hire as a “driver’s helper,” he was entitled to back pay calculated at a “driver’s” commission rate from February 15, 1981 forward, since he would have been promoted to a driver’s position by that date. Furthermore, the AU rejected Bailey’s contention that Nevins’ lack of a valid Class 1 driver’s license from June 16, 1982 forward, mandated that his back pay be calculated at the driver’s helper rate. Finally, the AU concluded that Browne’s April 27, 1987 offer of reinstatement did not toll Bailey’s back pay liability, as the offer had been improperly tainted by threatening statements made by Browne to Nevins on May 7, 1987 — four days prior to Nevins’ written acceptance of the offer. On February 14, 1989, the NLRB affirmed the AU’s rulings and issued a Second Supplemental Order awarding Nevins $171,912, plus interest, in back pay and the restoration of certain pension benefits. The Board presently seeks enforcement of its Second Supplemental Order. DISCUSSION In resisting enforcement of the NLRB’s Second Supplemental Order, Bailey contends that (1) the NLRB erroneously concluded that Nevins’ back pay should be calculated at the “driver’s” rate for the period of time that his driver’s license was suspended or revoked; and (2) the NLRB erroneously concluded that Browne’s April 27, 1987 offer of reinstatement, “which was unconditionally accepted by Nevins,” did not toll the Company’s back pay liability. A. Standard of Review Section 10(c) of the NLRA, 29 U.S.C. § 160(c), provides, in pertinent part: If ... the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue ... an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter. 29 U.S.C. § 160(c). In fashioning a particular remedy pursuant to section 10(c) the NLRB is given broad discretion, Detroit Edison Co. v. NLRB, 440 U.S. 301, 316, 99 S.Ct. 1123, 1131, 59 L.Ed.2d 333 (1979), and its remedial choice is subject to limited judicial scrutiny. Shepard v. NLRB, 459 U.S. 344, 349,103 S.Ct. 665, 669, 74 L.Ed.2d 523 (1983); NLRB v. Local 3, Int’l Brotherhood of Elec. Workers, 730 F.2d 870, 879 (2d Cir.1984); Teamsters Local 115 v. NLRB, 640 F.2d 392, 399 (D.C.Cir.), cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 102 (1981). On review, this choice will not be disturbed “ ‘unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.’ ” Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 405, 13 L.Ed.2d 233 (1964) (quoting Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943)); see also Bagel Bakers Council of Greater New York v. NLRB, 555 F.2d 304, 305 (2d Cir.1977) (per curiam) (remedial choice can be reversed “only if ... the method chosen was so irrational as to amount to an abuse of discretion”). Underlying factual findings of the NLRB will be conclusive if they are supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e); see also Local 3, 730 F.2d at 876. B. The Merits 1. Back Pay Calculation The Board based Nevins’ back pay calculation on the earnings of three Bailey employees who had been hired as “driver’s helpers” and subsequently promoted to “drivers.” The ALJ’s finding that “had Nevins been employed as a helper by Browne [on January 5, 1981] ... he would have [eventually] become the driver of the fourth truck route” is adequately supported by substantial evidence. Our review therefore focuses on the Board’s method of calculating Nevins’ back pay after he became entitled to a “driver’s” position. Bailey argues that since a Class 1 license was functionally necessary for Nevins’ employment as a “driver,” back pay should not have been calculated at the “driver’s” commission rate during the period of time that Nevins was “legally prohibited from operating the Company’s trucks.” We agree. While the NLRB's discretion in formulating remedial orders necessarily extends to determining the appropriate method of back pay calculation, see Bagel Bakers Council, 555 F.2d at 305, the Board is required to adopt a formula that will yield a “close approximation ]” of the amount due. NLRB v. Brown & Root, Inc., 311 F.2d 447, 452 (8th Cir.1963). Furthermore, it is well settled that the General Counsel for the NLRB must establish the “gross amount of back pay due,” before the burden shifts to the employer to “establish facts which would negative the existence of liability ... or which would mitigate that liability.” Id. at 454; accord NLRB v. Overseas Motors, Inc., 818 F.2d 517, 521 (6th Cir.1987); Florence Printing Co. v. NLRB, 376 F.2d 216, 223 (4th Cir.), cert. denied, 389 U.S. 840, 88 S.Ct. 68, 19 L.Ed.2d 104 (1967); NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569, 576 (5th Cir.1966). In ruling that the General Counsel had carried this burden and adequately established Bailey’s back pay liability, the ALJ found that “Nevins could have driven [Bailey’s] trucks legally by the act of paying any outstanding fines. Nevins could have been issued a restricted license as a ‘matter of mere routine’ and his failure to pay his fines when he did not need a driver’s license does not operate to bar him from his entitlement to backpay.” The NLRB affirmed these rulings, noting simply that “Nevins was qualified for the job.” After reviewing the record, we are unable to conclude that these findings are supported by substantial evidence. Although the method by which the Board calculated the amount of Nevins’ back pay might have been appropriate if Nevins had legally retained his Class 1 license throughout the six and one-half year period in question, the choice was an irrational one in light of Nevins’ self-imposed legal disability to serve as a driver of Bailey’s delivery trucks from June 16, 1982 forward. Between the June 16, 1982 suspension of his purported Class 1 license and the May 13, 1987 issuance of a Class 5 license, Nev-ins voluntarily forfeited his New York State driving privileges by refusing to pay his outstanding summonses. Only subsequent to the June 23, 1987 revocation of his Class 5 license did Nevins become eligible for a section 530 restricted use license. See N.Y.Comp.Codes R. & Regs. tit. 15, § 135.7(8) (1987). However, contrary to the ALJ’s conclusion that a Class 1 restricted license would have been issued as a “matter of mere routine,” section 530 provides, in pertinent part, that “[t]he issuance of a restricted use license ... shall be in the discretion of the commissioner of motor vehicles.” N.Y.Veh. & Traf.Law § 530(1) (emphasis added). Furthermore, a restricted license “shall be denied to any person ... [who] has had a series of convictions, incidents and/or accidents ..., which in the judgment of the commissioner tends to establish that the person would be an unusual and immediate risk upon the highways." N.Y.Comp.Codes R. & Regs. tit. 15, § 135.7(9). The only record evidence to inferentially support the AU's conclusions regarding Nevins' eligibility for a Class 1 license is the erroneous stipulation that on November 30, 1987, the first day of the back pay hearing, Nevins secured a Class 5 restricted use license by paying his outstanding summonses. In point of fact, Nevins did not obtain a Class 5 restricted use license until December 21, 1987--nearly three weeks after the termination of the back pay hearing. No evidence was proffered by the General Counsel to indicate that had Nevins applied for a Class 1 license, as opposed to a Class 5 license, one would have been routinely issued. Under the circumstances, we are unable to conclude that the Board's underlying factual findings are supported by substantial evidence considered on the record as a whole. During the six and one-half year back pay period in question, Nevins held only Class 5 and Class 5 restricted use licenses, which were valid from May 13, 1987 to June 23, 1987 and from December 21, 1987 forward (excepting a two month suspension from November 11, 1988 to January 10, 1989), respectively. During the remainder of the six and one-half year back pay period Nevins was legally prohibited from operating any motor vehicle. Consequently, we conclude that the method chosen to calculate Nevins' back pay-i.e., basing the award on a "driver's" commission rate-amounted to an abuse of the Board's discretion. A more rational formula, and one that we sanction, would base Nevins' back pay award on a "driver's" rate only for the time that he held a valid Class 1 license and on a "driver's helper" rate for the remainder of the back pay period in question. Finally, we note that the NLRB’s “ ‘power to order affirmative relief under § 10(c) is merely incidental to the primary purpose of Congress to stop and to prevent unfair labor practices. Congress a general scheme authorizing the Board to award full compensatory damages for injuries caused by wrongful conduct.’ ” Shepard, 459 U.S. at 352, 103 S.Ct. at 670 (quoting International Union, United Automobile, Aircraft and Agricultural Implement Workers v. Russell, 356 U.S. 634, 642-43, 78 S.Ct. 932, 937-38, 2 L.Ed.2d 1030 (1958)). Thus, while a back pay award is “necessitated by the employer’s wrongful conduct,” Bagel Bakers Council, 555 F.2d at 305, its purpose is to effectuate national labor policies by making the aggrieved employee whole, and not to reward a discriminatee for being a scofflaw. By disregarding his legal obligations to promptly pay his traffic summonses and to insure his vehicle, Nevins voluntarily forfeited his New York State driving privileges and, consequently, his right to be compensated at the “driver’s” commission rate. 2. Offer of Employment Bailey contends that Browne's Apri] 27, 1987 offer to employ Nevins as a "help. er" tolled the Company's back pay liability. However, based on Nevins' uncontested testimony, the ALl found that the validity of the offer was undermined by a May 7, 1987 telephone conversation in whicI~ Browne told Nevins that: "[YIJou don't want to come back to work here. Some things have surfaced about you.... A lol of accidents happen around here. You don't want to come back to work here.' After reviewing the record, we conclude that the Board's finding of invalidity i~ amply supported by substantial evidence. Furthermore, Bailey's argument that the NLRB is estopped from contesting the va~ lidity of the reinstatement offer because Nevins "unconditionally" accepted it on May 11, 1987-four days after the improper statements were made-is without mer~ it, as the Company never complied with the Board's First Supplemental Order. It is well settled that a remedial offer of reinstatement must be firm, clear and unconditional. Canova v. NLRB, 708 F.2d 1498, 1505 (9th Cir.1983); Oil, Chemical and Atomic Workers Int’l Union v. NLRB, 547 F.2d 598, 601 n. 3 (D.C.Cir.1976), cert. denied, 429 U.S. 1078, 97 S.Ct. 823, 50 L.Ed.2d 798 (1977). The offer must also be made in good faith. NLRB v. Rice Lake Creamery Co., 365 F.2d 888, 894 (D.C.Cir.1966); NLRB v. Interurban Gas Co., 354 F.2d 76, 78 (6th Cir.1965); Lakeland Bus Lines, Inc. v. NLRB, 278 F.2d 888, 892 (3d Cir.1960). Moreover, under recent decisions of the NLRB, the acceptance of an invalid reinstatement offer does not toll the back pay period. See IMCO/Int’l Measurement & Control Co., 277 N.L.R.B. 962, 962 (1985); Sumco Mfg. Co., 267 N.L.R.B. 253, 258 (1983), enforced, 746 F.2d 1189 (6th Cir.1984) (per curiam), cert. denied, 471 U.S. 1100, 105 S.Ct. 2323, 85 L.Ed.2d 842 (1985). Based on the record, we are unable to conclude that Browne’s offer of reinstatement, as was mandated by the Board’s First Supplemental Order, was made in good faith. Whatever validity the April 27 letter to Nevins may initially have had as a remedial offer of employment, the offer was arguably undermined to the point of indirect revocation by Browne’s threatening statements of May 7, 1987, which are undenied on the record. See 1 S. Williston, A Treatise on the Law of Contracts § 55, at 178 (3d ed. 1957) (Any statement that “clearly implies unwillingness to contract according to the terms of the offer” may act as a revocation.). At a minimum, Browne’s statements made it clear that Nevins’ return was unwanted and were undoubtedly designed to deter his acceptance. As such, the threats so tainted the offer that it appears questionable at best, whether Nevins’ reinstatement was ever intended. We therefore reject Bailey's contention that Nevins’ acceptance of the tainted reinstatement offer tolled the Company’s back pay liability. CONCLUSION Because a Class 1 license was functionally necessary for Nevins’ employment as a “driver,” the Board abused its discretion by basing Nevins’ back pay award on a “driver’s” commission rate during the period when he was legally prohibited from operating Bailey's delivery trucks. The petition of the Board for enforcement of its Second Supplemental Order is denied and the cause is remanded for recalculation of Bailey’s back pay liability in accordance with this opinion. . During the six year hiatus between the events that gave rise to Nevins’ claim and the NLRB’s First Supplemental Decision, this case came before us on a petition to review an earlier order of the NLRB dismissing Nevins’ unfair labor practices complaint against Browne. Nevins v. NLRB, 796 F.2d 14 (2d Cir.1986). Concluding that the NLRB’s standard for determining whether to defer to an arbitral decision under Olin Corp., 268 N.L.R.B. 573 (1984), had not been satisfied, we vacated the order and remanded the matter to the NLRB for further proceedings. 796 F.2d at 19-20. On remand the NLRB ruled that Browne had violated sections 8(a)(1) & (3) of the NLRA, 29 U.S.C. §§ 158(a)(1) & (3), by conditioning Bailey’s offer to employ Nevins on his accepting sub-union scale wages and benefits. Donald Browne d/b/a Bailey Distributors, 283 N.L.R.B. 647, 648 (1987). . Although Browne did not testify, he apparently had no knowledge of Nevins’ lack of a valid New York State driver’s license until the first day of the back pay hearing, when Nevins disclosed this information on cross-examination. And while Nevins’ testimony regarding his driving record was sketchy at best, Bailey’s request for an adjournment to explore this "newly revealed” information was denied. Thereafter, albeit without the aid of Nevins' Abstract of Operating Record, the parties stipulated to certain aspects of the suspension and revocation of Nev-ins’ license. Upon receipt of the Abstract from the New York State Department of Motor Vehicles, Bailey then filed a Motion for Reconsideration with the NLRB pursuant to 29 C.F.R. § 102.48(d). The motion was denied by letter, dated June 16, 1989, on the ground that the case was pending before this Court. Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:

songer_usc2

25

What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 25. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. UNITED STATES of America, Appellant, v. Ralph A. CHINBURG, doing business as Fremont Plumbing Shop; Sunset Lumber and Hardware Company, a Wyoming corporation; Ed Von Krosigh; Clarence E. Blomberg; and C. A. McDougall, Sheriff, Fremont County, Appellees. No. 5076. United States Court of Appeals Tenth Circuit. June 29, 1955. Fred W. Smith, Atty., Dept. of Justice, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., John F. Raper, Jr., U. S. Atty., Cheyenne, Wyo., and Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., were with him on the briefs), for the United States. Donald Spiker, Riverton, Wyo., and A. G. McClintock, Cheyenne, Wyo., for appellees. Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges, PHILLIPS, Chief Judge, In September, 1951, Esther Chamber-lin entered into a contract with Ernest Grider for the erection of a dwelling house on an 80-acre tract of land situate in Fremont County, Wyoming. Chin-burg, Von Krosigh, Blomberg, and the Sunset Lumber and Hardware Company, a Wyoming corporation, furnished labor and material in the construction of the house and each of them filed a notice of claim of lien upon the improvements. Esther Chamberlin paid to Grider, $18,-714.00, the full amount due him under the contract. Grider failed to pay amounts due to the lien claimants, aggregating $4,446.01. The lien claimants brought actions in the District Court of Fremont County, Wyoming, against Esther Chamberlin and Jesse Chamberlin to foreclose their claimed mechanics’ liens under the provisions of Ch. 55, Wyo.Comp.Stat.1945. The United States was not a party to such acti0ns. . . , , , , . ,7 A judgment was entered m the state . court awarding the lien claimants a hen , , . upon the dwelling house and ímprove- , . . ,, , , , ments placed upon the land under the , . ... ~ ., mi. • j , , contract with Grider. The judgment ad- . . , , judged that the lien claimants were not . entitled to a lien upon any portion of the Jand The United States brought this action in the United States District Court for the District of Wyoming against the four uen claimants and McDougall, Sheriff of Fremont County, who was appointed in the state court action to sell the house and improvements to satisfy the lien claims, to set aside the state court judgment, and to quiet the title of the United States in and to the land and the improvements thereon against the lien claimants. From a judgment denying the United States any relief and dismissing the Federal court action, the United States has appealed. The land was allotted to Kate S. Breaker under the provisions of the General Allotment Act of February 8, 1887, 24 Stat. 388, 25 U.S.C.A. § 331 et seq. On January 6, 1908, a patent therefor was issued to Breaker. As required by § 5 of the General Allotment Act, 25 U.S.C. A. § 348, the patent reserved the title to the land in the United States, in trust for the Indian, for a period of 25 years. In accordance with the provisions of the General Allotment Act, such trust period has been extended by Executive Orders until 1968. By deed dated June 12, 1950, the heirs of Breaker conveyed the land to Esther Chamberlin, an enrolled Arapahoe allottee. By the terms of the deed the trust status was preserved and the legal title remained in the United States in trust for Chamberlin. The last statement of fact is challenged here for the first time by the lien claimants. However, their contention is foreclosed by the provisions of the deed, by a stipulation entered into by them in the state court action, by the judgment in the state court action, by stipulation entered into by them in the instant action, and by admissions of record in the instant action. The question presented, therefore, is this: Is a dwelling house erected upon land held in trust by the United States for the benefit of its Indian ward, under contract with the Indian, subject to the state law of Wyoming providing for mechanics’ liens, and may such dwelling house be sold to satisfy such liens? We are of the opinion that the question is answered by the decision of the Supreme Court of the United States in United States v. Rickert, 188 U.S. 432, 23 S.Ct. 478, 479, 47 L.Ed. 532. In that case, the question was presented whether permanent improvements, such as houses and other structures upon lands which had been allotted to Indian allottees under the General Allotment Act and to whom trust patents had been issued, were subject to taxation by the State of South Dakota and to a lien for such taxes. The court quoted the Fifth section of the General Allotment Act, which in part read: “ ‘That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare, that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the state or territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or encumbrance whatsoever: * * The court, 188 U.S. at pages 442, 443, 23 S.Ct. at page 482, then stated: “Looking at the object to be accomplished by allotting Indian lands in severalty, it is evident that Congress expected that the lands so allotted would be improved and cultivated by the allottee. But that object would be defeated if the improvements could be assessed and sold for taxes. The improvements to which the question refers were of a permanent kind. While the title to the land remained in the United States, the permanent improvements could no more be sold for local taxes than could the land to which they belonged. Every reason that can be urged to show that the land was not subject to local taxation applies to the assessment and taxation of the permanent improvements. “It is true that the statutes of South Dakota, for the purposes of taxation, classify ‘all improvements made by persons upon lands held by them under the law of the United States’ as personal property. But that classification cannot apply to permanent improvements upon lands allotted to and occupied by Indians, the title to which remains with the United States, the occupants still being wards of the nation, and as such under its complete authority and protection. The fact remains that the improvements here in question are essentially a part of the lands, and their use by the Indians is necessary to effectuate the policy of the United States. “Counsel for the appellee suggests that the only interest of the United States is to be able at the end of twenty-five years from the date of allotment to convey the land, free from any charge or encumbrance; that if a house upon Indian land were seized and sold for taxes, that would not prevent the United States from conveying the land free from any charge or encumbrance; and that, in such case, the Indians could not claim any breach of contract on ■ the part of the United States. These suggestions entirely ignore the relation existing between the United States and the Indians. It is not a relation simply of contract, each party to which is capable of guarding his own interests, but the Indians are in a state of dependency and pupilage, entitled to the care and protection of the government. When they shall be let out of that state is for the United States to determine without interference by the courts or by any state. The government would not adequately discharge its duty to these people if it placed its engagements with them upon the basis merely of contract, and failed to exercise any power it possessed to protect them in the possession of such improvements and personal property as were necessary to the enjoyment of the land held in trust for them. * * * ” The reasoning in the Rickert case is equally applicable here. The results that would flow from the taxation of improvements upon land held in trust by the United States and the sale of such improvements for taxes would likewise flow from the imposition of mechanics' liens upon lands held in trust by the United States and the sale of such improvements to satisfy such liens, and would frustrate the declared policy of the United States with respect to such lands. The judgment is reversed and the cause remanded with instructions to enter judgment for the United States. . Section 55-201, Wyo. Comp. Stat. 1945, in part provides for a mechanic’s lien upon the improvements and upon the land on which, they are situated to the extent of one acre, . The deed recited: “That whereas the lands hereinafter described were allotted to or inherited by the said parties of the first part under the provisions of legislation by Congress pursuant to which said lands are restricted or held in trust by the United States for the benefit of said grantors and are not subject to taxation; nor to alienation or encumbrance without the consent of the Secretary of the Interior, and whereas the said party of the second part being also a restricted Indian desires to acquire said hereindescribed lands subject to the same conditions, restrictions, and limitations as to taxation, alienation, or encumbrance as now rest thereagainst;” and the conveyance was subject to the express condition “that the execution of this deed by the party or parties hereto or its approval by the Secretary of the Interior shall not operate in any manner to remove any of the restrictions now resting against said lands, or to remove any trust or other conditions imposed upon said land as expressed in the original trust or any other patent issued therefor, or any part thereof; it being distinctly understood and agreed that the scope and intent of this deed is simply to transfer and convey such right, title, and interest as the parties of the first part now have in such lands to the said party of the second part subject to the conditions, restrictions and limitations as now rest there-against in the hands of the parties of the first part.” Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 25. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. 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. STEIN v. NEW YORK. NO. 391. Argued December 18, 1952. Decided June 15, 1953. John J. Duff, J. Bertram Wegman and Peter L. F. Sab-batino argued the causes for petitioners. With Mr. Duff on the brief for petitioner in No. 391 was Philip J. O’Brien. With Mr. Wegman on the brief for petitioner in No. 392 were I. Maurice Wormser and Richard J. Burke. With Mr. Sabbatino on the brief for petitioner in No. 393 was Thomas J. Todarelli. John J. O’Brien and John C. Marbach argued the cause for respondent. With them on the brief was Burton C. Meighan. Mr. Justice Jackson delivered the opinion of the Court. Petitioners were found guilty of felony murder by a jury in Westchester County, New York, and sentenced to death. The New York Court of Appeals affirmed without opinion. We granted certiorari, because of questions raised by use of two confessions. The trial lasted over seven weeks and the record runs to more than 3,000 pages. Evidence proffered and heard, subject to rejection or acceptance in the judgment of the jury, included two written confessions by petitioners Cooper and Stein, together with testimony as to their incidental oral confessions and admissions. Each written confession implicated all three defendants and all objected to introduction of each confession on the ground that it was coerced. Wissner further moved as to each that, if Cooper’s and Stein’s confessions were admitted, all reference to him be stricken from them. The trial court heard evidence in the presence of the jury as to the issue of coercion and left determination of the question to the jury. Petitioners claim that such use of these confessions creates a constitutional infirmity which requires this Court to set aside the conviction. I. Facts About the Crime. The main office of Reader’s Digest is thirty-one miles from New York City, in the relatively rural area of northern Westchester County, near the town of Pleasantville. From this secluded headquarters a truck several times each day makes a run to and from town. On April 3, 1950, William Waterbury was driver of the 2:50 p. m. trip into Pleasantville. He picked up Andrew Petrini, a fellow employee, and various bags containing mail, about $5,000 in cash, and about $35,000 in checks, and started down the lonely country roads to town. Neither was armed. After a few hundred yards, Waterbury was cut off and halted by another truck that had been meandering slowly in front of him. He observed a man wearing a false nose and eyeglasses and with a revolver in his hand running toward him. After an unsuccessful attempt to open the door, the assailant fired one shot into Petrini’s head. Waterbury was then ordered into the back of the truck where another man tied him up. His captors took the bag containing the money and checks and abandoned the truck on a side road with Waterbury bound and gagged therein. A few minutes later he was released by a passer-by and had Petrini hurried to the hospital where he died shortly from the effects of a .38 revolver bullet lodged in his skull. Near the scene of the crime police found the abandoned truck used by the killers to block the way of Waterbury. It was learned to be the property of Spring Auto Rental Co., on New York’s lower East Side and at the time of the murder to have been out on hire to a man who had rented the same truck on three prior occasions and who each time had identified himself by producing New York driver’s license No. 1434549, issued to W. W. Comins, of 228 West 47th Street, New York City. The address turned out to be a hotel and the name fictitious. However, the police managed to establish that the license had been procured by one William Cooper. It is more than a figure of speech to say that William Cooper had an ironclad alibi: at the time of this crime he was serving a sentence in a federal penitentiary. Suspicion attached to members of his family. Nearly two months ran on with no solution of the crime, however, until toward the end of May or the beginning of June, when police learned that William’s brother, petitioner Caiman Cooper, had served a sentence in federal prison where he was a “working partner” and chess-playing buddy of one Brassett, who was serving time for having rifled mails addressed to the Reader’s Digest while working in Pleas-antville. It appeared that during their prison association Brassett had told Caiman Cooper of the opportunity awaiting at Reader’s Digest for an enterprising and clever robber. On June 5, 1950, police arranged for Arthur Jeppe-son, who had rented the Spring truck to “W. W. Comins,” to be on a street in New York City where they expected Caiman Cooper to pass. Jeppeson testified on the trial that Cooper recognized him'and said to him that “this truck that he rented from me was in a killing upstate and he had nothing to do with it . . . .” Jeppeson testified that he then asked Cooper two questions: “Why the hell didn’t you report it to the police?” and “. . . why did he give me that license ....”? Cooper’s reply was stated to be, “That is the license they give him to give me.” Jeppeson further testified that Cooper had inquired if the officers had shown him any pictures and asked him not to identify Cooper to the police. At the end of this conversation, on Jeppeson’s signal, two policemen closed in and arrested Cooper. That night (2 a. m., June 6) petitioner Stein was arrested. On June 7, about 9 a. m., petitioner Wissner was arrested. The three petitioners were arraigned and charged with murder on the evening of June 8. A fourth suspect, Dorfman, was sought but remained at large until he voluntarily surrendered on June 19, 1950. All four were indicted for murder. When the time came for trial, the case against Dorfman, who turned state’s evidence, was severed. A motion for separate trial by petitioner Wissner was denied, and trial proceeded against the three remaining defendants. Other than two alibi witnesses offered by Wissner and a halfhearted attempt by Cooper to establish insanity, the defense consisted almost entirely of attempts to break down the prosecution’s case. None of the defendants testified. The confessions constituted only a part of the evidence submitted to the jury. We can learn the context in which the confessions were obtained by the police and received in evidence only from a summary of the whole testimony. Waterbury, who was in the truck with the murdered Petrini, identified Wissner as the man who fired the shot and Stein as the man who tied him up. He testified that on the 8th of June the police brought him to Hawthorne Barracks and that, upon entering a room in which Stein was present, defendant Stein pointed out Waterbury as the driver of the truck. On cross-examination, he recounted that he had picked Wissner out of a lineup at Hawthorne Barracks on June 8 and identified him as the killer. Jeppeson testified that the rental truck had been let to Cooper on April 3 and on three previous occasions, Cooper having in each case used an alias and a false license as before stated, and having given his occupation as “bookseller.” He also testified as to his conversation with Cooper on the morning of the latter’s arrest. Dorfman, in substance, testified that he and Wissner were partners in an auto rental business on the lower East Side of New York City. Cooper and Stein had approached them about six weeks before April 3 with the suggestion that they collaborate on a robbery at the Reader’s Digest. The truck used in the killing had been rented by Cooper on April 3 and on three previous occasions when the conspirators had driven to Pleasantville to “case” the area and determine whether conditions were favorable for success in the crime. At these times, and one other, they also brought to Pleasantville an auto owned by the Dorfman-Wissner agency. On April 3, the four set out for Pleasantville with the truck, the car, and a tan valise containing three guns owned by Wissner. They left the car about a mile from the Reader’s Digest and all got in the rented truck. The guns were distributed, Dorfman getting a black automatic and Wissner a nickel-plated revolver. The holdup proceeded in the manner described by Waterbury. Dorf-man heard a shot during the holdup, but did not see who fired it. On the way back, however, Wissner expressed regret at the necessity of shooting the guard. The defendants threw away their guns, left the Reader’s Digest truck, with Waterbury tied up inside, on a side road and left the rental truck at the place where the car had been parked during the commission of the crime. They drove back toward New York in the car. When they got to the Bronx, they parked the car and went on by subway and taxicab to Dorfman’s apartment in Brooklyn, where they divided up the proceeds and separated. Subsequently, Dorfman and one Homishak went up to the Bronx and picked up the car. Under New York law, Dorfman’s testimony, since he was an accomplice, required corroboration. It was afforded in the following ways: (1) Mrs. Dorfman testified that Cooper, Stein and Wissner had come to her apartment with her husband on the evening of April 3 and that they carried with them the tan valise which Dorf-man had identified as that used in the robbery. It was established by police testimony that this valise had been found in June in Dorfman’s apartment and when searched was found to contain a fragment of paper from an order form used by the Reader’s Digest in April of 1950 — an order form to which subscribers frequently attached cash in such manner that on removal of the cash a portion of the order form would come with it. (2) Police testified that Dorfman’s automatic was found near the area where he said that he had thrown it away on April 3. (3) It was established that Petrini was killed by a bullet from a .38 revolver. (4) Homishak testified that he saw Dorfman in the company of the three petitioners on April 3 and that he accompanied Dorfman to the Bronx to pick up the car that night. (5) An employee of the Reader’s Digest at Pleasantville testified that he had seen the Spring Rental truck on the premises on April 3 and on one prior occasion. (6) Jep-peson’s testimony substantiated Dorfman’s story about rental of the truck. (7) It was established that Cooper had absented himself from his job on April 3. (8) Waterbury’s testimony about the events of April 3 and identification of Stein and Wissner checked with Dorfman’s story. (9) The two confessions, if accepted by the jury, also were corroborative of the accomplice Dorfman in many details. The defendants made no attempt to contradict or explain away any of this damaging testimony. Cooper’s counsel, during a colloquy with the court, admitted that Cooper had rented the truck involved on April 3 and offered no explanation as to how this fact could be consistent with his client’s claim of innocence. An effort was made on summation to convince the jury that Dorf-man, who did not have a prior criminal record, was the killer and had accused these other three, with his wife’s cooperation, in order to save his own life. The tenor of the defense appears from Cooper’s counsel on summation: “I don’t care whether Cooper is innocent or guilty, that is insignificant in the solution of the fundamental problem as to whether the state troopers and other enforcing authorities themselves have violated far more fundamental principles. . . . “. . . Don’t narrow yourselves into a mere solution of a petty murder .... Of course, we want a solution to that, but that is secondary, if the solution of that means that you are going to weaken the very foundations of the republic; then you would be unfit to be jurors.” Wissner’s counsel devoted about half of his summation to arguing that the murder was not “premeditated” — a point without legal significance in felony murder under New York law. II. Facts About the Confessions. Against this background, we come to the controversy over the confessions. Uncontroverted evidence establishes the following: Cooper. — Cooper, who made the first and most crucial confession, was arrested by the state police at 9 o’clock on Monday morning, June 5, under circumstances previously described. His father, who was with him at the time, also was arrested. Both were taken to a police station in New York City, where they were held (but not booked) until early in the afternoon. Thence, they were taken to state police headquarters at Hawthorne, in Westchester County, the county of the offense, arriving at about 2 o’clock. At Hawthorne, the Coopers were separated; the father was detained in the police barracks and the son was taken to an office across the courtyard, known as the Bureau of Identification room, where Cooper’s interrogation and his ultimate confession took place. Although Cooper was continuously under guard and handcuffed, no one questioned him until 8 p. m., at which time three officers interrogated him for four or five hours. During this period, Cooper was confronted with his former prison mate, Brassett. However, he did not confess. Questioning was resumed the following day (Tuesday) at 10 a. m. and continued until 6 p. m., the same three officers participating. Just after 6 p. m. Cooper began to discuss confessing. At this time his father was being held at Hawthorne; his brother Morris had been arrested in New York, where his mere presence violated terms of his parole and rendered him subject to disciplinary action. Cooper first obtained a commitment by the police that his father would be released if he confessed. He then asked to see an official of the Parole Board in order to obtain assurance that, if he confessed, his brother Morris would not be prosecuted for parole violation. Accordingly, about 8 p. m. Reardon, an employee of the Parole Board, came to see Cooper, but the latter was not satisfied with his interview. Reardon’s superior, Parole Commissioner Donovan, was sent for. Donovan arrived at about 10 p. m. and gave Cooper satisfactory assurance that Morris would be unmolested if Cooper “co-operated.” Cooper then confessed orally to Reardon and Donovan. Thus the confession was' first imparted, not to the police who are charged with brutality, but to visiting parole officials not so accused and called in at his own request. Thereupon, a typewritten confession was prepared which Cooper signed after making certain corrections, at about 1:30 or 2 on the morning of the 7th. It is twelve pages long, in great detail; it is corroborated throughout by other evidence, and its general character is such that it could have been fabricated only by a person gifted with extraordinarily creative imagination. Stein. — Stein was arrested at his brother’s home at 2 a. m. on the morning of the 6th, before Cooper confessed. He was taken immediately to Hawthorne Barracks and confined in a room in the basement. The following morning, Captain Glasheen, commandant at the barracks, questioned him for an hour. After lunch questioning was resumed, with another officer joining in the questioning, and continued for two or three hours. That evening, Captain Glasheen returned and interrogated Stein from 7 p. m. until 2 a. m., with no result. At 2 a. m., Stein was informed about Cooper’s confession and left with, the advice to “sleep on it.” The following morning, Stein was ready to confess. By afternoon, a statement had been prepared, corrected and signed. This seven-page statement, like Cooper’s, was so complete and detailed and so dovetailed with the extrinsic evidence that, if it were not true, its author was possessed of amazing powers of divination. The following day, Stein went to Pleasantville with two officers and explained on the ground how the crime had been committed. Wissner. — Wissner was arrested about 9 a. m. on June 7 — subsequent to Cooper’s confession, which implicated him — and taken to Hawthorne, where he remained until his arraignment. He made no confession. There is no direct testimony that petitioners were subjected to physical violence or the threat of it during their detention. None of the defendants took the witness stand to substantiate their claims. With one exception, every police officer who had contact with Cooper or Stein during detention was or could have been questioned about it by the defense. The exception came into contact with Stein only and was not shown to have been with him except in the presence of others who were witnesses. Thus, police testimony was consistent and unshaken that no violence or threats were used, that the accused were given food at mealtimes and, with the exceptions we have stated, were allowed to sleep at night. The defendants’ contentions as to physical violence rest entirely on circumstantial evidence. They would be utterly without support except for inferences, which they urge, from the admitted fact that when first physically examined, the day after arraignment, they showed certain bruises and injuries which could have been sustained from violent “third-degree” methods. On the morning of June 9, they were examined by the prison physician. Cooper had been in custody at the barracks between three and four days, Stein three days and Wissner two days. Testimony by the prison doctor who examined them predicated mainly on the notes he made at that time was that Wissner had a broken rib and various bruises and abrasions on the side, legs, stomach and buttocks; Cooper had bruises on the chest, stomach, right arm, and both buttocks; Stein had a bruise on his right arm. Counsel for the petitioners, who examined them on the 9th and 10th of June, testified that the injuries sustained by each were more extensive than those described in the doctor’s testimony. The record stands that the injuries were of such nature that they might have been received prior to arrest; indeed, one of the petitioners — Wissner, who exhibited perhaps the worst of the injuries but never confessed — was undergoing treatment at the time he was arrested. III. Constitutionality of Procedures Employed Below. In the setting of these facts, the constitutional issues raised by petitioners involve procedural features not heretofore adjudicated by this Court. In view of the uncon-tradicted direct as well as circumstantial evidence against the defendants, the part, if any, played by the confessions in the conviction is uncertain. The jury was instructed to consider the confessions only if it found them to have been voluntary. It rendered a general verdict of guilty. Under these circumstances, we cannot be sure whether the jury found the defendants guilty by accepting and relying, at least in part, upon the confessions or whether it rejected the confessions and found them guilty on the other evidence. Indeed, except as we rely upon a presumption that the jurors followed instructions, we cannot know that some jurors may not have acted upon one basis, while some convicted on the other. Also, since the Court of Appeals affirmed without opinion, we are not certain whether it did so on the ground that the confessions were properly relied on or that even without them the verdict was adequately supported. The New York procedures in this case therefore must be examined, not only as to their own constitutionality, but as to their consequences if valid, and the weight to be given to conclusions so reached. The ideal of fair procedure was self-imposed by New York long before it was imposed upon her. New York’s Constitution has enjoined observance of due process of law at least since 1821, and statute law has provided for exclusion from evidence of coerced confessions since 1881. The Court of Appeals is charged by the State with ultimate authority in such a case as this to adjudge and redress violations of that mandate. Their appeal, taken as matter of right, afforded petitioners a review with a latitude much wider than is permitted to us. That court, in a death case, is empowered by statute to order a new trial for errors of law, or if the conviction is found to be “against the weight of evidence,” or if the court is satisfied for any reason whatever “that justice requires a new trial.” Even where it finds that the jury could “reasonably credit the denial of the police,” if it considers that the prosecution had failed to produce all reasonably available evidence to clear charges of coercion, it will order “a new trial where there can be a more adequate search for the truth.” People v. Mummiani, 258 N. Y. 394, 401, 403, 180 N. E. 94, 97, 98. Although, even within this range, the Court of Appeals found no cause for upsetting this conviction, our review penetrates its judgment and searches the record in the trial court. The procedure adopted by New York for excluding coerced confessions relies heavily on the jury. It requires a preliminary hearing as to admissibility, but does not permit the judge to make a final determination that a confession is admissible. He may — indeed, must — exclude any confession if he is convinced that it was not freely made or that a verdict that it was so made would be against the weight of evidence. But, while he may thus cast the die against the prosecution, he cannot do so against the accused. If the voluntariness issue presents a fair question of fact, he must receive the confession and leave to the jury, under proper instructions, the ultimate determination of its voluntary character and also its truthfulness. People v. Weiner, 248 N. Y. 118, 161 N. E. 441. The judge is not required to exclude the jury while he hears evidence as to voluntariness, People v. Brasch, 193 N. Y. 46, 85 N. E. 809, and perhaps is not permitted to do so, People v. Randazzio, 194 N. Y. 147, 159, 87 N. E. 112, 117. The trial court held a preliminary hearing as to admissibility of these confessions before the jury. No defendant objected or requested a hearing with the jury absent. The court advised counsel for each defendant that he might cross-examine all witnesses called by the State and offer any on his own behalf, and both privileges were exercised. The judge ruled that a question of fact resulted, which he submitted under instructions which authorized the jury to find the confessions coerced not only because of “force and intimidation and fear” but also for any “implied coercion because of the manner in which they [the confessors] were kept in custody,” and on both grounds the burden to prove beyond reasonable doubt was placed upon the State. New York procedure does not leave the outcome finally to the caprice of a lay jury, unfamiliar with the techniques of trial practice. The trial judge, too, has a heavy responsibility resulting from broad powers to set aside a verdict if he thinks the evidence does not warrant it. Petitioners submitted such a motion, which the judge denied, thus adding the weight of his own approval to the jury verdict. An attack on the fairness of New York procedure is that petitioners could not take the witness stand to support, with their own oaths, the charges their counsel made against the state police without becoming subject to general cross-examination. State law on the subject is disputed and uncertain. It is clear that the Court of Appeals would not have held it error had such witnesses been subjected to general cross-examination. Respondents, however, contend, and petitioners deny, that it is the practice of trial courts to limit cross-examination under these circumstances, and each cites records of prosecutions to confirm its position. It is not impossible that cross-examination could be employed so as to work a denial of due process. But no basis is laid for such a contention here. Appellate courts leave an exceptional discretion to trial courts to prevent abuse and injustice. But here the defendants took no step which would call for or permit an exercise of such discretion. They made no request for a ruling by the trial court and made no offer or suggestion of readiness to testify, however restricted the cross-examination might be. We do not know whether, or how far, the court would have permitted any line of cross-examination, nor what specific limitation defendants would have claimed. We will not adjudge a trial court guilty of constructive abuse by imputing to it a ruling that never was made on a proposition that never was put to it. Petitioners’ attack is so unbounded and unqualified that it could prevail only if the Fourteenth Amendment were construed to allow them to testify to their coercion by the police, shielded from any cross-examination whatever. If they had given such testimony, it would have been in direct conflict with that of the police, and the decision would depend on which was believable. Certainly the Constitution does not prohibit tests of credibility which American law uniformly applies to witnesses. If in open court, free from violence or threat of it, defendants had been obliged to admit incriminating facts, it might bear on the credibility of their claim that the same facts were admitted to the police only in response to beating. And if they became witnesses, does the Constitution compel the State to forego attack on their credibility by showing former convictions? We now know that each had an impressive felony record, one including murder and another perjury. Doubtless, to have testified would have resulted in disclosing this to the jury, while silence would keep it from being brought to light until after the verdict. We think, on any realistic view of this case, they stayed off the stand not because the State would subject them to any improper cross-examination but because their records made them vulnerable to any proper one. The State did not seek to draw any inference adverse to defendants from their choice of silence, cf. Adamson v. California, 332 U. S. 46, beyond the obvious fact that their confessions have not been repudiated, their charge of police violence is left without testimonial support, and the police account of the confessions is undenied. In trial of a coercion issue, as of every other issue, when the prosecution has made a case to go to the jury, an accused must choose between the disadvantage from silence and that from testifying. The Constitution safeguards the right of a defendant to remain silent; it does not assure him that he may remain silent and still enjoy the advantages that might have resulted from testifying. We cannot say that petitioners have been denied a fair hearing of the coercion charge. Petitioners suffer a disadvantage inseparable from the issues they raise in that this procedure does not produce any definite, open and separate decision of the confession issue. Being cloaked by the general verdict, petitioners do not know what result they really are attacking here. For all we know, the confession issue may have been decided in their favor. The jury may have agreed that the confessions were coerced, or at least that the State had not met the burden of proving beyond a reasonable doubt that they were voluntary. If the method of submission is, as we believe, constitutional, it leaves us to review hypothetical alternatives. This method of trying the coercion issue to a jury is not informative as to its disposition. Sometimes the record permits a guess or inference, but where other evidence of guilt is strong a reviewing court cannot learn, whether the final result was to receive or to reject the confessions as evidence of guilt. Perhaps a more serious, practical cause of dissatisfaction is the absence of any assurance that the confessions did not serve as makeweights in a compromise verdict, some jurors accepting the confessions to overcome lingering doubt of guilt, others rejecting them but finding their doubts satisfied by other evidence, and yet others or perhaps all never reaching a separate and definite conclusion as to the confessions but returning an unanalytical and impressionistic verdict based on all they had heard. Courts uniformly disapprove compromise verdicts but are without other means than admonitions to ascertain or control the practice. Defendants, when two or more issues are submitted, are entitled to instructions appropriate to discountenance, discourage and forbid such practice. However, no question is raised in this respect as to the charge in this case. In civil cases, certainty and exposure of the process is sometimes sought by the special verdict or by submission of interrogatories. E. g., Fed. Rules Civ. Proc., 49. But no general practice of these techniques has developed in American criminal procedure. Our own Rules of Criminal Procedure make no provision for anything but a general verdict. Indeed, departure from this has sometimes been resisted as an impairment of the right to trial by jury, see People v. Tessmer, 171 Mich. 522, 137 N. W. 214; State v. Boggs, 87 W. Va. 738, 106 S. E. 47, which usually implies one simple general verdict that convicts or frees the accused. Nor have the courts favored any public or private post-trial inquisition of jurors as to how they reasoned, lest it operate to intimidate, beset and harass them. This Court will not accept their own disclosure of forbidden quotient verdicts in damage cases. McDonald v. Pless, 238 U. S. 264. Nor of compromise in a criminal case whereby some jurors exchanged their convictions on one issue in return for concession by other jurors on another issue. Hyde v. United States, 225 U. S. 347. “If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation — to the destruction of all frankness and freedom of discussion and conference.” McDonald v. Pless, supra, at 267-268. But this inability of a reviewing court to see what the jury has really done is inherent in jury trial of any two or more issues, and departure from instruction is a risk inseparable from jury secrecy and independence. The uncertainty, while the cause of concern and dissatisfaction in the literature of the profession, does not render the customary jury practice unconstitutional. The Fourteenth Amendment does not forbid jury trial of the issue. The states are free to allocate functions as between judge and jury as they see fit. Cf. Walker v. Sauvinet, 92 U. S. 90; Minneapolis & St. L. R. Co. v. Bombolis, 241 U. S. 211. Many states emulate the New York practice, while others hold that presence of the jury during preliminary hearing is not error. Despite the difficult problems raised by such jury trial, we will not strike down as unconstitutional procedures so long established and widely approved by state judiciaries, regardless of our personal opinion as to their wisdom. We have, therefore, to consider the constitutional effect of both alternatives left to the jury by the court’s instruction, assuming it to have followed one or the other. They involve very different considerations and are best discussed separately. IV. Was it Unconstitutional if These Confessions Were Used as the Basis of Conviction? Since these convictions may rest in whole or in part upon the confessions, we must consider whether they are a constitutionally permissible foundation for a finding of guilt. Inquiries on which this Court must be satisfied are: (1) Under what circumstances were the confessions obtained? (2) Has the use of the confessions been repugnant to “that fundamental fairness essential to the very concept of justice”? Lisenba v. California, 314 U. S. 219, 236. The first is identical with that litigated before the trial court and jury. The second is within, if not identical with, those questions considered by the state appellate court. As to both questions, we have the identical evidence that was before both state courts. At the threshold of our inquiry, therefore, lies the question: What, if any, weight do we give to the verdict of the jury, the rulings of the trial judge and the determination of the state appellate court? Petitioners’ argument here essentially is that the conclusions of the New York judges and jurors are mistaken and that by reweighing the same evidence we, as a super-jury, should find that the confessions were coerced. This misapprehends our function and scope of review, a misconception which may be shared by some state courts with the result that they feel a diminished sense of responsibility for protecting defendants in confession cases. Of course, this Court cannot allow itself to be completely bound by state court determination of any issue essential to decision of a claim of federal right, else federal law could be frustrated by distorted fact finding. But that does not mean that we give no weight to the decision below, or approach the record de novo or with the latitude of choice open to some state appellate courts, such as the New York Court of Appeals. Mr. Justice Brandéis, for this Court, long ago warned that the Fourteenth Amendment does not, in guaranteeing due process, assure immunity from judicial error. Milwaukee Electric Railway & Light Co. v. Milwaukee, 252 U. S. 100, 106. It is only miscarriages of such gravity and magnitude that they cannot be expected to happen in an enlightened system of justice, or be tolerated by it if they do, that cause us to intervene to review, in the name of the Federal Constitution, the weight of conflicting evidence to support a decision by a state' court. It is common courtroom knowledge that extortion of confessions by “third-degree” methods is charged falsely as well as denied falsely. The practical problem is to separate the true from the false. Primary, and in most cases final, responsibility for determining contested facts rests, and must rest, upon state trial and appellate courts. A jury and the trial judge — knowing local conditions, close to the scene of events, hearing and observing the witnesses and parties — have the same undeniable advantages over any appellate tribunal in determining the charge of coercion of a confession as in determining the main charge of guilt of the crime. When the issue has been fairly tried and reviewed, and there is no indication that constitutional standards of judgment have been disregarded, we will accord to the state’s own decision great and, in the absence of impeachment by conceded facts, decisive respect. Gallegos v. Nebraska, 342 U. S. 55, 60; Lyons v. Oklahoma, 322 U. S. 596, 602-603; Lisenba v. California, 314 U. S. 219. Accordingly, we accept this verdict and judgment as a permissible resolution of contradictions in evidence or conflicting inferences unless, as is urged, undisputed facts indicate use of incorrect constitutional standards of judgment. This may best be determined by separate examination of the following conclusions, implicit in the judgments below: (1) that these confessions were not extorted by physical coercion; (2) that these confessions were not extorted by methods which, though short of physical coercion, were so oppressive as to render the confessions inadmissible; and (3) that admitted illegal detention of petitioners at the time of the confessions did not render them inadmissible. 1. Physical violence. — Physical violence or threat of it by the custodian of a prisoner during detention serves no lawful purpose, invalidates confessions that otherwise would be convincing, and is universally condemned by the law. When present, there is no need to weigh or measure its effects on the will of the individual victim. The tendency of the innocent, as well as the guilty, to risk remote results of a false confession rather than suffer immediate pain is so strong that judges long ago found it necessary to guard against miscarriages of justice by treating any confession made concurrently with torture or threat of brutality as too untrustworthy to be received as evidence of guilt. Admitted injuries and bruises on defendants' bodies after arraignment were mute but unanswerable witnesses that their persons recently had been subjected to violence from some source. Slight evidence, even interested testimony, that it occurred during the period of detention or at the hands of the police, or failure by the prosecution to meet the charge with all reasonably available evidence, might well have tipped the scales of decision below. Even here, it would have force if there were any evidence whatever to connect the admitted injuries with the events or period of interrogation. But there is no such word in the record. On the contrary, we have positive testimony of the police, not materially inconsistent or inherently improbable, unshaken on cross-examination. The only expert testimony on the subject is undisputed and is that the injuries may have been sustained before arrest. This becomes more than a possibility when we consider that neither defendants nor anyone else tells us what defendants were up to in the period just prior to arrest. We are not convinced from their criminal records and way of life as now known to us, though not to the jury, Question: What is the manner in which the Court took jurisdiction? A. cert B. appeal C. bail D. certification E. docketing fee F. rehearing or restored to calendar for reargument G. injunction H. mandamus I. original J. prohibition K. stay L. writ of error M. writ of habeas corpus N. unspecified, other Answer:

songer_applfrom

L

What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO-CLC, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, White Farm Equipment Company, Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WHITE FARM EQUIPMENT COMPANY, a Subsidiary of White Motor Corporation, Respondent, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Intervenor. WHITE FARM EQUIPMENT COMPANY, a Subsidiary of White Motor Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Intervenor. 79-1654, 79-1864 and 79-2562. United States Court of Appeals, District of Columbia Circuit. Argued May 28, 1980. Decided Nov. 28, 1980. Markey, Chief Judge, United States Court of Customs and Patent Appeals, sitting by designation, filed a dissenting opinion. Winn Newman, Washington, D. C., with whom Richard B. Sobol and Michael B. Trister, Washington, D. C., were on brief, for International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC as petitioner in No. 79-1654 and intervenor in Nos. 79-1864 and 79-2562. Collis Suzanne Stocking, Atty., N. L. R. B., Washington, D. C., with whom Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., was on brief, for N. L. R. B. as respondent in Nos. 79-1654 and 79-2562 and petitioner in No. 79-1864. Peter D. Post, Pittsburgh, Pa., with whom Laurence Gold, Washington, D. C., Walter P. DeForest, and Mary Helen Chiodo, Pittsburgh, Pa., were on brief, for White Farm Equipment Company as intervenor in No. 79-1654, respondent in No. 79-1864, and petitioner in No. 79-2562. Edith E. Holiday entered an appearance for White Farm Equipment Company. Lutz Alexander Prager and Mark S. Flynn, Attys., Equal Employment Opportunity Commission, Washington, D. C., were on brief, for amicus curiae E. E. O. C., urging affirmance. Marilyn S. G. Urwitz, Atty., E. E. O. C., Washington, D. C., entered an appearance for amicus curiae E. E. O. C. John A. Fillion, M. Jay Whitman, and Leonard R. Page, Detroit, Mich., were on brief, for amici curiae International Union, United Automobile, Aerospace & Agricultural Implement Workers of America and National Education Association, urging affirmance in part and reversal in part. Michael J. Bartlett and Charles I. Cohen, Washington, D. C., were on brief, for amicus curiae Chamber of Commerce of the United States of America, urging affirmance. Before WRIGHT, Chief Judge, MIKVA, Circuit Judge, and MARKEY, Chief Judge, United States Court of Customs and Patent Appeals. Sitting by designation pursuant to 28 U.S.C. § 293(a)(1976). ORDER PER CURIAM. These causes came on to be heard on petitions for review and cross-application for enforcement of an order of the National Labor Relations Board and were argued by counsel. While the issues presented occasion no need for an opinion, they have been accorded full consideration by the court. See Local Rule 13(c). The order of the National Labor Relations Board is supported by substantial evidence in the record- taken as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Moreover, this court finds that the Board’s order is otherwise free from reversible legal error. On consideration of the foregoing, generally for the reasons stated in the Board’s order, it is ORDERED and ADJUDGED by this court that the petitions for review are hereby denied and the cross-application for enforcement is hereby granted. MARKEY, Chief Judge, dissents from the foregoing order for the reasons stated in the following dissenting opinion. 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_dueproc

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of the requirements of due process by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WATSON-RUMMELL ELECTRIC COMPANY, Respondent. No. 86-5247. United States Court of Appeals, Sixth Circuit. Argued Feb. 12, 1987. Decided April 1, 1987. Elliott Moore, Deputy Associate General Counsel, N.L.R.B., John Burgoyne, Margaret Bezou (argued), Washington, D.C., Emil C. Farkas, Director, Region 9, N.L.R.B., Cincinnati, Ohio, for petitioner. Julius Rather, Danny, Morgan and Rather, Lexington, Ky., Richard L. Wyatt (argued), John Gamble, Atlanta, Ga., for respondent. Before MERRITT and MILBURN, Circuit Judges, and PECK, Senior Circuit Judge. MERRITT, Circuit Judge. The National Labor Relations Board applies for enforcement of its order against Watson-Rummell Electric Company. Under the terms of that order, Watson-Rum-mell is required to give retroactive effect to an expired collective bargaining agreement and to cease and desist from any future violations of the terms of that agreement or of the National Labor Relations Act. Watson-Rummmell contests enforcement primarily on the ground that it was entitled to repudiate the contract unilaterally because of its special status as a construction industry employer under § 8(f) of the NLRA, 29 U.S.C. § 158(f). We now enforce the Board’s order as to all relief for the period preceding June 1, 1982, and remand to the Board for the limited purpose of determining the applicability of § 8(f) and the effect of such an exemption on the relief ordered. Watson-Rummell Electric Company employs approximately eight workers to perform electrical contracting services for the construction industry in Lexington, Kentucky. By virtue of a letter of assent dated October 22, 1975, Watson-Rummell became a member of a multi-employer bargaining group that represents electrical contractors in the Lexington area: the Central Kentucky Chapter of the National Electrical Contractors Association, Inc. (NECA). By becoming a member of the NECA group, Watson-Rummell also became a party to the collective bargaining agreement then in effect between NECA and the International Brotherhood of Electrical Workers Local No. 183. The letter of assent specified that in order to withdraw from the NECA, an employer had to give notice to both the NECA and the union at least 150 days before the anniversary date of the collective bargaining agreement then in effect. Three distinct time periods are relevant to the task of assessing Watson-Rummell’s duties towards its employees and their union. The first begins with the signing of the original letter of assent in October, 1975, and continues until the employer effected a timely withdrawal from the bargaining unit on May 31, 1982. The second period begins at the date of this withdrawal and ends with the expiration of the collective bargaining agreement on May 31, 1983. The last period runs from June 1, 1983 to present, thus covering the employer’s post-expiration duties. These periods are described below as the pre-withdrawal, post-withdrawal, and post-expiration periods respectively. The Board found that the employer did not effect a timely withdrawal from the NECA until June 1,1982, and that Watson-Rummell was bound by the terms of the collective bargaining agreement until it expired on June 1, 1983. In holding Watson-Rummell to the terms of that contract during the post-withdrawal period, the Board necessarily found that withdrawal from the multi-employer bargaining unit did not affect the employer’s duties toward its employees while the collective bargaining agreement was in effect. In addition, the Board found that the employer was prohibited under § 9(a) of the NLRA from making unilateral changes in contract terms during the post-expiration period. As a result, the Board’s order mandated relief extending through all three periods. Watson-Rummell takes issue with each of these findings by the Board. Specifically, the employer argues that the Board erred by not properly considering evidence that it withdrew from the NECA prior to June 1, 1982. Watson-Rummell also argues that withdrawal from the NECA extinguished its obligations under the collective bargaining agreement as of the date of withdrawal, without regard for the expiration date of the collective bargaining agreement. The first of these arguments questions relief ordered by the Board for the period from June 1, 1981 to June 1, 1982. The second attacks the remedies instituted by the Board for the post-withdrawal and post-expiration periods. As for Watson-Rummell’s first argument, there is substantial evidence in the record to support the Board’s finding that withdrawal did not occur before June 1, 1982. The terms of the contract specified a method for terminating participation in the multi-employer bargaining group. That method was not complied with until the letter of December 27, 1981 was received by both the NECA and the union. Furthermore, the employer’s conduct during the period in question was not sufficient to communicate an intent to withdraw from the NECA or repudiate the collective bargaining agreement. Under these circumstances, the Board correctly found that the employer was a member of the NECA group and thereby bound by the collective bargaining agreement until June 1, 1982. The contractual obligations of the company in the post-withdrawal and post-expiration periods are not so clear. Watson-Rum-mell has consistently and vigorously contested any contractual duties whatsoever in these periods. Although counsel below did not specifically allege Watson-Rummell’s § 8(f) status as an excuse, the employer now explicitly relies upon this special exemption. The Board counters by arguing that counsel’s failure to allege this status specifically below bars its consideration in this court by virtue of § 10(e) of the NLRA, 29 U.S.C. § 160(e). See Woelke & Romero Framing v. NLRB, 456 U.S. 645, 102 S.Ct. 2071, 72 L.Ed.2d 398 (1981). We reject the Board’s contention that Watson-Rummell has waived any claim to § 8(f) status because of a failure to invoke its protection specifically below. The specificity required for a claim to escape the ban imposed by § 10(e) is that which will “apprise the Board of an intention to bring up the question.” May Stores v. NLRB, 326 U.S. 376, 386-87 n. 5, 66 S.Ct. 203, 209 n. 5, 90 L.Ed. 145 (1945). A general objection combined with special circumstances may be sufficient to constitute notice. Id. In this case, the Board should have considered the applicability of § 8(f) to Watson-Rummell. The AU found that Watson-Rummell was “an electrical contractor in the construction industry.” Joint Appendix at 135. Watson-Rummell consistently asserted that it was under no duty whatsoever to honor the contract beyond May 31, 1981. Furthermore, the testimony offered before the Board regarding Watson-Rummell’s operations suggests strongly that it is a § 8(f) employer, and this testimony should have prompted the Board to inquire further into the applicability of the special exemption. Although we hold that WatsonRummell provided sufficient notice regarding its § 8(f) claim to prevent a waiver, the record before us is insufficient to decide whether the employer is in fact entitled to the exemption and how its contractual duties would be altered. Under Jim McNeff, Inc. v. Todd, 461 U.S. 260, 103 S.Ct. 1753, 75 L.Ed.2d 830 (1983), the employer’s obligations under a collective bargaining agreement are arguably subject to unilateral repudiation at any time before the union demonstrates majority support. Id. at 271-72, 103 S.Ct. at 1759. Although this holding appears to discharge the employer from any liability during the post-withdrawal and post-expiration periods, we do not know if the union established majority support at any time prior to WatsonRummell’s repudiation. Accordingly, we must remand to the Board to consider the applicability of § 8(f) in the present case, and the effect this exemption would have on relief ordered past May 31, 1982. The portion of the Board’s order mandating relief for the period prior to June 1, 1982 is hereby enforced. That portion of the order extending beyond June 1, 1982 is not enforced and the case is remanded to the Board for additional proceedings as outlined in the opinion above. . Since Watson-Rummell admitted that it was bound by the collective bargaining agreement and its employees were represented by the union until June 1, 1981, the employer’s duties during this period are not in dispute. See Joint Appendix at 66, 94. Question: Did the interpretation of the requirements of due process by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

sc_casesource

025

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. HOWARD JOHNSON CO., INC. v. DETROIT LOCAL JOINT EXECUTIVE BOARD, HOTEL & RESTAURANT EMPLOYEES & BARTENDERS INTERNATIONAL UNION, AFL-CIO No. 73-631. Argued March 19-20, 1974 Decided June 3, 1974 Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 265. James D. Tracy argued the cause and filed briefs for petitioner. Laurence Gold argued the cause for respondent. With him on the briefs were Jerry F. Venn, Donald Sugerman, and George Kaujmann. Gerard C. Smetana, Jerry Kronenberg, and Milton Smith filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal. Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance. Mr. Justice Marshall delivered the opinion of the Court. Once again we are faced with the problem of defining the labor law obligations of a “successor” employer to the employees of its predecessors. In this case, petitioner Howard Johnson Co. is the bona fide purchaser of the assets of a restaurant and motor lodge. Respondent Union was the bargaining representative of the employees of the previous operators, and had successfully concluded collective-bargaining agreements with them. In commencing its operation of the restaurant, Howard Johnson hired only a small fraction of the predecessors' employees. The question presented in this case is whether the Union may compel Howard Johnson to arbitrate, under the arbitration provisions of the collective-bargaining agreements signed by its predecessors, the extent of its obligations under those agreements to the predecessors’ employees. Prior to the sale at issue here, the Grissoms — Charles T. Grissom, P. L. Grissom, Ben Bibb, P. L. Grissom & Son, Inc., and the Belleville Restaurant Co., a corporation wholly owned by P. L. Grissom & Son — had operated a Howard Johnson’s Motor Lodge and an adjacent Howard Johnson’s Restaurant in Belleville, Michigan, under franchise agreements with the petitioner. Employees at both the restaurant and motor lodge were represented by the respondent Hotel & Restaurant Employees & Bartenders International Union. The Grissoms had entered into separate collective-bargaining agreements with the Union covering employees at the two establishments. Both agreements contained dispute settlement procedures leading ultimately to arbitration. Both agreements also provided that they would be binding upon the employer’s “successors, assigns, purchasers, lessees or transferees.” On June 16, 1972, the Grissoms entered into an agreement with Howard Johnson to sell it all of the personal property used in connection with operation of the restaurant and motor lodge. The Grissoms retained ownership of the real property, leasing both premises to Howard Johnson. Howard Johnson did not agree to assume any of the Grissoms’ obligations, except for four specific contracts relating to operation of the restaurant and motor lodge. On June 28, Howard Johnson mailed the Gris-soms a letter, which they later acknowledged and confirmed, clarifying that “[i]t was understood and agreed that the Purchaser . . . would not recognize and assume any labor agreements between the Sellers . . . and any labor organizations,” and that it was further agreed that “the Purchaser does not assume any obligations or liabilities of the Sellers resulting from any labor agreements . . . Transfer of operation of the restaurant and motor lodge was set for midnight, July 23, 1972. On July 9, the Grissoms notified all of their employees that their employment would terminate as of that time. The Union was also notified of the termination of the Gris-soms’ business. On July 11, Howard Johnson advised the Union that it would not recognize the Union or assume any obligations under the existing collective-bargaining agreements. After reaching agreement with the Grissoms, Howard Johnson began hiring its own work force. It placed advertisements in local newspapers, and posted notices in various places, including the restaurant and motor lodge. It began interviewing prospective employees on July 10, hired its first employees on July 18, and began training them at a Howard Johnson facility in Ann Arbor on July 20. Prior to the sale, the Grissoms had 53 employees. Howard Johnson commenced operations with 45 employees, 33 engaged in the restaurant and 12 in the motor lodge. Of these, only nine of the restaurant employees and none of the motor lodge employees had previously been employed by the Grissoms. None of the supervisory personnel employed by the Grissoms were hired by Howard Johnson. The Union filed this action in the state courts on July 21. Characterizing Howard Johnson’s failure to hire all of the employees of the Grissoms as a “lockout” in violation of the collective-bargaining agreements, the Union sought a temporary restraining order enjoining this “lockout” and an Order compelling Howard Johnson and the Grissoms to arbitrate the extent of their obligations to the Grissom employees under the bargaining agreements. The state court granted an ex parte temporary restraining order, but the Company refused to honor it, claiming that it had not received adequate notice or service, and the order was dissolved after a hearing on July 24. The defendants subsequently removed this action to the federal courts on the ground that it was brought under § 301 of the Labor Management Relations Act, 29 U. S. C. § 185. At a hearing before the District Court on August 7, the Grissoms admitted that they were required to arbitrate in accordance with the terms of the collective-bargaining agreements they had signed and that an order compelling arbitration should issue. On August 22, the District Court, in a memorandum opinion unofficially reported at 81 L. R. R. M. 2329 (ED Mich. 1972), held that Howard Johnson was also required to arbitrate the extent of its obligations to the former Gris-som employees. The court denied, however, the Union’s motion for a preliminary injunction requiring the Company to hire all the former Grissom employees, and granted a stay of its arbitration, order pending appeal. Howard Johnson appealed the order compelling arbitration, but the Court of Appeals affirmed. 482 F. 2d 489 (CA6 1973). We granted certiorari, 414 U. S. 1091 (1973), to consider the important labor law question presented. We reverse. Both courts below relied heavily on this Court’s decision in John Wiley & Sons v. Livingston, 376 U. S. 543 (1964). In Wiley, the union representing the employees of a corporation which had disappeared through a merger sought to compel the surviving corporation, which had hired all of the merged corporation’s employees and continued to operate the enterprise in a substantially identical form after the merger, to arbitrate under the merged corporation’s collective-bargaining agreement. As Wiley was this Court’s first experience with the difficult “successorship” question, its holding was properly cautious and narrow: “We hold that the disappearance by merger of a corporate employer which has entered into a collective bargaining agreement with a union does not automatically terminate all rights of the employees covered by the agreement, and that, in appropriate circumstances, present here, the successor employer may be required to arbitrate with the union under the agreement.” Id., at 548. Mr. Justice Harlan, writing for the Court, emphasized “the central role of arbitration in effectuating national labor policy” and preventing industrial strife, and the need to afford some protection to the interests of the employees during a change of corporate ownership. Id., at 549. The courts below recognized that the reasoning of Wiley was to some extent inconsistent with our more recent decision in NLRB v. Burns International Security Services, 406 U. S. 272 (1972). Burns was the successful bidder on a contract to provide security services at a Lockheed Aircraft plant, and took a majority of its employees from the ranks of the guards employed at the plant by the previous contractor, Wackenhut. In refusing to enforce the Board’s order finding that Burns’ failure to honor the substantive provisions of the collective-bargaining agreement negotiated with Wackenhut was an unfair labor practice, we emphasized that freedom of collective bargaining — “ 'private bargaining under governmental supervision of the procedure alone, without any official compulsion over the actual terms of the contract’ ” — was a “ 'fundamental premise’ ” of the federal labor laws, id., at 287, quoting H. K. Porter Co. v. NLRB, 397 U. S. 99, 108 (1970), and that it was therefore improper to hold Burns to the substantive terms of a collective-bargaining agreement which it had neither expressly nor impliedly assumed. Burns also stressed that holding a new employer bound by the substantive terms of the preexisting collective-bargaining agreement might inhibit the free transfer of capital, and that new employers must be free to make substantial changes in the operation of the enterprise. 406 U. S., at 287-288. The courts below held that Wiley rather than Burns was controlling here on the ground that Burns involved an NLRB order holding the employer bound by the substantive terms of the collective-bargaining agreement, whereas this case, like Wiley, involved a § 301 suit to compel arbitration. Although this distinction was in fact suggested by the Court’s opinion in Burns, see id., at 285-286, we do not believe that the fundamental policies outlined in Burns can be so lightly disregarded. In Textile Workers v. Lincoln Mills, 353 U. S. 448 (1957), this Court held that § 301 of the Labor Management Relations Act authorized the federal courts to develop a federal common law regarding enforcement of collective-bargaining agreements. But Lincoln Mills did not envision any freewheeling inquiry into what the federal courts might find to be the most desirable rule, irrespective of congressional pronouncements. Rather, Lincoln Mills makes clear that this federal common law must be “fashion [ed] from the policy of our national labor laws.” Id., at 456. Mr. Justice Douglas described the process of analysis to be employed: “The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy.” Id., at 457. It would be plainly inconsistent with this view to say that the basic policies found controlling in an unfair labor practice context may be disregarded by the courts in a suit under § 301, and thus to permit the rights enjoyed by the new employer in a successorship context to depend upon the forum in which the union presses its claims. Clearly the reasoning of Burns must be taken into account here. We find it unnecessary, however, to decide in the circumstances of this case whether there is any irreconcilable conflict between Wiley and Burns. We believe that even on its own terms, Wiley does not support the decision of the courts below. The Court in Burns recognized that its decision “turn[ed] to a great extent on the precise facts involved here.” 406 U. S., at 274. The same observation could have been made in Wiley, as indeed it could be made in this case. In our development of the federal common law under § 301, we must necessarily proceed cautiously, in the traditional case-by-case approach of the common law. Particularly in light of the difficulty of the successorship question, the myriad factual circumstances and legal contexts in which it can arise, and the absence of congressional guidance as to its resolution, emphasis on the facts of each case as it arises is especially appropriate. The Court was obviously well aware of this in Wiley, as its guarded, almost tentative statement of its holding amply demonstrates. When the focus is placed on the facts of these cases, it becomes apparent that the decision below is an unwarranted extension of Wiley beyond any factual context it may have contemplated. Although it is true that both Wiley and this case involve § 301 suits to compel arbitration, the similarity ends there. Wiley involved a merger, as a result of which the initial employing entity completely disappeared. In contrast, this case involves only a sale of some assets, and the initial employers remain in existence as viable corporate entities, with substantial revenues from the lease of the. motor lodge and restaurant to Howard Johnson. Although we have recognized that ordinarily there is no basis for distinguishing among mergers, consolidations, or purchases of assets in the analysis of successorship problems, see Golden State Bottling Co. v. NLRB, 414 U. S. 168, 182-183, n. 5 (1973), we think these distinctions are relevant here for two reasons. First, the merger in Wiley was conducted “against a background of state law that embodied the general rule that in merger situations the surviving corporation is liable for the obligations of the disappearing corporation,” Burns, 406 U. S., at 286, which suggests that holding Wiley bound to arbitrate under its predecessor’s collective-bargaining agreement may have been fairly within the reasonable expectations of the parties. Second, the disappearance of the original employing entity in the Wiley merger meant that unless the union were afforded some remedy against Wiley, it would have no means to enforce the obligations voluntarily undertaken by the merged corporation, to the extent that those obligations vested prior to the merger or to the extent that its promises were intended to survive a change of ownership. Here, in contrast, because the Grissom corporations continue as viable entities with substantial retained assets, the Union does have a realistic remedy to enforce their contractual obligations. Indeed, the Gris-soms have agreed to arbitrate the extent of their liability to the Union and their former employees; presumably this arbitration will explore the question whether the Gris-soms breached the successorship provisions of their collective-bargaining agreements, and what the remedy for this breach might be. Even more important, in Wiley the surviving corporation hired all of the employees of the disappearing corporation. Although, under Burns, the surviving corporation may have been entitled to make substantial changes in its operation of the enterprise, the plain fact is that.it did not. As the arbitrator in Wiley subsequently stated: “Although the Wiley merger was effective on October 2, 1961, the former Interscience employees continued to perform the same work on the same products under the same management at the same work place as before the change in the corporate employer.” Interscience Encyclopedia, Inc., 55 Lab. Arb. 210, 218 (1970). The claims which the union sought to compel Wiley to arbitrate were thus the claims of Wiley’s employees as to the benefits they were entitled to receive in connection with their employment. It was on this basis that the Court in Wiley found that there was the “substantial continuity of identity in the business enterprise,” 376 U. S., at 551, which it held necessary before the successor employer could be compelled to arbitrate. Here, however, Howard Johnson decided to select and hire its own independent work force to commence its operation of the restaurant and motor lodge. It therefore hired only nine of the 53 former Grissom employees and none of the Grissom supervisors. The primary purpose of the Union in seeking arbitration here with Howard Johnson is not to protect the rights of Howard Johnson’s employees; rather, the Union primarily seeks arbitration on behalf of the former Grissom employees who were not hired by Howard Johnson. It is the Union’s position that Howard Johnson was bound by the pre-existing collective-bargaining agreement to employ all of these former Grissom employees, except those who could be dismissed in accordance with the “just cause” provision or laid off in accordance with the seniority provision. It is manifest from the Union’s efforts to obtain injunctive relief requiring the Company to hire all of these employees that this is the heart of the controversy here. Indeed, at oral argument, the Union conceded that it would be making the same argument here if Howard Johnson had not hired any of the former Grissom employees, and that what was most important to the Union was the prospect that the arbitrator might order the Company to hire all of these employees. What the Union seeks here is completely at odds with the basic principles this Court elaborated in Burns. We found there that nothing in the federal labor laws “requires that an employer . . . who purchases the assets of a business be obligated to hire all of the employees of the predecessor though it is possible that such an obligation might be assumed by the employer.” 406 U. S., at 280 n. 5. See also Golden State Bottling Co. v. NLRB, 414 U. S., at 184 n. 6. Burns emphasized that “[a] potential employer may be willing to take over a moribund business only if he can make changes in corporate structure, composition of the labor force, . . . and nature of supervision.” 406 U. S., at 287-288. We rejected the Board's position in part because “[i]t would seemingly follow that employees of the predecessor would be deemed employees of the successor, dischargeable only in accordance with provisions of the contract and subject to the grievance and arbitration provisions thereof. Burns would not have been free to replace Wackenhut's guards with its own except as the contract permitted.” Id., at 288. Clearly, Burns establishes that Howard Johnson had the right not to hire any of the former Grissom employees, if it so desired. The Union’s effort to circumvent this holding by asserting its claims in a § 301 suit to compel arbitration rather than in an unfair labor practice context cannot be permitted. We do not believe that Wiley requires a successor employer to arbitrate in the circumstances of this case. The Court there held that arbitration could not be compelled unless there was “substantial continuity of identity in the business enterprise” before and after a change of ownership, for otherwise the duty to arbitrate would be “something imposed from without, not reasonably to be found in the particular bargaining agreement and the acts of the parties involved.” 376 U. S., at 551. This continuity of identity in the business enterprise necessarily includes, we think, a substantial continuity in the identity of the work force across the change in ownership. The Wiley Court seemingly recognized this, as it found the requisite continuity present there in reliance on the “wholesale transfer” of Interscience employees to Wiley. Ibid. This view is reflected in the emphasis most of the lower courts have placed on whether the successor employer hires a majority of the predecessor’s employees in determining the legal obligations of the successor in § 301 suits under Wiley. This interpretation of Wiley is consistent also with the Court’s concern with affording protection to those employees who are in fact retained in “[t]he transition from one corporate organization to another” from sudden changes in the terms and conditions of their employment, and with its belief that industrial strife would be avoided if these employees’ claims were resolved by arbitration rather than by “ 'the relative strength ... of the contending forces.’ ” Id., at 549, quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 580 (1960). At the same time, it recognizes that the employees of the terminating employer have no legal right to continued employment with the new employer, and avoids the difficulties inherent in the Union’s position in this case. This holding is compelled, in our view, if the protection afforded employee interests in a change of ownership by Wiley is to be reconciled with the new employer’s right to operate the enterprise with his own independent labor force. Since there was plainly no substantial continuity of identity in the work force hired by Howard Johnson with that of the Grissoms, and no express or implied assumption of the agreement to arbitrate, the courts below erred ■ in compelling the Company to arbitrate the extent of its obligations to the former Grissom employees. Accordingly, the judgment of the Court of Appeals must be Reversed. Actually, employees at the restaurant were officially represented by the Hotel & Restaurant Employees & Bartenders International Union, while employees at the motor lodge were represented by Local 705 of the Hotel, Motel & Restaurant Employees Union. As the Court of Appeals observed, however, “[wjhile the unions named in the two agreements bear distinct names they are apparently identical in interest and governance.” 482 F. 2d 489, 491 n. 3. Both have been represented throughout this litigation by the respondent Detroit Local Joint Executive Board. See The Supreme Court, 1971 Term, 86 Harv. L. Rev. 1, 255-256 (1972); Christensen, Successorships, Unit Changes, and the Bargaining Table, in Southwestern Leg. Found., 19th Institute on Labor Law, Labor Law Developments 1973, pp. 197,205-206. The Union apparently did not explore another remedy which might have been available to it prior to the sale, i. e., moving to enjoin the sale to Howard Johnson on the ground that this was a breach by the Grissoms of the successorship clauses in the collective-bargaining agreements. See National Maritime Union v. Commerce Tankers Corp., 325 F. Supp. 360 (SDNY 1971), vacated, 457 F. 2d 1127 (CA2 1972). The mere existence of the successorship clauses in the bargaining agreements between the Union and the Grissoms, however, cannot bind Howard Johnson either to the substantive terms of the agreements or to the arbitration clauses thereof, absent the continuity required by Wiley, when it is perfectly clear the Company refused to assume any obligations under the agreements. Subsequently, the .Interscience plant was closed and the former Interscience employees were integrated into Wiley’s work force. The arbitrator, relying in part on the NLRB’s decision in Burns, held that the provisions of the Interscience collective-bargaining agreement remained in effect for as long as Wiley continued to operate the former Interscienee enterprise as a unit in substantially the same manner as prior to the merger, but that the integration of the former Interscienee employees into Wiley’s operations destroyed this continuity of identity and terminated the effectiveness of the bargaining agreement. 55 Lab. Arb., at 218- 220. It is important to emphasize that this is not a case where the successor corporation is the “alter ego” of the predecessor, where it is “merely a disguised continuance of the old employer.” Southport Petroleum Co. v. NLRB, 315 U. S. 100, 106 (1942). 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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_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. NICHOLS & CO. et al. v. SECRETARY OF AGRICULTURE. No. 3747. Circuit Court of Appeals, First Circuit. July 9, 1943. For former opinion, see 131 F.2d 651. Edward C. Park, of Boston, Mass. (Withington, Cross, Park & McCann, of Boston, Mass., of counsel), for petitioners. Robert L. Pierce, Sp. Asst, to Atty. Gen., Thurman Arnold, Asst. Atty. Gen., Kenneth L. Kimble, Sp. Asst, to Atty. Gen., and Robert H. Shields, Sol., Department of Agriculture, and Charles W. Buey, Atty., Department of Agriculture, both of Washington, D. C. (James C. Wilson, Sp. Asst, to Atty. Gen., of counsel), for respondent. Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges. MAHONEY, Circuit Judge. This court handed down an opinion in Nichols & Company et al. v. Secretary of Agriculture on November 19, 1942 (1 Cir., 131 F.2d 651). On the basis of the testimony presented to a master and a master’s report, the Secretary of Agriculture concluded that Nichols & Company and Nichols & Company, Inc., were guilty of violating certain provisions of the Commodity Exchange Act, 49 Stat. 1491, 7 U.S.C.A. § 1 et seq. He ordered that the registration of Nichols & Company as a futures commission merchant be suspended for a period of ninety days. Pie determined that Nichols & Company, Inc. refused access to records required to be kept open in violation of Section 4i; that through the partnership, its agent, it took the other side of customers’ trades in violation of Section 4b (D), and that the partnership offset orders of some customers against the orders of other. customers in violation of Section 4b (D). We determined in our opinion that, the Secretary could not attribute the wrongs of the corporation to the partnership and, therefore, insofar as the order sought to punish the partnership for corporate wrongs it was invalid. We affirmed the Secretary in his conclusion that the partnership was guilty of off-setting, set aside the Secretary’s order and remanded the case for further proceedings not inconsistent with our opinion. Nichols & Company filed a petition for rehearing on the question of whether it was guilty of violating the off-setting provisions of the Act. We invited the government to reply and a memorandum was filed by it. Thereafter we granted the petition for rehearing limiting it to the single question of whether the partnership was guilty of off-setting. Briefs were submitted and oral arguments were heard during the May session. When this case was first decided the present issue did not loom large in the arguments of the parties. Since that time, however, we have had the benefit of ample discussion on the question. The evidence on this point indicates that Nichols & Company would ordinarily execute customers’ orders in the following manner: Wells, who was the floor broker for the partnership, would have two orders in hand; an order to buy and an order to sell the same future at the same price. In most cases one side, the purchase or sale, was given to another exchange member for execution and Wells executed the other side. It frequently resulted that Wells made the trade with the member who had been given the opposite side. The Secretary found, however, that “every such trade was made by outcry in the ring and the two brokers who had partnership orders to purchase and sell did not always make the trade with each other”. In the opinion we characterized the participants in these trades as “friendly brokers”. Nichols & Company has taken the position all along that the statute was aimed at bucketing and that transactions which took place on the floor of the Exchange were not prohibited under the Act. We disagreed with this contention and stated that off-setting has a broader signification than bucketing. We are still of this view. That is to say, we believe that off-setting may take place not only in the office of the broker but also on the Exchange floor. A further contention is made, however, that the Secretary found that every trade was made by public outcry and that therefore he did not find that Nichols & Company had engaged in any collusive practice in order to stifle competition. When the opinion was first written I was of the view that there was something objectionable in the practice of two brokers executing opposite sides of customers’ trades, knowing the origin of the trades. Without casting any aspersions upon the honesty of Nichols & Company, I took the position that inherent in such a practice was the possibility of stifling competition; that it was fraught with danger to the best interest of the customers and that since the statute was remedial we should interpret it in a manner consistent with the best interest of the public. This despite the fact that the Secretary did not make any finding that Nichols & Company through its brokers did a dishonest act. Upon fuller consideration on rehearing, my brethren think that in arriving at a definition of the offense of offsetting our starting point should be, namely, that the matching of opposite buying and selling orders by a futures commission merchant in his office is off-setting within the meaning of the statute, as well as quite possibly being a form of “bucketing”; that in the absence of any statutory definition or illuminating legislative history as to the meaning of off-setting, we should look to the nature of the transaction admittedly comprehended by the term. The effect of matching orders in the office is that they are not offered openly and competitively on the market, which was the customer’s rightful expectation, and the customer does not obtain an exchange contract as a result of such matching. But the result of the practice carried on by Nichols & Company was that buying and selling orders met on the exchange, as two orders must necessarily meet to consummate any trade. Since the Secretary of Agriculture made a finding that all the trades were executed by public outcry and in the ring, it cannot be said that the orders were matched with the object or result of avoiding open and competitive bidding. The customers received exchange contracts. My brethren are of the view that the Secretary has shifted from his original position. They say that in his decision finding the partnership guilty of off-setting the Secretary seemed to be of the view that Nichols & Company was guilty of off-setting merely because it was the futures commission merchant employed in the execution of the orders on both sides of the trade; that the “off-set” was the meeting of the particular two orders in the resulting trade. After reciting the facts he stated: “Both brokers were acting for the partnership, which leaves it in the position of handling both sides of a trade. Although it has put the trade through the ring, it has filled orders of two customers by causing them to offset each other.” At the rehearing, however, the Secretary argued that the futures commission merchant may properly appear on both sides of the trade provided there is an open and competitive offering; but that as a matter of law there can be no open and competitive offering where it is known by the two brokers, or perhaps by one of them, that the two orders had been placed in their respective hands by the same futures commission merchant. The government did not satisfactorily explain how the state of mind of the brokers — which the Secretary in his opinion did not seem to regard as a decisive factor — could affect the quality of the transaction as off-setting. In the opinion of my brethren the government’s view on rehearing results in an over-refined definition of off-setting hardly justified by the vague statutory language “to fill such order by offset against the order or orders of any other person”. They are of the opinion that the fact that there is a possibility that brokers may engage in a collusive practice when they both know the origin of the trade, is not a basis for characterizing as “off-setting” all transactions where two friendly brokers are used. While I still feel that there lurks in the practice above described the possibility that customers will not be fully protected, I am satisfied to go along with my brethren in their conviction that neither the statutory language nor the legislative history supports our original interpretation of the term off-setting. Therefore, an order will be entered setting aside the Secretary’s order dated December 29, 1941. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:

songer_r_fed

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. CONNELLY v. COMMISSIONER OF INTERNAL REVENUE. No. 7603. Circuit Court of Appeals, Third Circuit. June 23, 1941. J. S. Seidman, of New York City, for petitioner. Hubert L. Will, of Washington, D. C. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Michael H. Cardozo, IV, Sp. Assts. to the Atty. Gen., on the brief), for respondent. Before MARIS, CLARK, and JONES, Circuit Judges. JONES, Circuit Judge. The petitioner deducted in his income tax return for 1934 a loss on account of certain bank stock which he alleges became worthless during the taxable year. The Commissioner disallowed the deduction and assessed a deficiency tax accordingly. The Commissioner’s notice of the assessment assigned, as the basis for his action, that the bank stock could not “be considered worthless as long as the assets held by the trustee are in process of liquidation and no identifiable event has occurred to show that the trust certificates received by the stockholders * * * are worthless” and that, as a consequence, any loss sustained by the stockholders upon final settlement by the liquidators “is not an allowable deduction in the year 1934”. In short, the Commissioner disallowed the deduction for the year 1934 on the ground that the stock continued to have potential value throughout that year. After hearing before the Board of Tax Appeals on the taxpayer’s petition for a redetermination of the assessment, the Commissioner in a brief filed with the Board contended that the disallowance of the deduction for 1934 was correct because the loss had actually occurred in the year 1933, as shown by the evidence adduced at the hearing. The Board so found and sustained the assessment. The taxpayer alleges (1) that the Board erred in concluding that the identifiable event which determined the worthlessness of the stock occurred in 1933 rather than in 1934 and (2) that, in any event, the Board could not properly sustain the assessment for a reason other than that assigned by the Commissioner when the assessment was made. The Board’s express finding that the stock “became worthless during 1933” is conclusive as to that fact if there is substantial evidence to support it. See Foster v. Commissioner, 1 Cir., 112 F.2d 109, 113; Lauriston Investment Co. v. Commissioner, 9 Cir., 89 F.2d 327, 328; Avery v. Commissioner, 5 Cir., 22 F.2d 6, 7, 55 A.L.R. 1277. The only question of law before us in respect of the finding is whether the evidence in support of it is substantial. Rhodes v. Commissioner, 6 Cir., 100 F.2d 966, 969. It is indisputable that, on the basis of a fair appraisal of the bank’s assets, it was insolvent from April, 1933, onward. Being a state bank (Pennsylvania), it had been permitted under a local statute (Sordoni Act) to reopen following the bank holiday on a restricted basis for periods of ninety days. The bank was not authorized, however, by the Pennsylvania statute to do business in the usual and ordinary course. Its activities were limited to a liquidation of its assets and to the receipt of new deposits, subject to their being segregated from the funds of the bank and secured one hundred per cent, by cash or United States Government bonds. By December 15, 1933, it had become clear to the bank’s board of directors, one of whom was the petitioner, that all hope of reopening the bank as a going concern had vanished and that liquidation, with no prospect of return to the stockholders, was inescapable.' Accordingly, on that day the board of directors, including the petitioner (who was well acquainted with the bank’s affairs and its situation), adopted a plan of liquidation which was to become effective upon acceptance thereof by the holders of seventy-five per cent, of the bank’s outstanding stock. The plan was sent out to the stockholders on December 22, 1933. By December 31 the holders of fifty per cent, of the bank’s stock had approved the plan, and by January 9, 1934, the requisite seventy-five per cent, had approved. Under the plan of liquidation, remotely junior certificates of interest in the bank’s assets were given to the stockholders. But, the Board found, and the evidence supports the finding, that it was known to the directors (including the petitioner) on December 15, when they adopted the plan, as well as later when the certificates were issued, that no salvage would materialize for the stockholders by reason of their ownership of the bank’s stock. The Board of Tax Appeals concluded that the action taken on December 15, 1933, to wind up the bank with complete loss to the stockholders was the identifiable event which gave open expression to the then evident fact that the bank stock was worthless. This permissible inference, as well as the direct facts, was for the Board. Palmer v. Commissioner, 302 U.S. 63, 70, 58 S.Ct. 67, 82 L.Ed. 50. Nor does the petitioner cite any rule of law from which it can be said that the Board’s conclusion was error. It is true, as the petitioner argues, that it is the actuality rather than the imminence of loss which is the determinant (citing Burdan v. Commissioner, 3 Cir., 106 F.2d 207). But the loss in the instant case, after having been imminent from April 1933, became a recognized actuality on December 15, 1933, when it was so determined by formal action of the bank’s board of directors. Thenceforth, the interests of the stockholders were neither to be enhanced nor diminished by whatever they did in respect of the plan of liquidation. The formal adoption of the plan by the stockholders took away from them nothing that was not already gone. The petitioner urges that a taxpayer’s determination, in the first instance, of the date of his loss should be accepted by the Commissioner “unless it appears from the facts that the taxpayer was clearly unreasonable and unfair at the time he was compelled to make his decision” (citing Rhodes v. Commissioner, 6 Cir., 100 F.2d 966, 969). But, the integrity of that very rule should have prompted the petitioner to claim the loss for the year 1933. And, the case of Olds & Whipple v. Commissioner, 2 Cir., 75 F.2d 272, from which the petitioner quotes, in reality supports the Board’s decision. There the loss was held deductible for the year in which those in charge of the company’s affairs no longer believed that they could work out the company’s financial difficulties and the company’s assets were then less than its liabilities. Such was the precise situation in 1933 with respect to the bank in the present' case. Furthermore, in the Whipple case, the loss was held to be deductible for the year in which the interested parties decided to liquidate the company although the actual dissolution was not consummated until the following year when the board of directors voted on and approved the proposal to dissolve. In the instant case, the Board’s finding that the bank stock became worthless in 1933 is supported by substantial evidence. Cf. Thompson v. Commissioner, 2 Cir., 115 F.2d 661. There is no merit in the taxpayer’s further contention that the Board of Tax Appeals may not sustain the disallowance of a deduction upon a basis of fact different from that asserted by the Commissioner in disallowing the deduction and assessing a deficiency tax. The contention entirely disregards the real issue which the taxpayer’s petition placed before the Board and the attendant burden upon the taxpayer to establish a deductible loss Reinecke v. Spalding, 280 U.S. 227, 232, 233, 50 S.Ct. 96, 74 L.Ed. 385; Burnet v. Houston, 283 U.S. 223, 227, 51 S.Ct. 413, 75 L.Ed. 991; Brown v. Helvering, 291 U.S. 193, 199, 54 S.Ct. 356, 78 L.Ed. 725. Specifically, the burden of proving that a loss on stock occurred in a particular year is upon the taxpayer. Foster v. Commissioner, 1 Cir., 112 F.2d 109, 113; Morton v. Commissioner, 7 Cir., 112 F.2d 320, 322; Eagleton v. Commissioner, 8 Cir., 97 F.2d 62, 64. Here, the taxpayer asserted a loss by reason of the determined worthlessness of his bank stock for the year 1934, and the inquiry before the Board was whether or not the loss had occurred in that year. The thing of fundamental importance is not what the Commissioner had originally asserted or later proved or contended, but what did the taxpayer do to meet his burden. It was for him to prove that the loss for which he claimed a deduction had occurred in 1934. This he failed to do. And, whether the loss occurred after 1934, as the Commissioner had originally asserted, or in 1933, as he later contended before the Board and as the Board properly found from the evidence before it, is immaterial to the question of' the validity of the assessment. Certain it is that the loss did not occur in 1934. The Board therefore rightly sustained the deficiency assessment. Crowell v. Commissioner, 6 Cir., 62 F.2d 51, 53. The decision of the Board of Tax Appeals is affirmed. The applicable statutory provision is Sec. 23 (e) (2) of the Revenue Act of 1934, c. 277, 48 Stat. 680, 26 Ü.S.C.A. Int.Rev.Acts pages 671, 672, and the pertinent Treasury Regulation is Art. 23 (e)-l, Treasury Regulation 86, promulgated under the Revenue Act of 1934. Pennsylvania Act of March 8, 1933, P.L. 9, expired September 8, 1937, 7 P.S. §§ 284r-288 note. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:

sc_authoritydecision

B

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. NORTH CAROLINA DEPARTMENT OF REVENUE, Petitioner v. THE KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST No. 18-457 Supreme Court of the United States. Argued April 16, 2019 Decided June 21, 2019 Solicitor General Matthew W. Sawchak for the petitioner. David A. O'Neil, Washington, DC, for the respondent. Robert F. Orr, Robert F. Orr, PLLC, Raleigh, NC, Andrew H. Erteschik, Saad Gul, John M. Durnovich, Nathaniel C. Zinkow, Poyner Spruill LLP, Raleigh, NC, Joshua H. Stein, Attorney General, Matthew W. Sawchak, Solicitor General, James W. Doggett, Deputy Solicitor General, Ryan Y. Park, Deputy Solicitor General, North Carolina, Department of Justice, Raleigh, NC, for petitioner. Thomas Dean Myrick, Moore & Van Allen PLLC, Charlotte, NC, David A. O'Neil, Anna A. Moody, Laura E. O'Neill, Debevoise & Plimpton LLP, Washington, DC, for respondent. Justice SOTOMAYOR delivered the opinion of the Court. This case is about the limits of a State's power to tax a trust. North Carolina imposes a tax on any trust income that "is for the benefit of" a North Carolina resident. N. C. Gen. Stat. Ann. § 105-160.2 (2017). The North Carolina courts interpret this law to mean that a trust owes income tax to North Carolina whenever the trust's beneficiaries live in the State, even if-as is the case here-those beneficiaries received no income from the trust in the relevant tax year, had no right to demand income from the trust in that year, and could not count on ever receiving income from the trust. The North Carolina courts held the tax to be unconstitutional when assessed in such a case because the State lacks the minimum connection with the object of its tax that the Constitution requires. We agree and affirm. As applied in these circumstances, the State's tax violates the Due Process Clause of the Fourteenth Amendment. I A In its simplest form, a trust is created when one person (a "settlor" or "grantor") transfers property to a third party (a "trustee") to administer for the benefit of another (a "beneficiary"). A. Hess, G. Bogert, & G. Bogert, Law of Trusts and Trustees § 1, pp. 8-10 (3d ed. 2007). As traditionally understood, the arrangement that results is not a "distinct legal entity, but a 'fiduciary relationship' between multiple people." Americold Realty Trust v. Conagra Foods , Inc ., 577 U. S. ----, ----, 136 S.Ct. 1012, 1016, 194 L.Ed.2d 71 (2016). The trust comprises the separate interests of the beneficiary, who has an "equitable interest" in the trust property, and the trustee, who has a "legal interest" in that property. Greenough v. Tax Assessors of Newport , 331 U.S. 486, 494, 67 S.Ct. 1400, 91 L.Ed. 1621 (1947). In some contexts, however, trusts can be treated as if the trust itself has "a separate existence" from its constituent parts. Id ., at 493, 67 S.Ct. 1400. The trust that challenges North Carolina's tax had its first incarnation nearly 30 years ago, when New Yorker Joseph Lee Rice III formed a trust for the benefit of his children. Rice decided that the trust would be governed by the law of his home State, New York, and he appointed a fellow New York resident as the trustee. The trust agreement provided that the trustee would have "absolute discretion" to distribute the trust's assets to the beneficiaries "in such amounts and proportions" as the trustee might "from time to time" decide. Art. I, § 1.2(a), App. 46-47. When Rice created the trust, no trust beneficiary lived in North Carolina. That changed in 1997, when Rice's daughter, Kimberley Rice Kaestner, moved to the State. She and her minor children were residents of North Carolina from 2005 through 2008, the time period relevant for this case. A few years after Kaestner moved to North Carolina, the trustee divided Rice's initial trust into three subtrusts. One of these subtrusts-the Kimberley Rice Kaestner 1992 Family Trust (Kaestner Trust or Trust)-was formed for the benefit of Kaestner and her three children. The same agreement that controlled the original trust also governed the Kaestner Trust. Critically, this meant that the trustee had exclusive control over the allocation and timing of trust distributions. North Carolina explained in the state-court proceedings that the State's only connection to the Trust in the relevant tax years was the in-state residence of the Trust's beneficiaries. App. to Pet. for Cert. 54a. From 2005 through 2008, the trustee chose not to distribute any of the income that the Trust accumulated to Kaestner or her children, and the trustee's contacts with Kaestner were "infrequent." 371 N.C. 133, 143, 814 S.E.2d 43, 50 (2018). The Trust was subject to New York law, Art. X, App. 69, the grantor was a New York resident, App. 44, and no trustee lived in North Carolina, 371 N.C., at 134, 814 S.E.2d at 45. The trustee kept the Trust documents and records in New York, and the Trust asset custodians were located in Massachusetts. Ibid. The Trust also maintained no physical presence in North Carolina, made no direct investments in the State, and held no real property there. App. to Pet. for Cert. 52a-53a. The Trust agreement provided that the Kaestner Trust would terminate when Kaestner turned 40, after the time period relevant here. After consulting with Kaestner and in accordance with her wishes, however, the trustee rolled over the assets into a new trust instead of distributing them to her. This transfer took place after the relevant tax years. See N. Y. Est., Powers & Trusts Law Ann. § 10-6.6(b) (West 2002) (authorizing this action). B North Carolina taxes any trust income that "is for the benefit of" a North Carolina resident. N. C. Gen. Stat. Ann. § 105-160.2. The North Carolina Supreme Court interprets the statute to authorize North Carolina to tax a trust on the sole basis that the trust beneficiaries reside in the State. 371 N.C., at 143-144, 814 S.E.2d at 51. Applying this statute, the North Carolina Department of Revenue assessed a tax on the full proceeds that the Kaestner Trust accumulated for tax years 2005 through 2008 and required the trustee to pay it. See N. C. Gen. Stat. Ann. § 105-160.2. The resulting tax bill amounted to more than $ 1.3 million. The trustee paid the tax under protest and then sued in state court, arguing that the tax as applied to the Kaestner Trust violates the Due Process Clause of the Fourteenth Amendment. The trial court decided that the Kaestners' residence in North Carolina was too tenuous a link between the State and the Trust to support the tax and held that the State's taxation of the Trust violated the Due Process Clause. App. to Pet. for Cert. 62a. The North Carolina Court of Appeals affirmed, as did the North Carolina Supreme Court. A majority of the State Supreme Court reasoned that the Kaestner Trust and its beneficiaries "have legally separate, taxable existences" and thus that the contacts between the Kaestner family and their home State cannot establish a connection between the Trust "itself" and the State. 371 N.C., at 140-142, 814 S.E.2d at 49. We granted certiorari to decide whether the Due Process Clause prohibits States from taxing trusts based only on the in-state residency of trust beneficiaries. 586 U. S. ----, 139 S.Ct. 915, 202 L.Ed.2d 641 (2019). II The Due Process Clause provides that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law." Amdt. 14, § 1. The Clause "centrally concerns the fundamental fairness of governmental activity." Quill Corp. v. North Dakota , 504 U.S. 298, 312, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992), overruled on other grounds, South Dakota v. Wayfair , Inc. , 585 U. S. ----, ----, 138 S.Ct. 2080, 2092-2093, 201 L.Ed.2d 403 (2018). In the context of state taxation, the Due Process Clause limits States to imposing only taxes that "bea[r] fiscal relation to protection, opportunities and benefits given by the state." Wisconsin v. J. C. Penney Co. , 311 U.S. 435, 444, 61 S.Ct. 246, 85 L.Ed. 267 (1940). The power to tax is, of course, "essential to the very existence of government," McCulloch v. Maryland , 4 Wheat. 316, 428, 4 L.Ed. 579 (1819), but the legitimacy of that power requires drawing a line between taxation and mere unjustified "confiscation." Miller Brothers Co. v. Maryland , 347 U.S. 340, 342, 74 S.Ct. 535, 98 L.Ed. 744 (1954). That boundary turns on "[t]he simple but controlling question ... whether the state has given anything for which it can ask return." Wisconsin , 311 U.S. at 444, 61 S.Ct. 246. The Court applies a two-step analysis to decide if a state tax abides by the Due Process Clause. First, and most relevant here, there must be " 'some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.' " Quill , 504 U.S. at 306, 112 S.Ct. 1904. Second, "the 'income attributed to the State for tax purposes must be rationally related to "values connected with the taxing State." ' " Ibid . To determine whether a State has the requisite "minimum connection" with the object of its tax, this Court borrows from the familiar test of International Shoe Co. v. Washington , 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Quill , 504 U.S. at 307, 112 S.Ct. 1904. A State has the power to impose a tax only when the taxed entity has "certain minimum contacts" with the State such that the tax "does not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. , 326 U.S. at 316, 66 S.Ct. 154 ; see Quill , 504 U.S. at 308, 112 S.Ct. 1904. The "minimum contacts" inquiry is "flexible" and focuses on the reasonableness of the government's action. Quill , 504 U.S. at 307, 112 S.Ct. 1904. Ultimately, only those who derive "benefits and protection" from associating with a State should have obligations to the State in question. International Shoe , 326 U.S. at 319, 66 S.Ct. 154. III One can imagine many contacts with a trust or its constituents that a State might treat, alone or in combination, as providing a "minimum connection" that justifies a tax on trust assets. The Court has already held that a tax on trust income distributed to an in-state resident passes muster under the Due Process Clause. Maguire v. Trefry , 253 U.S. 12, 16-17, 40 S.Ct. 417, 64 L.Ed. 739 (1920). So does a tax based on a trustee's in-state residence. Greenough , 331 U.S. at 498, 67 S.Ct. 1400. The Court's cases also suggest that a tax based on the site of trust administration is constitutional. See Hanson v. Denckla , 357 U.S. 235, 251, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) ; Curry v. McCanless , 307 U.S. 357, 370, 59 S.Ct. 900, 83 L.Ed. 1339 (1939). A different permutation is before the Court today. The Kaestner Trust made no distributions to any North Carolina resident in the years in question. 371 N.C., at 134-135, 814 S.E.2d at 45. The trustee resided out of State, and Trust administration was split between New York (where the Trust's records were kept) and Massachusetts (where the custodians of its assets were located). Id ., at 134, 814 S.E.2d at 45. The trustee made no direct investments in North Carolina in the relevant tax years, App. to Pet. for Cert. 52a, and the settlor did not reside in North Carolina. 371 N.C., at 134, 814 S.E.2d at 45. Of all the potential kinds of connections between a trust and a State, the State seeks to rest its tax on just one: the in-state residence of the beneficiaries. Brief for Petitioner 34-36; see App. to Pet. for Cert. 54a. We hold that the presence of in-state beneficiaries alone does not empower a State to tax trust income that has not been distributed to the beneficiaries where the beneficiaries have no right to demand that income and are uncertain ever to receive it. In limiting our holding to the specific facts presented, we do not imply approval or disapproval of trust taxes that are premised on the residence of beneficiaries whose relationship to trust assets differs from that of the beneficiaries here. A In the past, the Court has analyzed state trust taxes for consistency with the Due Process Clause by looking to the relationship between the relevant trust constituent (settlor, trustee, or beneficiary) and the trust assets that the State seeks to tax. In the context of beneficiary contacts specifically, the Court has focused on the extent of the in-state beneficiary's right to control, possess, enjoy, or receive trust assets. The Court's emphasis on these factors emerged in two early cases, Safe Deposit & Trust Co. of Baltimore v. Virginia , 280 U.S. 83, 50 S.Ct. 59, 74 L.Ed. 180 (1929), and Brooke v. Norfolk , 277 U.S. 27, 48 S.Ct. 422, 72 L.Ed. 767 (1928), both of which invalidated state taxes premised on the in-state residency of beneficiaries. In each case the challenged tax fell on the entirety of a trust's property, rather than on only the share of trust assets to which the beneficiaries were entitled. Safe Deposit , 280 U.S. at 90, 92, 50 S.Ct. 59 ; Brooke , 277 U.S. at 28, 48 S.Ct. 422. In Safe Deposit , the Court rejected Virginia's attempt to tax a trustee on the "whole corpus of the trust estate," 280 U.S. at 90, 50 S.Ct. 59 ; see id. , at 93, 50 S.Ct. 59, explaining that "nobody within Virginia ha[d] present right to [the trust property's] control or possession, or to receive income therefrom," id. , at 91, 50 S.Ct. 59. In Brooke , the Court rejected a tax on the entirety of a trust fund assessed against a resident beneficiary because the trust property "[wa]s not within the State, d[id] not belong to the [beneficiary] and [wa]s not within her possession or control." 277 U.S. at 29, 48 S.Ct. 422. On the other hand, the same elements of possession, control, and enjoyment of trust property led the Court to uphold state taxes based on the in-state residency of beneficiaries who did have close ties to the taxed trust assets. The Court has decided that States may tax trust income that is actually distributed to an in-state beneficiary. In those circumstances, the beneficiary "own[s] and enjoy[s]" an interest in the trust property, and the State can exact a tax in exchange for offering the beneficiary protection. Maguire , 253 U.S. at 17, 40 S.Ct. 417 ; see also Guaranty Trust Co. v. Virginia , 305 U.S. 19, 21-23, 59 S.Ct. 1, 83 L.Ed. 16 (1938). All of the foregoing cases reflect a common governing principle: When a State seeks to base its tax on the in-state residence of a trust beneficiary, the Due Process Clause demands a pragmatic inquiry into what exactly the beneficiary controls or possesses and how that interest relates to the object of the State's tax. See Safe Deposit , 280 U.S. at 91, 50 S.Ct. 59. Although the Court's resident-beneficiary cases are most relevant here, similar analysis also appears in the context of taxes premised on the in-state residency of settlors and trustees. In Curry , for instance, the Court upheld a Tennessee trust tax because the settlor was a Tennessee resident who retained "power to dispose of" the property, which amounted to "a potential source of wealth which was property in her hands." 307 U.S. at 370, 59 S.Ct. 900. That practical control over the trust assets obliged the settlor "to contribute to the support of the government whose protection she enjoyed." Id. , at 371, 59 S.Ct. 900 ; see also Graves v. Elliott , 307 U.S. 383, 387, 59 S.Ct. 913, 83 L.Ed. 1356 (1939) (a settlor's "right to revoke [a] trust and to demand the transmission to her of the intangibles ... was a potential source of wealth" subject to tax by her State of residence). A focus on ownership and rights to trust assets also featured in the Court's ruling that a trustee's in-state residence can provide the basis for a State to tax trust assets. In Greenough , the Court explained that the relationship between trust assets and a trustee is akin to the "close relationship between" other types of intangible property and the owners of such property. 331 U.S. at 493, 67 S.Ct. 1400. The trustee is "the owner of [a] legal interest in" the trust property, and in that capacity he can incur obligations, become personally liable for contracts for the trust, or have specific performance ordered against him. Id. , at 494, 67 S.Ct. 1400. At the same time, the trustee can turn to his home State for "benefit and protection through its law," id. , at 496, 67 S.Ct. 1400, for instance, by resorting to the State's courts to resolve issues related to trust administration or to enforce trust claims, id. , at 495, 67 S.Ct. 1400. A State therefore may tax a resident trustee on his interest in a share of trust assets. Id. , at 498, 67 S.Ct. 1400. In sum, when assessing a state tax premised on the in-state residency of a constituent of a trust-whether beneficiary, settlor, or trustee-the Due Process Clause demands attention to the particular relationship between the resident and the trust assets that the State seeks to tax. Because each individual fulfills different functions in the creation and continuation of the trust, the specific features of that relationship sufficient to sustain a tax may vary depending on whether the resident is a settlor, beneficiary, or trustee. When a tax is premised on the in-state residence of a beneficiary, the Constitution requires that the resident have some degree of possession, control, or enjoyment of the trust property or a right to receive that property before the State can tax the asset. Cf. Safe Deposit , 280 U.S. at 91-92, 50 S.Ct. 59. Otherwise, the State's relationship to the object of its tax is too attenuated to create the "minimum connection" that the Constitution requires. See Quill , 504 U.S. at 306, 112 S.Ct. 1904. B Applying these principles here, we conclude that the residence of the Kaestner Trust beneficiaries in North Carolina alone does not supply the minimum connection necessary to sustain the State's tax. First, the beneficiaries did not receive any income from the trust during the years in question. If they had, such income would have been taxable. See Maguire , 253 U.S. at 17, 40 S.Ct. 417 ; Guaranty Trust Co. , 305 U.S. at 23, 59 S.Ct. 1. Second, the beneficiaries had no right to demand trust income or otherwise control, possess, or enjoy the trust assets in the tax years at issue. The decision of when, whether, and to whom the trustee would distribute the trust's assets was left to the trustee's "absolute discretion." Art. I, § 1.2(a), App. 46-47. In fact, the Trust agreement explicitly authorized the trustee to distribute funds to one beneficiary to "the exclusion of other[s]," with the effect of cutting one or more beneficiaries out of the Trust. Art. I, § 1.4, id. , at 50. The agreement also authorized the trustee, not the beneficiaries, to make investment decisions regarding Trust property. Art. V, § 5.2, id ., at 55-60. The Trust agreement prohibited the beneficiaries from assigning to another person any right they might have to the Trust property, Art. XII, id ., at 70-71, thus making the beneficiaries' interest less like "a potential source of wealth [that] was property in [their] hands." Curry , 307 U.S. at 370-371, 59 S.Ct. 900. To be sure, the Kaestner Trust agreement also instructed the trustee to view the trust "as a family asset and to be liberal in the exercise of the discretion conferred," suggesting that the trustee was to make distributions generously with the goal of "meet[ing] the needs of the Beneficiaries" in various respects. Art. I, § 1.4(c), App. 51. And the trustee of a discretionary trust has a fiduciary duty not to "act in bad faith or for some purpose or motive other than to accomplish the purposes of the discretionary power." 2 Restatement (Third) of Trusts § 50, Comment c , p. 262 (2003). But by reserving sole discretion to the trustee, the Trust agreement still deprived Kaestner and her children of any entitlement to demand distributions or to direct the use of the Trust assets in their favor in the years in question. Third, not only were Kaestner and her children unable to demand distributions in the tax years at issue, but they also could not count on necessarily receiving any specific amount of income from the Trust in the future. Although the Trust agreement provided for the Trust to terminate in 2009 (on Kaestner's 40th birthday) and to distribute assets to Kaestner, Art. I, § 1.2(c)(1), App. 47, New York law allowed the trustee to roll over the trust assets into a new trust rather than terminating it. N. Y. Est., Powers & Trusts § 10-6.6(b). Here, the trustee did just that. 371 N.C., at 135, 814 S.E.2d at 45. Like the beneficiaries in Safe Deposit , then, Kaestner and her children had no right to "control or posses[s]" the trust assets "or to receive income therefrom." 280 U.S. at 91, 50 S.Ct. 59. The beneficiaries received no income from the Trust, had no right to demand income from the Trust, and had no assurance that they would eventually receive a specific share of Trust income. Given these features of the Trust, the beneficiaries' residence cannot, consistent with due process, serve as the sole basis for North Carolina's tax on trust income. IV The State's counterarguments do not save its tax. First, the State interprets Greenough as standing for the broad proposition that "a trust and its constituents" are always "inextricably intertwined." Brief for Petitioner 26. Because trustee residence supports state taxation, the State contends, so too must beneficiary residence. The State emphasizes that beneficiaries are essential to a trust and have an "equitable interest" in its assets. Greenough , 331 U.S. at 494, 67 S.Ct. 1400. In Stone v. White , 301 U.S. 532, 57 S.Ct. 851, 81 L.Ed. 1265 (1937), the State notes, the Court refused to "shut its eyes to the fact" that a suit to recover taxes from a trust was in reality a suit regarding "the beneficiary's money." Id. , at 535, 57 S.Ct. 851. The State also argues that its tax is at least as fair as the tax in Greenough because the Trust benefits from North Carolina law by way of the beneficiaries, who enjoy secure banks to facilitate asset transfers and also partake of services (such as subsidized public education) that obviate the need to make distributions (for example, to fund beneficiaries' educations). Brief for Petitioner 30-33. The State's argument fails to grapple with the wide variation in beneficiaries' interests. There is no doubt that a beneficiary is central to the trust relationship, and beneficiaries are commonly understood to hold "beneficial interests (or 'equitable title') in the trust property," 2 Restatement (Third) of Trusts § 42, Comment a , at 186. In some cases the relationship between beneficiaries and trust assets is so close as to be beyond separation. In Stone , for instance, the beneficiary had already received the trust income on which the government sought to recover tax. See 301 U.S. at 533, 57 S.Ct. 851. But, depending on the trust agreement, a beneficiary may have only a "future interest," an interest that is "subject to conditions," or an interest that is controlled by a trustee's discretionary decisions. 2 Restatement (Third) of Trusts § 49, Comment b , at 243. By contrast, in Greenough , the requisite connection with the State arose from a legal interest that necessarily carried with it predictable responsibilities and liabilities. See 331 U.S. at 494, 67 S.Ct. 1400. The different forms of beneficiary interests counsels against adopting the categorical rule that the State urges. Second, the State argues that ruling in favor of the Trust will undermine numerous state taxation regimes. Tr. of Oral Arg. 8, 68; Brief for Petitioner 6, and n. 1. Today's ruling will have no such sweeping effect. North Carolina is one of a small handful of States that rely on beneficiary residency as a sole basis for trust taxation, and one of an even smaller number that will rely on the residency of beneficiaries regardless of whether the beneficiary is certain to receive trust assets. Today's decision does not address state laws that consider the in-state residency of a beneficiary as one of a combination of factors, that turn on the residency of a settlor, or that rely only on the residency of noncontingent beneficiaries, see, e.g. , Cal. Rev. & Tax. Code Ann. § 17742(a). We express no opinion on the validity of such taxes. Finally, North Carolina urges that adopting the Trust's position will lead to opportunistic gaming of state tax systems, noting that trust income nationally exceeded $ 120 billion in 2014. See Brief for Petitioner 39, and n. 13. The State is concerned that a beneficiary in Kaestner's position will delay taking distributions until she moves to a State with a lower level of taxation, thereby paying less tax on the funds she ultimately receives. See id. , at 40. Though this possibility is understandably troubling to the State, it is by no means certain that it will regularly come to pass. First, the power to make distributions to Kaestner or her children resides with the trustee. When and whether to make distributions is not for Kaestner to decide, and in fact the trustee may distribute funds to Kaestner while she resides in North Carolina (or deny her distributions entirely). Second, we address only the circumstances in which a beneficiary receives no trust income, has no right to demand that income, and is uncertain necessarily to receive a specific share of that income. Settlors who create trusts in the future will have to weigh the potential tax benefits of such an arrangement against the costs to the trust beneficiaries of lesser control over trust assets. In any event, mere speculation about negative consequences cannot conjure the "minimum connection" missing between North Carolina and the object of its tax. * * * For the foregoing reasons, we affirm the judgment of the Supreme Court of North Carolina. It is so ordered. Justice ALITO, with whom THE CHIEF JUSTICE and Justice GORSUCH join, concurring. I join the opinion of the Court because it properly concludes that North Carolina's tenuous connection to the income earned by the trust is insufficient to permit the State to tax the trust's income. Because this connection is unusually tenuous, the opinion of the Court is circumscribed. I write separately to make clear that the opinion of the Court merely applies our existing precedent and that its decision not to answer questions not presented by the facts of this case does not open for reconsideration any points resolved by our prior decisions. * * * Kimberley Rice Kaestner is the beneficiary of a trust established by her father. She is also a resident of North Carolina. Between 2005 and 2008, North Carolina required the trustee, who is a resident of Connecticut, to pay more than $ 1.3 million in taxes on income earned by the assets in the trust. North Carolina levied this tax because of Kaestner's residence within the State. States have broad discretion to structure their tax systems. But, in a few narrow areas, the Federal Constitution imposes limits on that power. See, e.g., McCulloch v. Maryland , 4 Wheat. 316, 4 L.Ed. 579 (1819) ; Comptroller of Treasury of Md. v. Wynne , 575 U. S. ----, 135 S.Ct. 1787, 191 L.Ed.2d 813 (2015). The Due Process Clause creates one such limit. It imposes restrictions on the persons and property that a State can subject to its taxation authority. "The Due Process Clause 'requires some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.' " Quill Corp. v. North Dakota , 504 U.S. 298, 306, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992) (quoting Miller Brothers Co. v. Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:

songer_appel1_7_2

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 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"). Margaret KLUGH, Katherine Klugh Maultsby, Mary Klugh Garner, John Bradley Klugh, William W. Bradley, III, Frederick H. Bradley, Patrick H. Bradley, Edna Bradley Troxell, Hugh W. Bradley, Mabel Bradley Payne, Mary Bradley Pressly, Thomas R. Bradley, William T. Bradley, Margaret Bradley Poole, Davis W. Bradley, John T. Bradley, Jr., Frances K. Bradley, Mark E. Bradley, Jr., Elizabeth Bradley McGarity, Robert F. Bradley, III, Thomas J. Bradley, Frances Wright Bradley, III, Mary Bradley Brown, Rufus A. Johnson, III, William R. Bradley, II, Margaret Bradley Shuford, Arthur L. Bradley, James B. Bradley, Curtis L. Bradley, Davis J. Wardlaw, Martha Wardlaw Buie, Forest Bradley Wardlaw, Jr., Ivey Jean Wardlaw Pressly, Robert S. Wardlaw, William W. Wardlaw, Mildred E. Wardlaw, John U. Wardlaw, Mary Wardlaw Deason, Annie Wardlaw Wright, Frances M. Wardlaw, John K. Bradley, Mary Bradley Miller, Martha Bradley Moody, Frances Trenholm Bradley, Jane H. Bradley, Martha B. Mayo, Robert F. Bradley, Jr., Eustabe U. Bradley, Mary Bradley Cox, and Frances Thompson Sheppard, Appellants, v. UNITED STATES of America, certain lands located in Abbeville, Greenwood and McCormick Counties, South Carolina, being a portion of the estate of W. K. Bradley, Deceased, and the United States Department of Agriculture, Appellees. No. 77-1678. United States Court of Appeals, Fourth Circuit. Argued May 2, 1978. Decided Nov. 17, 1978. J. Fred Buzhardt, Beaufort, S. C. (Barry L. Johnson, Dowling, Dowling, Sanders & Dukes, Beaufort, S. C., Joseph O. Rogers, Jr., Rogers, Riggs & Rickenbaker, Sumter, S. C., on brief), for appellants. Carl Strass, Atty., Dept. of Justice, Washington, D. C. (James W. Moorman, Acting Asst. Atty. Gen., Washington, D. C., Thomas E. Lydon, Jr., U. S. Atty., Columbia, S. C., James D. McCoy, III, Asst. U. S. Atty., Greenville, S. C., Edmund B. Clark and James R. Arnold, Attys., Dept. of Justice, Washington, D. C., on brief), for appellees. Before WINTER, BUTZNER and HALL, Circuit Judges. WINTER, Circuit Judge: The principal question in this appeal is the meaning of the will of W. K. Bradley of South Carolina who died on December 30, 1881 with respect to the persons in whom the fee of his real property vests. The question arises because certain of the testator’s lineal descendants claim that, as devisees under the will, they have property interests in land previously owned by him which were not validly acquired by the United States in several condemnation proceedings undertaken in 1936-39 pursuant to §§ 7 and 8 of the Weeks Act, 16 U.S.C. §§ 516, 517, 517a. The condemnation proceedings were ineffective to acquire their interests, they allege, because they were not parties to the proceedings nor did they consent to the condemnations. In their suit against the United States, they sought return of their property and also an accounting for its use since the date of the purported taking. The district court interpreted the will to vest the remainder in fee twenty-one years after the death of the testator; and since all of the persons having any interest in the property under that construction were parties to the condemnation proceedings and offered no contest, it granted summary judgment for the government. We do not think that under the will the fee will vest until twenty-one years after the death of the survivor of the children and grandchildren of the testator, living at his death, to whom he devised successive life estates. Anticipating that this might be the decision we reach concerning the meaning of the will, the United States also asserts that (a) the suit is barred by limitations, and (b) the consent of minors, unknown persons and persons unborn who may have an interest in the property need not be obtained in order for the property to be condemned validly. We conclude that it would be premature for us to pass upon these questions until another question that we perceive, but which has not been briefed or argued by the parties, is resolved. Accordingly, we reverse the judgment of dismissal and remand the case to the district court for further proceedings. I. W. K. Bradley died on December 30,1881; his will was dated December 8, 1881. He was survived by his widow, Sarah Frances Wideman Willis Bradley; his five children, John E., Robert Foster, George Clarence, William Tatum and Sarah Frances Bradley Thomson; and twelve grandchildren. Of this group, the last to die was Annie Elizabeth Bradley Wardlaw, a granddaughter. She died January 21, 1967. The pertinent portion of the will, the text of which is set out in the margin, left the testator’s real property and mills to his wife and children “to be theirs and for their use and benefit for life, and after their death to go to their children and on down as far as the law will allow.” Although the will did not establish a formal trust and name trustees, it provided for the management of the property, gave the heirs the right to occupy the property upon paying rent, and provided for an annual distribution of the net income of the estate to each member of the family entitled thereto. The testator directed that the estate “shall be perpetuated in my family,” and he forbade both the sale of any portion of the property and application of the distributive share of the annual net income to satisfy the debts of any member of the family. The estate included many acres of land, some of which was cultivated, some of which was pasture land, and some of which was improved by buildings and dwelling houses. In 1910, the will was interpreted by the Court of Common Pleas of Abbeville County, South Carolina. At that time the testator’s widow had died, as had three of his five children. One of his deceased children had left a widow who instituted the litigation, and another of the deceased children had left surviving him “numerous children, some of whom were not in being when the testator died.” Bradley v. Bradley, Court of Common Pleas, Abbeville County, South Carolina, decree entered September 30, 1910 (unreported). In the suit, the widow sought a partition and division of the estate and an accounting of the yearly income alleging that, under the South Carolina rules of intestate succession, she had succeeded to her husband’s interest and to his share of the interest of his mother and his sibling who died without issue, both of whom also died intestate. The Court ruled otherwise, holding: The testator, as is shown by a consideration of the Will, intended to devise the whole of his estate and to die intestate as to none of it; and there is an entire lack of evidence necessary to overcome the presumption against partial intestacy. The strongest and most conclusive ground, however, is the very evident intention of William K. Bradley to perpetuate the estate in his family as far as possible, and to create the life estates sub-ordinate and sub-servient to this purpose. In construing the terms of a Will, the obvious intention of the testator, provided it is not inconsistent with an established rule of law or repugnant to public policy, always controls. . The intention of the testator herein expressed is neither inconsistent with established rules of law nor repugnant to public policy. The life estates were devised to the heirs-at-law “to be theirs and for their use and benefit for life, and after their death to go to their children and on down as far as the law will allow.” In case a life-tenant dies without leaving children, the life tenancy merges again in the common property, and the widow or widower as the ease may be, takes no interest. If there are any children they share as representatives of the parent. Any other construction would defeat the clearly apparent intention of the testator. Accordingly, the South Carolina court decreed an accounting of the net income of the estate with distribution to be made one-third (Vs) to each of the testator’s two surviving children and one twenty-first (V21) to each of the seven children of the deceased child of the testator who died with issue. Some of the lands of the estate were condemned by the United States in 1936 (164.40 acres, part of a total condemnation of 1,744.10 acres in McCormick County, S.C.), in 1937 (2,003.70 acres, part of a total condemnation of 4,177.30 acres in Greenwood and McCormick Counties, S.C.), and in 1939 (1,074.20 acres, part of a total condemnation of 1,922.10 acres in McCormick and Abbeville Counties, S.C.) to establish a national forest. The condemnations were conducted under §§ 7 and 8 of the Weeks Act, 16 U.S.C. §§ 516, 517 and 517a, one of the provisions of which is that the United States shall not acquire lands under that Act “until the legislature of the State in which the land lies shall have consented to the acquisition of such land . . . .” South Carolina did consent to the condemnation, S.C.Code § 3-1-410, but its consent was conditioned upon “the consent of the owner ... [as to] any building, dwelling house or cultivated or pasture lands.” In the instant case, plaintiffs alleged that most of the condemned lands fit into the category requiring individual owner consent. It is apparently not disputed that those of the adult lineal descendants of the testator who had life estates at the time of the several condemnation proceedings consented, at least to the condemnation of their life estates, but it is claimed that they did not consent to the condemnation of their undivided interest, if any, in the contingent remainder in the fee. The government makes no claim that guardians or legal representatives of unknown or unborn heirs were named and served in the condemnation proceedings, but it does assert that publication of the desire of the United States to acquire the lands against “unknown, nonresident or minor” owners was made pursuant to S.C.Code § 28-7-10. Although the exact number and the identities of the present holders are not clear in the record before us, it appears also that, if the will is interpreted not to vest the fee until 21 years after the death of the last survivor of the lives in being at the date of death of the testator, some life estates have come into being subsequent to the condemnation proceedings. Indeed, under that construction additional life estates may come into being until 1988, and not until January 21, 1988 (or October 21, 1988, if, on January 21, 1988, a putative taker is en ventre sa mere) will the ultimate takers of the fee be known. The district court construed the will as expressing an intention to devise life estates to successive lineal generations as a class “as far as the law will allow.” The quoted phrase, the district court concluded, indicated recognition by the testator that a perpetual devolution of generational life estates is limited by law. By application of the rule against perpetuities, the district court ruled that the fee interest in the testator’s property vested in the testator’s great-grandchildren living 21 years after the testator’s death. The district court found support for its ruling in the management provisions of the will and thought that its result created useful, rather than continuously fragmented, life estates. Having placed this construction on the will, the district court found that the eleven great-grandchildren, alive 21 years after the death of the testator and alive also on the dates of the condemnations, had been served and did not contest the condemnations, with the result that the district court entered judgment for the United States. II. As the Court of Common Pleas in the 1910 construction case stated, “the obvious intention of the testator, provided it is not inconsistent with an established rule of law or repugnant to public policy, always controls. . . .” This is as much the law of South Carolina today as it was in 1910 or in 1881 when the will became effective. See Shelby v. Shelby, 244 S.C. 598, 137 S.E.2d 851 (1964); Shelvin v. Colony Lutheran Church, 227 S.C. 598, 88 S.E.2d 674 (1955); Green v. Green, 210 S.C. 391, 42 S.E.2d 884 (1947). As is manifest, the intention of the testator in the instant case was to postpone the ultimate devolution of his estate for “as far as the law will allow,” creating in the interim prior to ultimate devolution a series of life estates, determined in the 1910 construction case to be measured in quantum by per stirpes distribution, and not per capita. The questions in this case thus become, first, how long does the law allow, and second, what did the testator mean by the use of the phrase, for the answers to these questions will determine in whom was the fee vested in the 1936-39 condemnation cases and whose consent was required with respect to the condemnation of any buildings, dwelling houses, or cultivated or pasture lands. The limitation of the law on the postponement of the vesting of the fee is the rule against perpetuities, which is recognized as the law of South Carolina. Cox v. Buch, 39 S.C.L. 604 (1851). The rule is that a future interest must vest within a life or lives in being at the time that the interest is created plus 21 years and the period of periods of gestation, where applicable. See Restatement of Property §§ 370 and 374. The operation of the rule in the instant case depends upon the proper interpretation of the testator’s will, and it is this to which we now turn. Basically, we must decide whether the testator intended his estate to devolve on successive classes of descendants or whether his intent was to create successive life estates in his descendants individually for as long as the rule against perpetuities might allow. This determination of intent is critical because the length of time during which future interests are permitted to survive is shortened where the testator intends the gifts to his descendants to be by classes. See Restatement of Property § 383. This is so because under the majority view the rule against perpetuities is violated and the remote interests voided if the period prescribed by the rule may be exceeded, not whether it actually is exceeded. See Black v. Gettys, 238 S.C. 167, 119 S.E.2d 660, 664 (1961). Thus, a devise of a life estate to grandchildren with remainder over to great-grandchildren as a class would violate the rule, because it is possible that a great-grandchild may be born more than 21 years after the death of a life in being at the time of the testator’s death. Where it is possible that the interest given to one member of the class may violate the rule against perpetuities, the gift is void as to the entire class. As a consequence, in the example cited, the fee would vest in grandchildren in order to avoid running afoul of the rule against perpetuities. We do not think, however, that in the instant case the testator intended to make class gifts under the will in question. It is true that for his heirs and descendants more remote than his widow and five children, to whom he referred by name, he employed only the word “children” and that there is a rule of construction that the use of such a phrase usually limits a class gift. Restatement of Property § 279. The use of the word “children” might denote an intention to create a class gift, but its use might equally be explained by the fact that some of the testator’s intended takers were not yet in being and the testator Could not know their names. In any event, the rule is simply a rule of construction, and it is subservient to any contrary intention of the testator expressed elsewhere in his will. We think that in the will in question the testator expressed the intent not to be bound by the usual rule of construction arising from his use of the term “children” and that he intended to postpone the vesting of the fee interest in his property for the longest period that the rule against perpetuities would permit. First, the testator employed the phrase, in describing the postponement of vesting, “to their children and on down as far as the law will allow.” (Emphasis added.) We think that this means for the maximum period that the rule against perpetuities would permit under any reasonable construction of the will. Similar language was given this construction in Fitchie v. Brown, 211 U.S. 321, 29 S.Ct. 106, 53 L.Ed. 202 (1908); Gale v. Gale, 85 N.H. 358, 159 A. 122 (1932); and Stellings v. Autry, 257 N.C. 303, 126 S.E.2d 140 (1962). Second, the testator articulated his intent that his estate be “perpetuated in [his] family,” and he reinforced this expression by spendthrift provisions and management provisions. This, too, evidences an intention for the restriction to continue as long as possible under any reasonable construction of the will and negatives an intention to make a class gift which would have the effect of shortening the period. Unlike the district court, we do not think that the negative inference to be drawn from the testator’s failure to provide for the selection of a manager or executors beyond the generation of his children is sufficient to overcome his other expressions that vesting be postponed beyond the death of his children. Thus, taking as the measuring life the survivors of those mentioned in the testator’s will who were alive on the date of his death (his widow, his five children and his twelve grandchildren), see Fitchie v. Brown, 211 U.S. at 330-34, 29 S.Ct. 106, we hold that, under the proper interpretation of the will, the fee to the testator’s lands will not vest until January 21, 1988, and possibly as much as nine months later. On remand, the district court should reevaluate the effect of the service of process and failure to contest in the 1936-39 condemnation proceedings as defense to plaintiffs’ claims in the light of this holding. III. The government also asserts other legal defenses to the suit. It contends, first, that the action is in substance a quiet title action and that the twelve-year statute of limitations contained in 28 U.S.C. § 2409a(f) bars suit since more than twelve years have elapsed since 1939, the date of the last taking. Its second defense is that, under § 8 of the Weeks Act, as amended, 16 U.S.C. §§ 517 and 517a, and such authority as United States v. County of Fairfax, Virginia, 345 U.S. 344, 348-49, 73 S.Ct. 693, 97 L.Ed. 1061 (1953), the United States is not obliged to join remote possible claimants in order to acquire fee simple title by condemnation; and therefore the United States acquired good title in the original condemnations in the instant case. Of course, plaintiffs vigorously challenge these contentions. With respect to the defense of limitations, they assert that (a) the district court retained jurisdiction in the condemnation cases and the instant action is merely a reopening of them and not a suit to quiet title under 28 U.S.C. § 2409a, (b) the instant case is a motion under F.R.Civ.P. 60(b)(4) to attack a void judgment, and (c) even if the suit is deemed an action to quiet title, limitations cannot begin to run until title vests and until any title holders cease to be minors. With respect to the joinder of “remote” owners, plaintiffs stress that this is a case, unlike most condemnation cases, where the consent of all owners is required before the United States has any authority to condemn. Except for our comment in the margin, we express no views on these various legal issues. We decline to do so for two reasons. First, we cannot tell from the record before us who, of the putative takers of the fee, was in being at the time of the condemnation actions and whether specific notice was given to them. Second and more importantly, we find from our examination of the papers in each of the condemnation cases that the unknown heirs and assigns of the testator and some or all of his children were alleged to have a property interest in the Bradley property taken and proceeded against by publication in accordance with S.C.Code § 28-7-10 and its predecessors. However, guardians ad litem were not appointed to represent unknown heirs of the testator while guardians ad litem were appointed to represent known minor owners and, in one case, an owner who was incompetent. Thus we think that, before the defenses asserted by the United States are adjudicated, it is necessary to decide what was the legal effect of joining the unknown heirs and proceeding against them by publication when they were not represented by guardians ad litem and did not participate in the proceedings. An important factor, we think, in the resolution of this question is the requirement of §§ 7 and 8 of the Weeks Act and of S.C.Code § 3-1-410 requiring the consent of the owners as to the condemnation of any building, dwelling house, or cultivated or pasture lands sought to be condemned, although we express no view on the weight to be given this factor. Neither in their briefs nor in oral argument have the parties addressed the question of the effect of joining unknown heirs and proceeding against them by publication but without the appointment of a guardian ad litem. It should be addressed in an adversary proceeding because upon its resolution may depend the outcome of this law suit; its resolution may obviate the necessity of considering the validity of the government’s other defenses. Accordingly, the judgment of the district court is reversed and the case is remanded for further proceedings in accordance with this opinion. REVERSED AND REMANDED. . ... I will that all of my land and mills viz [testator here enumerates his real property in South Carolina] or any other lands that I may die possessed of in any State or Territory in the United States and all of my personal property, consisting of notes, mortgages, accounts, and money, life Stock, etc., be given to my dearly beloved wife Sarah Frances Bradley and my children namely John Edward Bradley, Robert Foster Bradley, George Clarence Bradley, William Tatum Bradley, and Sarah Frances Thomson to be theirs and for their use and benefit for life, and after their death to go to their children and on down as far as the law will allow. I intend it shall be perpetuated in my family, and not to be disposed of in any way for the debts of any one or all the family any members of the family can settle on any one of the places by all agreeing as to the value of the rent he must account for: if the family cannot agree as to the value of such place or places, then disinterested parties must be called in and they must fix a price to such place or places. I further will that all of my family, wife and children be a power to select some one of the family to transact all of the business connected with the Estate who must keep a book of receipts and expenditures for each year said Agent to be chosen annually, and on the first Monday in January of each year make a just settlement with each member of the family of the net proceeds of the Estate. That my intention may be more fully understood, with regard to the interest of each of the above named members of the family, that the property be kept in common and that each distributive share for each year must go to each of the above named heirs an — and for their use and benefit, and not to pay any note or indebtedness to any or all of said heirs. In regard to the interest that my dearly beloved wife must have in the Estate, I further will her the above described Home place, houses and all the furniture, household and kitchen, all stock horses, mules, cattle, hogs, etc., to be hers for life and at her death to revert to the Estate. And I further will that she have an equal share of the annual proceeds of the Estate, during her life time to dispose of as she may think best. And as all of my children are of age I further will that each of them become Executors of this my Last Will and Testament Thomas P. Thomson representing my daughter Sarah Frances Thomson. Any personal property may be sold by those of the family agreeing as to time and price. Any member of the family who does not conform to the requirements of this will shall be disinherited by the order of the will. . This is the so-called “what-might-happen” approach in applying the rule against perpetuities. The more modern approach, adopted in a number of states (but not South Carolina) and advocated by the draftsmen of the proposed Restatement of the Law Second, Property (Tent. Draft No. 1, March 15, 1978), is the “wait-and-see” approach under which the determination of whether an interest fails under the rule against perpetuities is made on the basis of what does happen and not what might happen. See Restatement (Second) of Property, Comment d, Statutory Note to Section 1.4, and Reporter’s Note to Section 1.4 (Tentative Draft No. 1, 1978). See also summary of discussion of Tentative Draft No. 1 at American Law Institute Meeting, May 1978, 46 U.S.L.W. 2635 (May 30, 1978). . From our examination of the papers in the condemnation actions, we think that this contention is lacking in merit. In the order each of the three condemnation actions confirming the jury’s verdict, the district court directed payment of the verdict into the registry of the court and, upon payment, authorized the clerk to execute a deed conveying title to the United States. In each of such orders, the court added, “Let this cause remain open for such other and further orders, decrees and judgments as may be necessary in the premises,” or words of similar import. Significantly, however, in subsequent orders making final distribution of the moneys in the court’s registry, no such reservation of jurisdiction was recited. We think that the language reserving jurisdiction was limited to subsequent orders to disburse the proceeds, not to reopen the proceedings, and that jurisdiction was exhausted when final distribution was made. . In denying the government’s motion to dismiss for lack of jurisdiction, the district court ruled that the instant proceeding “is really a continuation of the original action by way of motion either under 60(b) or by independent action in equity, which is ancillary to the main action.” The whole problem about the district court’s jurisdiction stems largely from the fact that the jurisdictional allegations of the complaint are patently deficient. While plaintiffs alleged that “the parties hereto, the subject matter hereof and all things hereinafter alleged are within the jurisdiction of the [district court],” no statute, rule or other jurisdictional base was alleged. On remand, the district court should require that the complaint be amended to comply with F.R.Civ.P. 8(a)(1). 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_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. MARYLAND CASUALTY CO. v. NEW JERSEY SHIPBUILDING & DREDGING CO. No. 4430. Circuit Court of Appeals, Third Circuit. June 15, 1931. James D. Carpenter, Jr., and McDermott, Enright & Carpenter, all of Jersey City, N. J., for appellant. Reynier J. Wortendyke, Jr., and Auten-rieth, Gannon & Wortendyke, all of Jersey City, N. J., for appellee. Before BUFFINGTON, WOOLLEY, and THOMPSON, Circuit Judges. THOMPSON, Circuit Judge. This is an appeal by the Maryland Casualty Company, hereinafter designated the Casualty Company, from a judgment recovered against it on a verdict for $15,000 as damages the New Jersey Shipbuilding & Dredging Company, hereinafter designated the Dredging Company, plaintiff in the court below, claimed to have sustained in loss of profits through the breach of an alleged contract with the Casualty Company for the performance of dredging work in Staten Island Sound. The Casualty Company, appellant, was surety for the performance by the Seely Engineering Company of a contract with the United States for dredging and removing rock in Staten Island Sound. Upon default of the Seely Company in completion of .its contract, the Casualty Company became liable to the United States for completion or the cost of completion of the contract. It, therefore, sent out invitations to complete the work, one of which, in the following form, was sent to the Dredging Company: “July 11, 1927. , “New Jersey Shipbuilding & Dredging Co. “50 Broad Street, “New York City. “Gentlemen: “The contract of the, Seely Engineering Company for the dredging and removal of rock in the New York and New Jersey Channels has been declared in default by the War Department. “The War Department has called upon the Maryland Casualty Company, as surety on the bond of the Seely Engineering Company, to complete the Seely Engineering Company’s contract. Therefore, the Maryland Casualty Company is interested in bids for the completion of the Seely Engineering Company’s contract for the dredging and removal of rock in the New York and New Jersey Channels. “The Maryland Casualty Company will receive bids for the completion of this contract at its office at 105 William Street, New York City, Room 603 on Thursday, July 14th, at 10:00 o’clock, and will award the contract for the completion of the Seely Engineering Company’s contract to the lowest responsible bidder; reserving however the right to reject any or all bids submitted. “If you are interested, we would be glad to receive your bid on Thursday. “Very truly yours, “E. Kemp Catheart, “Mgr. N. Y. Bonding Claim Division.” On July 14, 1927,- the president of the Dredging Company, Charles D. Pullen, delivered to E. Kemp Catheart, manager of the New York Bonding Claim Division of the Casualty Company, at his office a bid in the following form: “July 14,1927. “Maryland Casualty Company, “105 William Street, “New York City, “Gentlemen: Attention Mr. E. K. Cath-eart, Mgr. “In accordance with your letter of the 11th instant: “We will finish the contract named therein according to the specifications of the U. S. Government Engineers, Second District, New York, dated September 24th, 1925, for the price of Eighteen Dollars seventy-five cents, ($18.75) per cubic yard. We will.be prepared to start on the work in as short time as possible and prosecute it in our usual businesslike manner. “Your letter speaks of this contract, as the contract of the Seely Engineering Company, Inc., and this is referred to by us as of the Engineers Specifications, dated September 24th, 1925. “Very truly yours, Chas. D. Pullen ‘.‘Chas. D. Pullen, President, “50 Broad Street.” The plaintiff was the lowest bidder. The Casualty Company, under its contract with the United States, as surety for the Seely Company, had the right to elect to complete the work. On August 27,1927, it entered into a written contract with the Standard Dredging Company to do the work on its behalf. The Dredging Company thereupon brought suit for damages for loss of profits based upon the allegation that on July 14, 1927, prior to the opening and submission of its bid, the clause of the invitation to bid, reading “reserving however the right to reject any or all bids submitted,” had been waived by the Casualty Company; that, after waiver, on the same day, its bid had been accepted; and that thereupon a contract resulted between the Dredging Company and the Casualty Company for the completion of the Seely Engineering Company’s contract with the United States. At the trial, Mr. Pullen, president of the Dredging Company, testified that he was present at the office of the Casualty Com-any on July 14, 1927, the date on which bids were to be received, and that the following conversation took place: “Catheart said: ‘Well, now, you are here,’ he said, ‘I hope we will get somewhere.’ And he said, ‘I rather expect that we may have some one else.’ “I said, ‘Oh, we are not going to be alone.’ “He said, ‘No, I think not. I have sent out for papers, and I think we will get other bids. I have just heard over the telephone from P. Sanford Ross that they are not ready to bid at this time, but they would be ready a little later, after they can learn a little more about the contract.’ He said, ‘We have one phoned-in price.’ “And I said, ‘Wait a minute, Mr. Cath-eart,’ I said, ‘you cannot go along on phoning and waiting. Are we going to do this business this morning or are we not?’ “And he said, ‘Oh, yes, we will get through with it, but/ he said, ‘the Arundel Company has just phoned in, they are not going to be here.’ “ ‘Well/ I said, ‘Mr. Cathcart, before we go any further, and while we have the opportunity, let us discuss this letter of yours/ and I took from my pocket that letter. ‘Now/ I said, ‘you remember the conference in our office with Mr. Seely and the distinct understanding that my company would not under any circumstances make any bid for this work excepting that we knew that the lowest bidder at this opening was going to get the work. That cannot be done by telephoning. Anybody can change a telephone talk or a telephone price, and/ I said, ‘I should insist, first of all, that the understanding is that the lowest bidder gets the work.’ “He said: ‘Mr. Pullen, you needn’t worry about that at all.’ He said, ‘That is waived in a minute.’ ” The witness further testified: “Mr. Cathcart opened up my envelope and said, ‘New Jersey Shipbuilding & Dredging Company, $18.75. Mr. Pullen, I congratulate you/ he said, ‘I am glad you got the job, yours is the lowest bid.’ “Mr. Williams turned around to both of us and said, ‘Well, I rather expected, Pullen, that you would be a little lower. You are light there with your plant. You have no expense to move onto it, and I rather thought you would get it.’ And he said, ‘I bid you good morning, gentlemen.’ “Mr. Cathcart turned to me around the other side of his desk and said, ‘Mr. Pullen, now, I think your plant is just adapted to' this work, and I am glad you got it.’ And he said, ‘When will you be ready to go to work?’ I said, ‘We are ready today.’ He said, ‘You will hear from me tomorrow.’ We sat down and discussed it. I told him that I thought perhaps we were, and that we could move right over onto the area from where we were.” There was further testimony by Mr. Pul-len as to waiver and acceptance of his bid to the same effect, and he was corroborated by his secretary, Miss Moss, who was with him. The Casualty Company set up want of authority on the part of Mr. Cathcart to bind it, either by waiver of the right to re-jeet any or all bids, or by accepting any bid. Upon those grounds, inter alia, the attorney for the Casualty Company, at the conclusion of the plaintiff’s case, moved for a non-suit. The motion was denied and exception allowed. Mr. Cathcart, upon the witness stand, denied that he had made any statement agreeing, on behalf of the Casualty Company, to waive the right to rejeet bids or that he had accepted the plaintiff’s bid, and denied that either act was within the scope of his authority. The attorney for the defendant also excepted to the charge of the court, affirmed in accordance with the plaintiff’s fourth request, as follows: “If you find that Mr. Cath-cart withdrew or waived the right to rejeet any and all bids mentioned in his letter of invitation to bid, and that withdrawal or waiver took place before plaintiff’s bid was actually submitted, and that upon the submission of the bids, the bid of the plaintiff Was lowest, and that the plaintiff was ready and able to perform the work, then your verdict should be for the plaintiff in the amount of such damages as you find it sustained.” The authority of Mr. Cathcart to bind the defendant in the matter in suit was an essential element of the plaintiff’s case. There was no evidence to show that the alleged agreements were within his authority. There was evidence that he was the manager of the New York Bonding Claim Division of the Casualty Company’s business. Before submitting the ease to the jury, however, it was incumbent upon the plaintiff to prove that he had authority either to waive the reserved right of the defendant to rejeet any or all bids to complete the defaulted contract of the obligor in the surety bond, or to accept a bid to bind the defendant as surety on that bond. While his title as manager of the Casualty Company’s Bonding Claim Division would, on its face, appear to give him authority to represent the defendant in connection with transactions concerning claims against its principal, based upon bonds on which it was surety, the authority to bind it by altering the terms of the invitation for bids, or by the awarding of contracts with outsiders, after breach of contract by its principal, is, in our view, entirely beyond the scope of authority in him indicated by the title of Manager of the defendant’s Bonding Claim Division. He might well, under that title, be invested with authority to issue surety bonds or to negotiate concerning claims upon bonds and determine whether the obligor, for which his company was surety, was in default. While he might be held to have authority to bind the Casualty Company in matters relating directly to its obligations upon its surety bonds, the matter at issue here was one which is not plainly nor by reasonable implication included within the scope of authority indicated by his title. We conclude, therefore, that the court was in error, first, in refusing the defendant’s motion for a nonsuit; and, second, in charging the jury as set out in the plaintiff’s fourth request upon the assumption, without proof, that Mr. Catheart had authority to waive the right to reject bids or to enter into a contract for the Casualty Company with the plaintiff. The decision of this case on the ground stated makes discussion of other questions raised unnecessary. The judgment is reversed with venire de novo. 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_r_bus

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. BAILY et al. v. BALLANCE. No. 4803. Circuit Court of Appeals, Fourth Circuit Oct. 13, 1941. 1 J. Randolph Davis and William M. Phipps, both of Norfolk, Va., for appellants. Sidney Sacks and Albert S. Lewis, both of Norfolk, Va., for appellee. Before PARKER, SOPER, and NORTHCOTT, Circuit Judges. PER CURIAM. This is an appeal from an order granting a discharge in bankruptcy, which was opposed on the ground that the bankrupt had failed “to keep or preserve books of account or records from which his financial condition and business transactions might be ascertained”. Bankrupt was a traveling salesman who kept no books or records. He had a bank account in which he made deposits and against which he drew checks, but he did not preserve his bank statements or cancelled checks after he had examined them. The finding of the Referee in Bankruptcy approved by the District Judge was that bankrupt was not engaged in business for himself but was working for another upon commissions paid him monthly; that such bank account as he carried reflected only his personal expenses; and that his failure to keep or preserve books of account or records was justified in view of the nature and character of his employment. We see no reason to disturb the action of the court below based upon the findings and recommendations of the referee. The provision of the Bankruptcy Act is that the court shall grant the discharge unless satisfied that “the bankrupt has * * * (2) destroyed, mutilated, falsified, concealed, or failed to keep or preserve books of account or records, from which his financial condition and business transactions might be ascertained, unless the court deems such acts or failure to have been justified under all the circumstances of the case”. 11 U.S.C.A. § 32 sub. c(2). Whether such failure is so justified is thus left to the determination of the court in the exercise of a sound discretion (Huffman v. Tevis, 9 Cir., 82 F.2d 940; Rosenberg v. Bloom, 9 Cir., 99 F.2d 249); and there is .nothing in the record before us to indicate that such discretion has been in any way abused in this case. On the contrary, it is clear that failure to keep or preserve records is properly held to be justified when the nature of the bankrupt’s occupation is such that the keeping or preserving of records is not required by it. Remington on Bankruptcy, 5th Ed., vol. 7, §§ 3304-6; In re Weismann, D.C., 1 F.Supp. 723; In re Earl, 8 Cir., 45 F.2d 492; In re Neiderheiser, 8 Cir., 45 F.2d 489, 490. As was well said by the late Judge Kenyon in the case last cited, which likewise dealt with the discharge in bankruptcy of a traveling salesman: “If the occupation or business of the bankrupt were such that ordinarily no books of account would be kept, or if the court under all the circumstances deems the failure to keep such books justified, then the failure so to do would not be sufficient to bar discharge. If the bankrupt were engaged in no business and was a mere employee not in the habit of keeping books or records of account, surely the failure so to do would be no bar to discharge. Such appears to be the situation here. Appellant was a traveling man on a small salary, who had not been accustomed to keeping books, had no particular need for so doing, and testified he never did keep books. Under these circumstances we think subdivision 2 above set out would not be applicable. Bankrupt testified he did not have his checks or records of deposit; that he had returned his bank book to the bank. His testimony on this subject is rather unsatisfactory, but we think the evidence is not sufficient to show that he was under any compulsion to keep any books or that he intentionally destroyed or concealed any books or records from which his financial condition might be ascertained.” The order appealed from will accordingly be affirmed. The motion to dismiss the appeal will be denied on authority of Wayne United Gas Co. v. Owens-Illinois Glass Co., 300 U.S. 131, 57 S.Ct. 382, 81 L.Ed. 557. Affirmed. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:

songer_appel2_1_2

D

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed 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". The AMERICAN PETROLEUM INSTITUTE et al., Petitioners, The Manufacturing Chemists Association and the Chemical Specialties Manufacturers Association, Intervenors, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION et al., Respondents, Industrial Union Department, AFL-CIO, Intervenor. Nos. 78-1253, 78-1257, 78-1486, 78-1676, 78-1677, 78-1707 and 78-1745. United States Court of Appeals, Fifth Circuit. Oct. 5, 1978. Liskow & Lewis, Gene W. Lafitte, New Orleans, La., Kirkland, Ellis & Rowe, Edward W. Warren, Robert F. Van Voorhees, Arthur F. Sampson, III, Washington, D. C., for petitioners. Andrew T. A. MacDonald, Washington, D. C., for Manufacturing Chemists Assoc. Neil J. King, Washington, D. C., for American Iron & Steel Inst. Robert L. Ackerly, Marilyn L. O’Connell, Washington, D. C., for Chemical Specialties Manufacturers Assoc. Carin A. Clauss, Sol. of Labor, Nancy L. Southard, Allen H. Feldman, U. S. Dept. of Labor, William S. McLaughlin, Executive Secy., OSHRC, Washington, D. C., for intervenors. Gene W. Lafitte, New Orleans, La., Edward W. Warren, Robert F. Van Voorhees, Arthur F. Sampson, III, Washington, D. C., for American Petroleum Institute, et al. Robert P. Stranahan, Jr., Washington, D. C., for American Iron & Steel Institute, etc., et al. Robert R. Bonczek, John F. Dickey, Wilmington, Del., for E. I. duPont de Nemours & Co. Harold B. Scoggins, Jr., Gen. Counsel, Independent Petroleum Assoc. of America, Washington, D. C., for Independent Petroleum Institute, et al. Charles F. Lettow, Lee C. Buchheit, Price O. Gielen, Washington, D. C., for Rubber Manufacturers Assoc., Inc., et al., and Armstrong Rubber Co., and Uniroyal, Inc. John H. Pickering, Andrew T. A. MacDonald, Neil J. King, Washington, D. C., for Manufacturing Chemists Assoc., American Iron & Steel Institute, et al. Robert L. Ackerly, Marilyn L. O’Connell, Washington, D. C., for Chemical Specialties Manufacturers Assoc. Carin A. Clauss, Nancy L. Southard, Benjamin W. Mintz, Assoc. Sol., Sol. of Labor, Dept. of Labor, Washington, D. C., for Department of Labor. William S. McLaughlin, Executive Secretary, OSHRC, Washington, D. C., for Occupational Safety and Health Adm. George D. Palmer, III, Associate Regional Solicitor, Dept. of Labor, Birmingham, Ala., Ronald M. Gaswirth, Assoc. Regional Sol., Dept. of Labor, Dallas, Tex., Eula Bingham, Asst. Sec. of Labor, OSHRC, Dept. of Labor, Washington, D. C., for Dept. of Labor. F. Ray Marshall, Secretary of Labor, U. S. Dept. of Labor, Washington, D. C., for Dept. of Labor. Griffin B. Bell, Atty. Gen., Dept. of Justice, Washington, D. C., for Dept. of Justice. Jeremiah Collins, George H. Cohen, Washington, D. C., for Industrial Union Dept. AFL-CIO. Before COLEMAN, CLARK, and TJO-FLAT, Circuit Judges. CHARLES CLARK, Circuit Judge: This case presents consolidated petitions for review of a new health standard limiting occupational exposure to benzene promulgated by the Occupational Safety and Health Administration of the Department of Labor (OSHA), pursuant to the Occupational Safety and Health Act, 29 U.S.C.A. § 651 et seq. (1975) (the Act). The basis for the standard is OSHA’s determination that benzene is a carcinogen for which there is no known safe level of exposure. Briefly, the standard requires employers to assure that no employee is exposed to an airborne concentration of benzene in excess of one part benzene per million parts of air (1 ppm) averaged over an eight-hour day; it requires employers to assure that no employee is exposed to dermal contact with liquid benzene; and it requires employers to assure that caution labels are affixed to all containers of products containing benzene and that the labels remain affixed when the product leaves the employer’s workplace. In addition, the standard imposes numerous compliance requirements for “each place of employment where ben-zené is produced, reacted, released, packaged, repackaged, stored, transported, handled, or used,” with certain exceptions. These requirements include initial and continual exposure monitoring, engineering and work practice controls to reduce and maintain exposure below the permissible level, respiratory protection to prevent excessive exposure in limited situations, protective clothing and equipment to prevent dermal contact with liquid benzene, initial and continual medical surveillance, employee training programs, and retention of records regarding exposure monitoring and medical surveillance. The petitioning producers and users of benzene and benzene-containing products principally attack the reduction of the permissible exposure limit to 1 ppm, the prohibition of dermal contact with liquids containing benzene, and the labeling requirements for such liquids. The petitioners also attack several of the ancillary provisions of the standard, including its broad scope, the monitoring and medical surveillance' requirements, and the specification of mandatory engineering and work practice controls. I. The Act authorizes the Secretary of Labor to promulgate occupational safety and health standards. 29 U.S.C.A. § 655. An “occupational safety and health standard” is defined as “a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment” 29 U.S.C.A. § 652(8). In'promulgating standards dealing with toxic materials, such as benzene, the Secretary is required to set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity evpn if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws. Whenever practicable, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired. 29 U.S.C.A. § 655(b)(5). When necessary or appropriate, standards may prescribe labels or other forms of warning, protective equipment, control or technological procedures, exposure monitoring, and medical examinations. 29 U.S.C.A. § 655(b)(7). Judicial review of occupational safety and health standards is authorized by 29 U.S.C.A. § 655(f), and on review “[t]he determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.” Several courts, including this one, have pointed out the problems involved in attempting to apply the traditional substantial evidence test in assessing OSHA standards resulting from informal rulemaking. E. g., Associated Industries of New York State, Inc. v. United States Department of Labor, 487 F.2d 342, 347-50 (2d Cir. 1973); Florida Peach Growers Association, Inc. v. United States Department of Labor, 489 F.2d 120, 127-29 (5th Cir. 1974); Industrial Union Department, AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 336-340, 499 F.2d 467, 472-76 (1974); Synthetic Organic Chemical Manufacturers Association v. Brennan, 503 F.2d 1155, 1158-60 (3d Cir. 1974). The problem centers not on how to apply the test to factual findings subject to evidentiary development, but rather on how to review legislative-like policy judgments. With respect to the former, the substantial evidence standard provided in the statute clearly is applicable. See, e. g., Industrial Union Department, AFL-CIO v. Hodgson, supra, 499 F.2d at 474; American Iron & Steel Institute, et al. v. OSHA, 577 F.2d 825, No. 76-2358 et al. (3d Cir., filed March 28, 1978). Policy choices, though not so susceptible to verification or refutation by the record, must be scrutinized nevertheless. See Associated Industries of New York, Inc. v. United States Department of Labor, supra, 487 F.2d at 348. Although the courts have differed in their articulation of the standard of review of these policy judgments, they have required the Secretary’s action to be consistent with the statutory language and purpose. Synthetic Organic Chemical Manufacturers Association v. Brennan, supra, 503 F.2d at 1159. As this court stated in assessing an emergency temporary standard in Florida Peach Growers, “it seems clear that even with the required substantial evidence test, our review basically must determine whether the Secretary carried out his essentially legislative task in a manner reasonable under the state of the record before him.” 489 F.2d at 129. This includes, of course, a review of whether the Secretary exercised his decisionmaking power within the limits imposed by Congress. II. Benzene is a ubiquitous hydrocarbon compound (CeHe) that is manufactured for a wide variety of industrial uses. The petrochemical and petroleum refining industries are responsible for 94 percent of the total domestic production of benzene, and the steel industry produces the remaining 6 percent primarily as a by-product of the coking process. The primary use of benzene is as a feedstock in the manufacture of other organic chemicals; it is also used in the manufacture of detergents, pesticides, solvents, and paint, and as a solvent and reactant in chemical laboratories. Industries currently using benzene include the chemical, printing, lithograph, rubber cements, rubber fabricating, paint, varnish, stain removers, adhesives, and petroleum industries. Among the products that contain benzene are motor fuels such as gasoline, which contain up to 2 percent benzene. Benzene has been recognized since 1900 as a toxic substance capable of producing acute and chronic nonmalignant effects in humans. When benzene vapors are inhaled, the benzene diffuses rapidly through the lungs and is quickly absorbed into the blood. Acute circulatory failure resulting in death within minutes often accompanies exposure to benzene concentrations as high as 20,000 ppm. Other acute effects of exposure to milder, though still high (250-500 ppm), concentrations of benzene include vertigo, nervous excitation, headache, nausea, and breathlessness. When exposure is stopped, rapid recovery from these symptoms usually occurs. The most common nonmalignant effects of chronic exposure to low benzene concentration levels are a non-functioning bone marrow and deficiencies in the formed elements of the blood. The degree of severity of such disorders ranges from mild and transient episodes to severe and fatal effects. Chromosomal aberrations have also been associated with chronic benzene exposure, and dermatitis or other dermal infections can be caused by direct bodily contact with liquid benzene. As a result of its toxicity, benzene’s history has been one of regulation. In 1946, the American Conference of Governmental Industrial Hygienists recommended a threshold limit value for benzene exposure of 100 ppm. This value was reduced to 50 ppm in 1947, to 35 ppm in 1948, to 25 ppm in 1963, and to 10 ppm in 1974. The American National Standards Institute adopted a threshold limit value of 10 ppm in 1969, which OSHA adopted in 1971 without rule-making under the authority of 29 U.S.C.A. § 655(a). This standard, codified at 29 C.F.R. § 1910.1000 Table Z-2 (1977) and still in effect, was based on the nonmalignant toxic effects of benzene exposure and not on any possible leukemia hazard. Widely scattered through the benzene literature are studies suggesting a link between benzene exposure and leukemia, a usually fatal cancer of the blood-forming organs. During the 1970’s several additional studies reported a statistically significant increased risk of leukemia among workers occupationally exposed to high levels of benzene and concluded benzene was a leuk-emogen. As a result of this new evidence, OSHA began procedures which culminated with the present proposal, among other things, to reduce the permissible exposure level from 10 ppm to 1 ppm. In January 1977 OSHA issued voluntary Guidelines for Control of Occupational Exposure to Benzene recommending exposure not to exceed an eight-hour time-weighted average of 1 ppm. An Emergency Temporary Standard for Occupational Exposure to Benzene also providing for a reduction in the permissible exposure limit to 1 ppm was issued in May 1977, but this standard never went into effect because of judicial challenges. The proposed permanent benzene standard, which was based on OSHA’s determination that the available scientific evidence established that employee .exposure to benzene presents a leukemia hazard and that exposure therefore should be limited to the lowest feasible level, was published on May 27,1977. This proposal provided for a reduction in the permissible exposure limit from 10 ppm to 1 ppm and established requirements relating to dermal and eye contact, exposure monitoring, medical surveillance, methods of compliance, labeling, and recordkeeping. Public hearings were held July 19 through August 10, 1977, at which 95 witnesses testified. In addition, numerous exhibits and documents were submitted to OSHA as part of the rulemak-ing record. The resulting permanent benzene standard was promulgated on February 3 and published on February 10, 1978, with a March 13, 1978 effective date. III. The American Petroleum Institute on behalf of itself and member companies filed petitions for review of the standard in this court on February 2 and February 3, 1978. The American Iron and Steel Institute, the Independent Petroleum Association of America, the Manufacturing Chemists Association, the Rubber Manufacturers Association, the Armstrong Rubber Company and Uniroyal, Inc., E. I. Du Pont de Nem-ours and Company, and the Chemical Specialties Manufacturers Association subsequently either intervened on behalf of the American Petroleum Institute or filed original petitions for review in other circuits that were transferred to this circuit and consolidated with the American Petroleum Institute case. In addition, the Industrial Union Department, AFL-CIO, intervened on behalf of OSHA in support of the standard. The petitioners filed motions for a stay of the standard pending review on March 10, 1978, and on March 13 a judge of this court issued a temporary stay of the standard pending a hearing before a three-judge panel. The issues concerning the stay were fully briefed by the parties on an expedited basis, and after hearing oral argument a panel of the court on April 18,1978, ordered a stay of the standard to be continued pending disposition of the petitions for review. The principal argument of the petitioning producers of benzene and benzene-containing products is that substantial evidence and the best available evidence do not show that the reduction of the permissible exposure limit from 10 ppm to 1 ppm is reasonably necessary or appropriate to provide safe or healthful employment and places of employment. These petitioners also attack several of the ancillary provisions of the standard, including its broad scope, the monitoring and medical surveillance requirements, and the specification of mandatory primary means of compliance, as not being supported by substantial evidence that they are reasonably necessary or appropriate to provide safe or healthful employment. The attack of the petitioning users of benzene and benzene-containing products is two-fold: (i) They contend that substantial evidence and the best available evidence do not show that the dermal contact prohibition is reasonably necessary or appropriate to provide safe or healthful employment, and that the dermal contact prohibition is not feasible; and (ii) they contend that substantial evidence does not show the labeling requirement to be reasonably necessary or appropriate to provide safe or healthful employment, that the labeling requirement is not feasible, and that the labeling requirement is beyond OSHA’s jurisdiction. OSHA, in addition to arguing that substantial evidence, the best available evidence, feasibility considerations, and its statutory mandate to protect workers justify the standard in its entirety, contends that Congress imposed on it no substantive requirement to promulgate only standards that are reasonably necessary or appropriate to provide safe or healthful employment and places of employment. On June 21, 1978, the day before oral argument, OSHA promulgated an amended standard to exempt from the scope of the benzene standard work operations where the only exposure to benzene is from liquid mixtures containing 0.5 percent (0.1 percent after June 28, 1981) or less of benzene by volume, and to exempt from the labeling requirements liquid mixtures containing 5.0 percent or less benzene by volume which were packaged before June 27, 1978. 43 Fed.Reg. 27,971 (1978). Although the proposed emergency temporary standard and the proposed permanent standard had exempted work operations where exposure to benzene resulted only from liquid mixtures containing 1 percent or less of benzene by volume, the permanent standard that was promulgated contained no such exemption. As a result, the permanent standard prohibited all dermal contact with liquids containing any amount of benzene and it imposed the labeling requirements on all such liquids. Several industry groups petitioned OSHA for a stay of the dermal contact prohibition and labeling requirements as they applied to liquids containing small amounts of benzene. OSHA subsequently granted a stay as to work operations where the sole exposure to benzene was from mixtures containing 0.1 percent or less of benzene and instituted a new rulemaking proceeding which resulted in the June 21, 1978 amendment. The court called for supplemental briefing to address the effect of this amendment on the issues already briefed and argued. This briefing has been completed, and it appears that the major effect of the amendment is on the arguments regarding the feasibility of the dermal contact and labeling provisions. Since the considerations associated with the feasibility of those provisions have been significantly changed by the amendments, we do not address the merits of the feasibility arguments in this opinion. IV. OSHA justifies the reduction of the permissible exposure limit for benzene from 10 ppm to 1 ppm by coupling two factual findings, which it contends are supported by substantial evidence in the record, with a regulatory policy which OSHA contends is required by its mandate to protect workers. The factual findings, are that benzene causes leukemia and that there presently exists no known safe level for benzene exposure. The regulatory policy is to limit employee exposure to carcinogens to the lowest feasible level. The producer petitioners, in addition to attacking the factual finding that no known safe level for benzene exposure exists, contend that OSHA has failed to meet a burden which the Act imposes of determining that the reduction of the permissible exposure limit from 10 ppm to 1 ppm is “reasonably necessary” to provide a safe workplace. In support of the latter contention, these petitioners point to this circuit’s recent decision in Aqua Slide ‘N’ Dive Corp. v. Consumer Product Safety Commission, 569 F.2d 831 (5th Cir. 1978), and assert that OSHA failed to assess benefits expected to be achieved by the standard in light of the expected costs of compliance. The petitioners argue that by defining an “occupational safety and health standard” as one requiring conditions “reasonably necessary” to provide safe or healthful places of employment, 29 U.S.C.A. § 652(8), Congress recognized that safety and health resources are not unlimited and required OSHA somewhere in its decisionmaking process to (1) attempt to determine the extent to which its standards will benefit workers, and (2) decide whether the projected benefits justify the costs of compliance with the standard. Only if all standards are subjected to such assessment, argue the petitioners, can OSHA assure maximum benefit from the finite amount industry can expend on safety and health and thus carry out Congress’ overriding policy “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U.S.C.A. § 651(b). Since OSHA has not made a valid determination that reducing the permissible exposure level of benzene from 10 ppm to 1 ppm is reasonably necessary to protect workers from a risk of leukemia, the producers ask us to set that part of the standard aside. OSHA denies that the “reasonably necessary” language imposes any substantive obligation on it in promulgating standards. OSHA would distinguish Aqua Slide, which dealt with the Consumer Product Safety Act, on the basis that the “reasonably necessary” language in that Act appeared as a part of the sections which dealt with the agency’s process of setting standards, 15 U.S.C.A. §§ 2056(a), 2058(c)(2)(A), whereas the “reasonably necessary” counterpart in the act it administers appears only in the section which defines the type of standard it may promulgate. In authorizing the Consumer Product Safety Commission to promulgate safety standards, Congress provided that “[a]ny requirement of such a standard shall be reasonably necessary to prevent or reduce an unreasonable risk of injury associated with such product.” 15 U.S.C.A. § 2056(a). It also required the Consumer Product Safety Commission to make a specific finding that its rules were “reasonably necessary to eliminate or reduce an unreasonable risk of injury.” 15 U.S.C.A. § 2058(c)(2)(A). Rather than following this format, the Occupational Safety and Health Act defines the occupational safety and health standard it authorizes as one “which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 U.S.C.A. § 652(8). We decline to construe the precisely similar requirements of these two Acts differently or to read words out of the OSHA legislation. The Act imposes on OSHA the obligation to enact only standards that are reasonably necessary or appropriate to provide safe or healthful workplaces. If a standard does not fit in this definition, it is not one that OSHA is authorized to enact. OSHA next argues that even if the conditions required by occupational safety and health standards must be reasonably necessary to provide safe or healthful places of employment, the Act still imposes on OSHA no obligation to undertake a cost-benefit analysis with respect to the standards it promulgates. OSHA argues that 29 U.S.C.A. § 655(b)(5) defines when conditions imposed by a standard dealing with toxic materials are reasonably necessary. It urges that the emphasis of that section on making of a standard “which most adequately assures . . . that no employee will suffer material impairment of health . [from] regular exposure . for the period of his working life,” overcomes any requirement to make a cost-benefit analysis. Nevertheless, OSHA contends that it did undertake economic analyses of both costs and benefits associated with the standard as required by Aqua Slide, and that after assessing those analyses it promulgated the standard. Although 29 U.S.C.A. § 655(b)(5) requires the goal of attaining the highest degree of health and safety protection for the employee, it does not give OSHA the unbridled discretion to adopt standards designed to create absolutely risk-free workplaces regardless of cost. To the contrary, that section requires standards to be feasible, and it contains a number of pragmatic limitations in the form of specific kinds of information OSHA must consider in enacting standards dealing with toxic materials. Those include “the best available evidence,” “research, demonstrations, experiments, and such other information as may be appropriate,” “the latest available scientific data in the field,” and “experience gained under this and other health and safety laws.” Moreover, in standards dealing with toxic materials, just as with all other occupational safety and health standards, the conditions and other requirements imposed by the standard must be “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 U.S.C.A. § 652(8). Since the purpose of the Act to protect workers from dangerous conditions of employment is parallel to the purpose of the Consumer Product Safety Act to protect consumers from dangerous products, we must be guided by 4qua Slide in determining whether OSHA has met its burden of showing that the benzene standard is reasonably necessary to protect workers from a leukemia hazard. There we said: In evaluating the “reasonable necessity” for a standard, the Commission has a duty to take a hard look, not only at the nature and severity of the risk, but also at the potential the standard has for reducing the severity or frequency of the injury, and the effect the standard would have oh the utility, cost or availability of the product. 569 F.2d at 844; see also D. D. Bean & Sons v. Consumer Product Safety Commission, 574 F.2d 643 (1st Cir. 1978). Before it regulates, the agency must show that a hazard' exists and that its regulation will reduce the risk from the hazard, for “no [occupational safety and health] standard would be expected to impose added costs or inconvenience . . . unless there is reasonable assurance that the frequency or severity of injuries or illnesses will be reduced.” 569 F.2d at 839. More importantly for today’s case, Aqua Slide also requires the agency to assess the expected benefits in light of the burdens to be imposed by the standard. Although the agency does not have to conduct an elaborate cost-benefit analysis, 569 F.2d at 840, it does have to determine whether the benefits expected from the standard bear a reasonable relationship to the costs imposed by the standard. 569 F.2d at 842. The only way to tell whether the relationship between the benefits and costs of the benzene standard is reasonable is to estimate the extent of'the expected benefits and costs. See 569 F.2d at 843. OSHA did this with respect to costs by engaging a consulting firm to assess the expected compliance costs and economic feasibility of the proposed standard. 43 Fed.Reg. 5934-39. Based on this study and other evidence, OSHA estimated compliance costs for all affected industries to be $187-205 million first year operating costs, $266 million engineering control costs, and $34 million recurring annual costs. OSHA determined these costs to be feasible since they would not threaten the financial welfare of the affected firms or the general economy. However, OSHA disclaimed any obligation to balance these costs against expected benefits. 43 Fed.Reg. 5940-41. Rather than attempting to measure the extent to which the leukemia hazard of benzene exposure would be reduced by lowering the permissible exposure limit from 10 ppm to 1 ppm, OSHA merely assumed that benefits from the reduction “may be appreciable.” It based this assumption on a finding that benzene was unsafe at any level and its conclusion that exposures to lower levels of toxic materials would be safer than exposure to higher levels. OSHA’s fail-back position attempts to justify its standard as being reasonably necessary within the meaning of Aqua Slide. It contends the standard promises appreciable benefits at a cost which industry can absorb. This justification is deficient in one crucial way: substantial evidence does not support OSHA’s conclusion that benefits are likely to be appreciable. Without an estimate of benefits supported by substantial evidence, OSHA is unable to justify a finding that the benefits to be realized from the standard bear a reasonable relationship to its one-half billion dollar price tag. OSHA’s assumption that the standard is likely to result in benefits is- not unsupported. The divided opinion in the scientific community over the existence or not of safe threshold levels of exposure to carcinogens provides substantial evidence which would support the finding that exposure to benzene at the present level of 10 ppm poses some leukemia risk. The general agreement in the scientific community that exposure to carcinogens at low levels is safer than exposure at higher levels permits the further factual deduction that reducing the permissible exposure limit from 10 ppm to 1 ppm will result in some benefit. This finding and deduction, however, does not yield the conclusion that measurable benefits will result, and OSHA is unable to point to any studies or projections supporting such a finding. As we noted in Aqua Slide, mere rationality is not equivalent to substantial evidence that conditions required by standards are reasonably necessary. 569 F.2d at 841. The lack of substantial evidence of discernable benefits is highlighted when one considers that OSHA is unable to point to any empirical evidence documenting a leukemia risk at 10 ppm even though that has been the permissible exposure limit since 1971. OSHA’s assertion that benefits from reducing the permissible exposure limit from 10 ppm to 1 ppm are likely to be appreciable, an assumption based only on inferences drawn from studies involving much higher exposure levels rather than on studies involving these levels or sound statistical projections from the high-level studies, does not satisfy the reasonably necessary requirement limiting OSHA’s action. Aqua Slide requires OSHA to estimate the extent of expected benefits in order to determine whether those benefits bear a reasonable relationship to the standard’s demonstrably high costs. We are not persuaded by OSHA’s argument that this standard should be upheld since the lack of knowledge concerning the effects of exposure to benzene at low levels makes an estimate of benefits expected from reducing the permissible exposure level impossible. The statute requires all conditions imposed by a standard to be reasonably necessary to provide safe or healthful employment, and it requires decisions to be based on “the best available evidence,” “research, demonstrations, experiments, and such other information as may be appropriate,” “the latest scientific data in the field,” and “experience gained under this and other health and safety laws.” By requiring the consideration of such kinds of /information, Congress provided that OSHA ¡regulate on the basis of knowledge rather I than on the unknown. But see Society of Plastics Industry, Inc. v. OSHA, 509 F.2d 1801, 1308 (2d Cir. 1975). Until OSHA can provide substantial evidence that the benefits to be achieved by reducing the permissible exposure limit from 10 ppm to 1 ppm bear a reasonable relationship to the costs imposed by the reduction, it cannot show that the standard is reasonably necessary to provide safe or healthful workplaces. This does not mean that OSHA must wait until deaths occur as a result of exposure at levels below 10 ppm before it may validly promulgate a standard reducing the permissible exposure limit. See Florida Peach Growers Association, Inc. v. United States Department of Labor, 489 F.2d 120, 132 (5th Cir. 1974). Nevertheless, OSHA must have some factual basis for an estimate of expected benefits before it can determine that a one-half billion dollar standard is reasonably necessary. For example, when studies of the effects of human exposure to benzene at higher concentration levels in the past are sufficient to enable a dose-response curve to be charted that can reasonably be projected to the lower exposure levels, or when studies of the effects of animal exposure to benzene are sufficient to make projections of the risks involved with exposure at low levels, then OSHA will be able to make rough but educated estimates of the extent of benefits expected from reducing the permissible exposure level from 10 ppm to 1 ppm. Until such estimates are possible, OSHA does not have sufficient information to determine that a standard such as the one under review which it can only say might protect some worker from a leukemia risk is reasonably necessary. We will not attempt to reconcile our decision with the cases from other circuits which uphold other standards regulating exposure to carcinogens. See Industrial Union Department, AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 499 F.2d 467 (1974) (asbestos dust standard); Society of Plastics Industry, Inc. v. OSHA, 509 F.2d 1301 (2d Cir. 1975) (vinyl chloride standard); American Iron & Steel Institute et al. v. OSHA, 577 F.2d 825, No. 76-2358 et al. (3d Cir., filed March 28, 1978) (coke oven emission standard). Those opinions did not address what Congress meant by requiring the conditions imposed by standards to be reasonably necessary to provide safe or healthful places of employment. In this circuit, under our Agua Slide decision, substantial evidence must support a finding that those conditions are reasonably necessary, a showing that OSHA has not made. In addition, those cases were decided on their own records. Without critical analysis of what was established in those proceedings, we hold in today’s case that Congress intended for OSHA to regulate on the basis of more knowledge and fewer assumptions than this record reflects. OSHA’s failure to provide an estimate of expected benefits for reducing the permissi-f ble exposure limit, supported by substantial '■ evidence, makes it impossible to assess the reasonableness of the relationship between expected costs and benefits. This failure means that the required support is lacking to show reasonable necessity for the standard promulgated. Consequently, the reduction of the permissible exposure limit from 10 ppm to 1 ppm and all other parts of the standard geared to the 1 ppm level must be set aside. V. OSHA’s prohibition of dermal contact with benzene is based on “OSHA’s policy that, in dealing with a carcinogen, all potential routes of exposure (i. e., inhalation, ingestion, and skin absorption) be limited to the extent feasible.” 43 Fed.Reg. 5948. OSHA, while acknowledging that the record evidence on the effect of benzene on the skin is “extremely limited” and that the few studies in the area “are not definitive as to the extent of benzene that is absorbed through the intact skin or as to the comparative rate of absorption through damaged skin,” 43 Fed.Reg. 5948-49, nevertheless decided to prohibit dermal contact with liquids containing benzene. In arriving at this decision OSHA relied on animal studies and one human study suggesting that benzene is absorbed through intact skin, on the assumption that benzene would more readily be absorbed through damaged skin than undamaged skin, and on the belief that substances containing benzene are readily absorbed through the skin and act as vehicles for absorption of benzene. OSHA now seeks in part to justify this prohibition as an adjunct to the permissible exposure limit for airborne concentrations of benzene and because of a concern for dermatitis. To the extent that the dermal contact prohibition is an adjunct of the permissible exposure limit, it would have to be set aside along with the permissible exposure limit. The concern for dermatitis, on the other hand, appears to be a post hoc rationalization for the dermal contact prohibition since it was not a significant part of OSHA’s reasoning process that led to this provision. The requirements of this standard were based on the possible leukemia hazard associated with exposure to benzene, 43 Fed.Reg. 5918, 5948, and our review must be of the reasoning process of the agency at the time it promulgated the standard based on the record before it. Dry Color Manufacturers’ Association, Inc. v. Department of Labor, 486 F.2d 98, 104 n.8 (3d Cir. 1973). The user petitioners contend that substantial evidence and the best available evidence do not support a finding that the dermal contact provisions are reasonably necessary to provide safe or healthful employment, and in addition they contend that the dermal contact prohibition is not feasible since it is impossible for certain industries to operate without some Question: This question concerns the second 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_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. CITIZENS FOR AN ORDERLY ENERGY POLICY, INC., Vance L. Sailor, Eena-Mai Franz, John J. Foley and Dorothy V. Sheehan, Plaintiffs-Appellants, Long Island Lighting Company and the Shoreham-Wading River Central School District, Intervenors-Plaintiffs-Appellants, v. The COUNTY OF SUFFOLK and Peter F. Cohalen, Defendants-Appellees. Nos. 570, 571, 573, Docket 85-7321, 85-7323, 85-7325. United States Court of Appeals, Second Circuit. Argued Dec. 18, 1986. Decided March 9, 1987. Lucinda Low Swartz, Kensington, Md. (Ronald A. Zumbrun, Pacific Legal Foundation, Sacramento, Cal., of counsel), for plaintiff-appellant Citizens for an Orderly Energy Policy, Inc. K. Dennis Sisk, New York City (Adeeb Fadil, Hunton & Williams, New York City, W. Taylor Reveley, III, Kathy E.B. McCleskey, Hunton & Williams, Richmond, Va., Anthony F. Earley, Jr., Long Island Lighting Co., Hicksville, N.Y., of counsel), for Intervenor-plaintiff-appellant Long Island Lighting Co. J. Scott Greer, Poughkeepsie, N.Y. (Lou Lewis, Poughkeepsie, N.Y., of counsel), for Intervenor-plaintiff-appellant ShorehamWading River Central School Dist. David A. Brownlee, Pittsburgh, Pa. (Michael J. Lynch, Kenneth M. Argentieri, Kirkpatrick & Lockhart, Pittsburgh, Pa., Herbert H. Brown, Lawrence C. Lanpher, Kirkpatrick & Lockhart, Washington, D.C., Martin B. Ashare, Suffolk County Dept, of Law, Hauppaug, N.Y., of counsel), for defendants-appellees. Before TIMBERS, MESKILL and KEARSE, Circuit Judges. PER CURIAM: This is an appeal from a judgment entered March 21, 1986, in the United States District Court for the Eastern District of New York, Altimari, J., dismissing the claims of plaintiff Citizens for an Orderly Energy Policy (Citizens) and intervenors Long Island Lighting Company (LILCO) and Shoreham-Wading River Central School District (District) under Fed.R. Civ.P. 12(b). Citizens, LILCO and District allege that the County of Suffolk passed certain resolutions which violate and are preempted by the Atomic Energy Act, 42 U.S.C. §§ 2011 et seq. (1982). They also complain that Suffolk’s resolutions violate 42 U.S.C. § 1983 (1982) on statutory, due process and equal protection grounds. We affirm the judgment below substantially for the reasons set forth in the district court’s opinion, 604 F.Supp. 1084 (E.D.N.Y.1985), and write solely to address appellants’ contention that the district court based its decision on the erroneous assumption that LILCO would receive, without difficulty, an operating license from the Nuclear Regulatory Commission. BACKGROUND The events giving rise to the litigation in the district court are set forth in the district court opinion, 604 F.Supp. at 1087-89, and we assume familiarity with them. Less than one month after the district court issued its decision, the Nuclear Regulatory Commission’s licensing board denied LILCO’s application for an operating license on the ground that Suffolk’s refusal to cooperate rendered LILCO’s proposed radiological emergency plan inadequate. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1) LBP-85-31, 22 N.R.C. 410 (August 26, 1985). On appeal, the Commission reversed the licensing board’s decision and remanded, directing the board to assume that, in an actual emergency, Suffolk would act responsibly and would use LILCO’s plan as the best source of information and options for its emergency response. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1) CLI-86-13 (July 24, 1986). The licensing board has not yet issued its final decision on LILCO’s application. DISCUSSION Appellants contend that the district court based its decision on the incorrect perception that Suffolk’s resolutions would not impede LILCO’s application process. As noted above, the Commission’s licensing board initially denied LILCO’s application due to a determination, subsequently reversed by the Commission, that Suffolk’s resolutions prevented LILCO from submitting an adequate emergency plan. Appellants contend that the district court’s alleged misperception of the effect of Suffolk s resolutions on the licensing process somehow requires reversal. Appellants misread the district court’s opinion. The court did not base its decision on the assumption that LILCO would receive an operating license. Rather, the district court simply recognized that Suffolk’s resolutions do not prevent LILCO from applying for its license. 604 F.Supp. at 1094, 1097-98. The court further noted that only the licensing board, not Suffolk, could deny LILCO’s application. We find no support for appellants’ contention that the district court based its decision on the assumption that LILCO would receive an operating license. The opinion below requires no further elaboration. Suffolk has not affirmatively prevented LILCO from pursuing its license. Suffolk simply has refused to cooperate. LILCO’s remedies lie in attacking any improper affirmative act Suffolk might take to obstruct LILCO in the application process. The judgment of the district court is affirmed. 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_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). John H. HENNESSY, Jr., as an Individual and d/b/a Business Systems and Service Company, a Proprietorship, Plaintiff-Appellant, v. Otis A. SCHMIDT, Defendant-Appellee. No. 74-2079. United States Court of Appeals, Seventh Circuit. Argued May 23, 1975. Decided Aug. 22, 1975. William M. Freivogel, Michael J. Critelli, Chicago, Ill., for plaintiff-appellant. Lloyd P. Douglas, Edward J. Kelly, Chicago, Ill., for defendant-appellee. Before SWYGERT and SPRECHER, Circuit Judges, and EAST , Senior District Judge. Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation. EAST, Senior District Judge. In the District Court proceedings, the plaintiff John H. Hennessy, Jr., doing business as Business Systems and Service Company (hereinafter Hennessy) sought to recover from the defendant Otis A. Schmidt (hereinafter Schmidt) the sum of $25,000 damages upon an alleged breach of a sales commission contract for obtaining a sale of corporate stock owned by Schmidt. Following a trial without a jury, the District Court found adversely to Hennessy and entered a judgment for Schmidt. Hennessy appeals and we reverse. THE DISTRICT COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW We recite the pertinent parts of the findings of fact for the factual background of the parties and the cause and the conclusions of law to facilitate our course of disposition on appeal: Findings: “3. Schmidt and A1 Ruck (‘Ruck’) [were] the principal owners of the common stock of S & R Industries, Inc. “4. In 1970, for reasons not material to this action and not fully developed at the trial, Schmidt was voted out of operating control and thus sought to sell his interest in S & R Industries. “5. By virtue of letters exchanged on June 22, 24, 26, and July 22, 1970, Schmidt and Hennessy entered an agreement whereby Hennessy would receive a specific commission [of five percent of the purchase price] if he produced a buyer of Schmidt’s stock in S & R Industries at a suitable price. “6. This agreement was not an exclusive arrangement wherein Hennessy would receive compensation no matter who was the proximate cause of the sale. “7. At the time Schmidt and Hennessy made the agreement a lawsuit was pending in the Illinois State court. The parties to the lawsuit [involving the operation of S & R Industries] were Schmidt and Ruck. This suit was initiated in December of 1970. “8. Pursuant to the agreement Hennessy performed a number of services in the form of telephone calls and letters in an attempt to sell Schmidt’s shares of S & R Industries. “9. By the end of January, 1971, no buyer could be found for Schmidt’s stock. From that point on Hennessy directed his attention to negotiating a purchase by Ruck and arranging for financing through Central National Bank. “10. Hennessy performed his services with the approval of Schmidt as demonstrated by Schmidt’s letter to Hennessy on October 8, 1971.” “13. Hennessy did not assist in the preparation of the final papers that made up the settlement agreement and the sale of the shares, nor did he attend the closing. “14. Schmidt’s attorney, Edward Kelly, [Kelly] negotiated with Ruck and the corporation regarding the settlement of the lawsuit by the purchase of Schmidt’s shares.” We find record evidence supporting each of the above specific findings. We do note, however, that the substance of finding 13 is literally correct in that Hennessy did not physically assist (as a scrivener) in the preparation of the final papers that made up the settlement agreement and the sale of the shares and that he did not physically attend the closing session. Also, we note that the literal reading of finding of fact 14 is correct only to the extent of Kelly’s participation in the negotiations for Ruck’s purchase of Schmidt’s shares, and is clearly erroneous to the extent the finding might negate Hennessy’s negotiations for Ruck’s purchase of Schmidt’s shares. The District Court, under the label of findings of fact, further found: “11. Schmidt’s stock was sold to Ruck as a direct result of the settlement reached by Ruck and Schmidt in the lawsuit which was filed in state court. “12. Hennessy never participated in the negotiations nor did he procure the agreement that entered the state court litigation.” We deem those two “findings” to be mere conclusionary results rather than specific facts, and without the effect of an established ultimate fact reached from a consideration of contradictory evidence or different inferences reasonably drawn or inferred. Conclusions: “2. The substantive law of the State of Illinois shall be applied in this ease. “3. In a suit by a broker for a commission, he must normally prove, by a preponderance of the evidence, that he procured a purchaser ready, willing and able to purchase on the seller’s terms. Or, that the sale was the proximate result of the broker’s efforts, or that he was the procuring cause of the sale. Waghorne v. Hogstrom, 11 Ill. App.2d 345, 137 N.E.2d 497 (1956) (an unpublished full opinion); Camp v. Hollis, 332 Ill.App. 60, 74 N.E.2d 31 (1947); Klyczek v. Dubuque Fire and Marine Insurance Company, 325 Ill. App. 696, 60 N.E.2d 648 (1945) (abst.); Murawska v. Boeger, 219 Ill.App. 241 (1920). “4. A broker is not deemed to be the procuring cause merely because he may have influenced the purchase to some extent. Rather, he must be the one who effects the sale or through whose efforts the sale is brought about. Waghorne v. Hogstrom, supra; White v. Sellmyer, 157 Ill.App. 435 (1910); Commercial National Bank v. Hawkins, 35 Ill.App. 463 (1889). “5. In this case there is no doubt that the parties entered into a legally binding contract. However, it is undisputed that it was not of an exclusive nature. Thus, Schmidt was free to negotiate a sale with other parties. Friend v. Charles W. Triggs Co., 147 Ill.App. 427 (1909); Chicago Title and Trust Co. v. Guild, 323 Ill.App. 608, 56 N.E.2d 659 (1944). “6. Although plaintiff contended that he engaged in correspondence of over 30 letters, made in excess of 50 telephone calls, assisted in arranging bank financing, made an analysis of bookkeeping deficiencies, etc., no evidence was presented which conclusively showed the plaintiff’s activities were the proximate cause of the sale. “7. ... In order to be successful on the merit of this claim for a 5% commission, plaintiff had to demonstrate performance of all the conditions. As a condition precedent to the payment of the commission the plaintiff’s efforts had to be the proximate cause of the sale. “8. The defendant was not liable to the plaintiff for services rendered pursuant to the aforementioned agreement. . . ” DISCUSSION At the outset, it is manifest from a reading of the conclusion of law numbered 6 that the District Court ignored the proper and valid rule or test for viewing and weighing Hennessy’s evidence and making findings of fact in accordance with the “preponderance of the evidence” as recited in conclusion of law numbered 3, and erroneously viewed and weighed Hennessy’s evidence and made its finding of fact under the non-applicable stricter rule or test of conclusive proof. The District Court by applying the stricter improper conclusive proof rule or test in this case placed a higher burden of proof upon Hennessy than is lawfully required. See Hurzon v. Schmitz, 262 Ill.App. 337 (1931); also 32A C.J.S. Evidence § 1020 (1964) at 641-43. We are satisfied that the District Court in applying the conclusive proof rule or test foreclosed itself from making further findings upon facts under Hennessy’s evidence which the court may have found to be proven under the preponderance of the evidence rule or test. For example, specific findings of fact of the full extent and effect, if any, in causing or procuring Ruck’s purchase of Schmidt’s stock through Hennessy’s efforts expended “in correspondence of over 30 letters, [making] in excess of 50 telephone calls, assisted in arranging bank financing, [making] an analysis of bookkeeping deficiencies, etc.” These factors were not specifically dealt with and were lumped by the District Court in conclusion of law No. 6. There is among the items of “correspondence” in Hennessy’s efforts to revive negotiations between Ruck and Schmidt Hennessy’s proposed letter to Ruck of Schmidt’s willingness to seriously consider any fair offer for the shares from Ruck (Plaintiff’s Exhibit 13) which was turned over to Kelly and Kelly’s redrafted letter or Schmidt’s willingness to deal addressed and finally transmitted to Ruck (Plaintiff’s Exhibit 14). The letter may well have been the catalyst of the ultimate purchase by Ruck. The Kelly letter (Plaintiff’s Exhibit 14) is on its face a plagiarism of Hennessy’s proposal (Plaintiff’s Exhibit 13); yet it and the followup letters of Hennessy to Ruck were not specifically dealt with in the District Court’s findings. CONCLUSION We conclude that the findings of fact as found by the District Court under the improper rule or test of conclusive proof are tainted and unlawfully made. It follows that without properly determined findings, the conclusions of law, together with the judgment for Ruck predicated thereon, collapse and must be vacated and the case remanded, for reconsideration. In view of the apparent importance the District Court placed upon the lack of Hennessy’s assistance in the preparation of final papers and appearance at the closing session of the sale-purchase of stock transaction, we further conclude that the District Court erred in adopting, under the authorities relied upon, the classical real estate broker’s test of performance in determining the proximate cause or procurement of the sale of Schmidt’s corporate stock to Ruck. Waghorne involved the sale of residential real estate; Camp was concerned with the sale of the Palmer House hotel; Klyczek, a land sale; Murawska, a coal yard; and Commercial Bank, a sale of land. Suffice to say, the role of the real estate broker has traditionally been the guiding hand throughout the transaction, including the preparation, either personal or through legal counsel, execution and delivery of the instruments of transfer, either manually or through escrow. Hennessy’s role in the instant transaction is readily distinguishable from that of the conventional real estate broker. In the first instance, Hennessy’s mission was to find a purchaser of Schmidt’s shares by a sale of all the capital stock of the S & R Industries. The principal stockholders, Schmidt and Ruck, were at irrevocable loggerheads and embroiled in a lawsuit. There was no prospective purchaser in such a picture until Hennessy revived the parties’ interest in Schmidt’s prior offer to sell his shares to Ruck by his proposed letter to Ruck and his subsequent innovative suggestion proposing the use of a common basis for measuring the value of the stock, book value, and the suggestion of the $500,000 purchase price with corporate income tax advantage to Ruck. Interestingly enough, coincidental or procurement by Hennessy, that price became the ultimate sales price. Also there is some evidence in the record by which Hennessy claims to prove that he was excluded by Kelly from attending the final sessions of the closing of the sale-purchase transaction of Schmidt’s shares. Hennessy is entitled to have the evidence in the case weighed and determined under an appropriate standard and test. We are satisfied that a more appropriate test to be applied in the reconsideration of whether Hennessy’s performance was the proximate cause or procurement of the sale of Schmidt’s shares to Ruck is the finder’s or business opportunity broker’s fee test as delineated in Modern Tackle Co. v. Bradley Industries, 11 Ill.App.3d 502, 297 N.E.2d 688 (1st Dist. 1973). See also Diversification Consultants, Inc. v. Candy-Gram, Inc., 130 Ill.App.2d 1029, 264 N.E.2d 788 (1st Dist. 1970); Schaller v. Litton Industries Inc., 307 F.Supp. 126 (E.D.Wis.1969); and Chiagouris v. Continental Trailways, 50 Ill.App.2d 196, 200 N.E. 399 (1st Dist. 1964). Accordingly the District Court’s findings of fact and its conclusions of law, as a whole, together with the judgment based thereon, are each vacated and the cause remanded to the District Court for further proceedings consistent herewith. Judgment vacated and remanded. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:

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. SULLIVAN v. UNITED STATES. No. 8436. Circuit Court of Appeals, Sixth Circuit Jan. 9, 1941. A. E. Funk, of Frankfort, Ky. (J. J. Leary, Earl S. Wilson, and A. E. Funk, all of Frankfort, Ky., on the brief), for appellant. Keith L. Seegmiller, of Washington, D. C. (John T. Metcalf, of Lexington, Ky., and Julius C. Martin, Wilbur C. Pickett, and Samuel Flatow, all of Washington, D. C., on the brief), for appellee. Before HICKS, SIMONS, and HAMILTON, Circuit Judges. HICKS, Circuit Judge. Suit by appellant upon two War Risk Insurance policies. The question is, whether the court erred in sustaining appellee’s motion to dismiss upon the ground that the suit was barred by the statute of limitations. The complaint alleged, that appellant became totally and permanently disabled within the life of the policy, on October 29, 1919. The statute began to run from that date. United States v. Towery, 306 U.S. 324, 331, 59 S.Ct. 522, 83 L.Ed. 678. Appellant had therefore until July 3, 1931, Sec. 19 of the World War Veterans’ Act, 38 U.S.C.A. § 445, to sue. The. complaint alleged that appellant applied for benefits under the policies for total and permanent disability to the Veterans Bureau on March 26, 1931. The act provides “that this limitation is suspended for the period elapsing between the filing in the bureau of the claim sued upon and the denial of said claim by the direc-' tor. * * * ” Appellant therefore had ninety-nine days after the denial of his claim within which to sue. United States v. Green, 6 Cir., 84 F.2d 449. The complaint alleged, that on or about November 11, 1932, appellant was notified by the Veterans Administration that on November 9, 1932, the Insurance Claims Council had refused his claim on the ground that the evidence submitted in connection therewith was insufficient to show that he became permanently and totally disabled for insurance purposes at the time of his discharge or at any time thereafter. In his first amended complaint appellant averred that he had received the following letter from the Director: “Dear Sir: November 11, 1932. “Your claim for payment of insurance on account of permanent and total disability from the date of your discharge from military service has received careful consideration in this office and you are informed that on November 9, 1932, the Insurance Claims Council rendered a decision to the effect that the evidence submitted in connection with your claim is not sufficient to show that you became permanent and total for insurance purposes at the time of your discharge nor at any time subsequent to your discharge. It will, therefore, be impossible for this Administration to make payment of any insurance to you. “If you wish, you may consider this decision as final and in that event the suspension of the statute of limitations as provided in Section 19 of the World War Veterans Act, 1924, as amended, ceases from and after the date this letter reaches your present address. This may be treated as a letter of disagreement if you desire to institute suit in a proper court to recover on your insurance contract on the theory that you did become permanent and total for insurance purposes at a time when you had insurance in force with this Administration. “Your compensation folder will now be decentralized to the Regional Office of this Administration at Louisville, Kentucky. All future correspondence by you in regard to your claim should, therefore, be directed to that office. “Respectfully “(Signed) IT. L. McCoy, “Director of Insurance.” We have italicized portions of this letter. The denial of appellant’s claim by the Council and his notification thereof by the letter of the Director were both clear cut and decisive. The “disagreement” as a prerequisite to suit, existed. The decision of the Council made under the authority and direction of the Director, Sec. 5 of the World War Veterans’ Act, 38 U.S.C.A. § 426, was final and upon receipt of the letter appellant might have appealed to the Director had he exercised this right within sixty days therefrom.' Vet. Adm. Reg. 3204. Had he appealed, the , limitation would have been suspended during the period the claim was pending in the Veterans Administration. Howard v. United States, 6 Cir., 97 F.2d 987; Simmons v. United States, 4 Cir., 110 F.2d 296, 299. But, according to the allegations of the complaint, he made no effort to appeal until May 28, 1935, which was of course too late. Fie had the alternate remedy of suing within ninety-nine days after his receipt of the letter, which he admits was about the date upon which it was written; but he did not commence his action until April 30, 1937, and the bar of the statute had long since fallen. We are not concerned with the recitations of the complaint touching appellant’s efforts to renew his claim after it was barred (Ball v. United States, 6 Cir., 101 F.2d 272, 274; Neely v. United States, 4 Cir., 115 F.2d 448, 452); nor with the effect of the Act of June 29, 1936, Ch. 867, Sec. 404, 49 Stat. 2034, 38 U.S.C.A. § 445d, which provides that in addition to the suspension of the limitation as heretofore indicated, the claimant shall have ninety days from the date of the mailing of the notice of denial within which to sue, because such provision has no application to a barred suit. Dowell v. United States, 5 Cir., 86 F.2d 120, 122. Judgment 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_r_fiduc

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. In the Matter of IRA HAUPT & CO., a Limited Partnership, Bankrupt. KAMERMAN & KAMERMAN, Appellant, v. Charles SELIGSON, as Trustee in Bankruptcy of Ira Haupt & Co., Appellee. No. 599, Docket 34118. United States Court of Appeals, Second Circuit. Submitted March 12, 1970. Decided April 22, 1970. Murray H. Palager, New York City, for appellant. Harvey R. Miller, Weil, Gotshal & Manges, New York City, for appellee. Before SMITH, KAUFMAN and HAYS, Circuit Judges. HAYS, Circuit Judge. This is an appeal from an order of the United States District Court for the Southern District of New York denying appellant’s petition for review of an order of the referee in bankruptcy and affirming that order. The referee’s order granted the application of the trustee of the bankrupt’s estate to recover, as preferential transfers, certain payments made by bankrupt to appellant and denied appellant’s claim under Section 60c of the Bankruptcy Act, 11 U.S. C. § 96(c) (1964) to a set-off for services rendered the bankrupt after receipt of the preferences. We affirm as to the preferential transfers and reverse and remand as to the set-off. The appellant, a firm of attorneys and accountants, rendered services to the bankrupt over a period of years. The payments, amounting to $20,700, which the referee and the district court have held to constitute voidable preferences were reimbursement for those services. The payments were made within the four months preceding the date of the bankruptcy and at the time of receiving the payment appellant knew that Haupt was insolvent. Appellant argues that the decision of the referee, affirmed by the district court, was in error because (1) the payments made to appellant by Haupt were not in satisfaction of antecedent indebtedness, (2) the trustee failed to establish that the payments depleted the bankrupt’s estate and were, therefore, preferential and (3), even if the payments constituted voidable preferences, appellant was entitled under Section 60c of the Bankruptcy Act to a set-off for services rendered after the payments were made. Where there are concurrent findings of fact by the referee and the district court the findings are accepted by this court unless they are clearly erroneous. In re Ira Haupt & Co., 379 F.2d 884, 892 (2d Cir. 1967). In the present ease the record supports the conclusion of the referee and the district court that Haupt’s payments in 1963 and 1964 to appellant amounting to $20,700 were for services rendered as tax advisers during the period from 1959 to 1963. In the case of the first bill rendered (for $14,000) the bill itself states that it is for past services and the following appears on it in the handwriting of a senior partner of appellant firm: “Covering services from 1961 to November 30, 1963 * * *” We reject as wholly unpersuasive appellant’s argument (characterized by the district court as “convoluted”) that “no debt existed until the bill was sent.” It is not credible that there was no understanding between Haupt and appellant that appellant would be reimbursed for its services. It is of no consequence that the exact amount of such reimbursement remained to be fixed at a later period. Haupt raised no question as to the amount, nor does the trustee. Appellant’s second contention, that the payments by Haupt did not result in a depletion of the bankrupt’s estate, is based on the same rationale, i. e., that the payments were not made for an antecedent debt but for a present consideration. This contention obviously fails on the same ground as appellant’s first contention. We conclude that there was no error in the holding of the referee and the district court that Haupt’s payments were made on account of an antecedent indebtedness and resulted in depletion of the estate. After the payments which we have held to constitute voidable preferences were made, appellant performed further services for Haupt for which it received no payment. It is for reimbursement for these services that appellant claims a set-off of $11,600 against the trustee’s recovery on the preferential transfers. Section 60c of the Bankruptcy Act, 11 U.S.C. § 96(c) (1964), on which appellant relies, provides: “If a creditor has been preferred, and afterward in good faith gives the debtor further credit without security of any kind for property which becomes a part of the debtor’s estate, the amount of such new credit remaining unpaid at the time of the adjudication in bankruptcy may be set off against the amount which would otherwise be recoverable from him.” We believe that the services rendered by appellant to Haupt are properly to be included within the meaning of the word “property” as that word is used in Section 60c. See Kass v. Doyle, 275 F.2d 258, 262 (2d Cir. 1960), where this court said: “The trustee also urges that services cannot constitute ‘value’ within the meaning of § 70, sub. d(l). Such a view, in accord with that apparently taken in In the Matter of Autocue Sales & Distributing Corp., D.C.S.D.N.Y.1958, 167 F.Supp. 672, 674, must be premised on the assumption that the statute protects only those transactions which result in an immediate balance sheet increase in the assets of the debtor equal to the consideration paid out by him. We think that this is too circumscribed an interpretation of the statute; in our view it applies equally to transactions involving services. While it is true that the work performed by an attorney or an accountant or any other person rendering services is not directly reflected in the balance sheet in the same way that the purchase of stock in trade or a new machine would be shown in the inventory or fixed assets accounts, it can hardly be doubted that such services may be equally necessary to the debtor and may equally aid in the protection of the assets available for creditors in the event the bankruptcy petition should be approved. Moreover, insofar as the purpose of the section is to permit the bankrupt to carry on his day to day business affairs during the pendency of a petition, no rational distinction can be drawn between the use of services and the purchase of tangible property. One is as likely to be as necessary to the carrying on of the debtor’s affairs as the other. In the present case, representation of the corporation in grievance arbitration with its employees was quite as necessary to its continuing business as the purchase of gasoline to run its buses. * * * ” Moreover we do not consider, as did the district court, that appellant’s services lost their character as property of Haupt’s estate because the work had to be redone. It appears that the work was not effective because Haupt’s employees had made erroneous entries in the books of the organization and had failed to make other necessary entries. Surely, if Haupt had purchased a machine which broke down because of errors made by Haupt’s employees in operating it, the machine, however unproductive it proved in fact to be, would constitute property within the meaning of Section 60c and the amount of credit extended for it would be a proper set-off under that section. We are unable to distinguish appellant’s services here from the machine in our hypothetical case. We hold therefore that appellant is entitled to set off its claim for services against the trustee’s recovery for preferential transfers. However, we are unable on the record before us to fix the amount of the allowable set-off. The district judge stated in his memorandum that time sheets submitted by appellant in support of its set-off claim were “unclear” and that work for previous tax years might be included. Because he believed that appellant was not entitled to any set-off at all it was unnecessary for the district judge to make any definite finding on these latter points. We therefore remand the case to the district court to compute the amount of the set-off allowable under our view of the applicable law, or to remand to the referee to make such computation. . Actually in order to avoid the conclusion that Haupt’s payments were on account of an antecedent indebtedness, appellant would have to argue that no debt ever existed, even after Haupt received appellant’s bill. Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number. 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. ALAMO LAND & CATTLE CO., INC. v. ARIZONA No. 74-125. Argued October 14-15, 1975— Decided February 24, 1976 Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Marshall, Powell, and Rehnquist, JJ., joined. White, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 311. Stevens, J., took no part in the consideration or decision of the case. J. Gordon Cook argued the cause and filed briefs for petitioner. Peter C. Gulatto, Assistant Attorney General of Arizona, argued the cause for respondent. With him on the brief was Bruce E. Babbitt, Attorney General. Mb. Justice Blackmun delivered the opinion of the Court. This case presents an issue of federal condemnation law — as it relates to an outstanding lease of trust lands— that, we are told, affects substantial acreage in our Southwestern and Western States. I Under § 24 of the New Mexico-Arizona Enabling Act, 36 Stat. 572 (1910), specified sections of every township in the then proposed State were granted to Arizona “for the support of common schools.” By § 28 of the same Act, 36 Stat. 674, as amended by the Act of June 5, 1936, c. 517, 49 Stat. 1477, and by the. Act of June 2, 1951, 65 Stat. 51, the lands transferred “shall be by the said State held in trust, to be disposed of in whole or in part only in manner as herein provided and for the several objects specified . . . and . . . the . . . proceeds of any of said lands shall be subject to the same trusts as the lands producing the same.” Arizona, by its Constitution, Art. 10, § 1, accepted the lands so granted and its trusteeship over them. Among the lands constituting the grant to Arizona were two parcels herein referred to as Tract 304 and Tract 305, respectively. On February 8, 1962, Arizona, as lessor, and petitioner Alamo Land and Cattle Company, Inc. (Alamo), as lessee, executed a grazing lease of these tracts for the 10-year period ending February 7, 1972. App. 6-14. By Arizona statute, Ariz. Rev. Stat. Ann. 37-281D (1974), incorporated by general reference into the lease, App. 7, Alamo may not use the lands for any purpose other than grazing. On May 31, 1966, while the two tracts were subject to the grazing lease and were utilized as part of Alamo’s larger operating cattle ranch, the United States filed a complaint in condemnation in the United States District Court for the District of Arizona in connection with the establishment of a flood control dam and reservoir at a site on the Bill Williams River. The tracts in their entirety were among the properties that were the subject of the complaint in condemnation. The District Court duly entered the customary order for delivery of possession. Thereafter, the United States and Arizona and, separately, the United States and Alamo, stipulated that “the full just compensation” payable by the United States “for the taking of said property, together with all improvements thereon and appurtenances thereunto belonging” was $48,220 for Tract 304 and $70,400 for Tract 305, and thus a total of $118,620 for the two. 1 Record 156, 162. At a distribution hearing held to determine the proper allocation of the compensation amounts, the only parties claiming an interest in the awards for the two tracts were respondent Arizona, asserting title through the federal grants to it, and petitioner Alamo, asserting a compensa-ble leasehold interest in the lands and a compensable interest in the improvements thereon. The State conceded that Alamo was entitled to receive the value of the improvements, but contested Alamo’s right, as lessee, to participate in the portion of the award allocated to land value. The District Court, with an unreported opinion, App. 1-5, awarded Arizona $57,970 for its fee interest, and awarded Alamo $3,600 for the improvements and $57,050 for “its leasehold interest at the time of taking, and its reasonable prospective leasehold interest.” 1 Record 227-228. On appeal, the United States Court of Appeals for the Ninth Circuit, while recognizing that Alamo was entitled to compensation for the improvements, held that under the Enabling Act Arizona “had no power to grant a compensable property right to Alamo,” and that “Alamo therefore never acquired a property right for which it is entitled to compensation.” United States v. 2,662.92 Acres of Land, 495 F. 2d 12, 14 (1974). The Court of Appeals thus reversed the judgment of the District Court insofar as it concerned the leasehold interests. It remanded the cause for the entry of a new judgment in accordance with its opinion. Id., at 15. Because the Ninth Circuit’s decision appeared to implicate this Court’s decision in Lassen v. Arizona ex rel. Arizona Highway Dept., 385 U. S. 458 (1967), and because it was claimed to be in conflict with Nebraska v. United States, 164 F. 2d 866 (CA8 1947), cert. denied, 334 U. S. 815 (1948), we granted Alamo’s petition for certiorari. 420 U. S. 971 (1975). II The Lassen case was an action instituted by the Arizona Highway Department to prohibit the application by the State Land Commissioner of rules governing the acquisition of rights-of-way and material sites in federally donated lands held by Arizona in trust pursuant to the provisions of the Enabling Act. What was involved, therefore, was the acquisition of interests in trust lands by the State itself. The Supreme Court of Arizona held that it could be presumed conclusively that highways constructed across trust lands always enhanced the value of the remainder in amounts at least equal to the value of the areas taken and therefore refused to order the Highway Department to compensate the trust. State v. Lassen, 99 Ariz. 161, 407 P. 2d 747 (1965). This Court unanimously reversed. In so doing, it observed that the more recent federal grants to newly admitted States, including Arizona, “make clear that the United States has a continuing interest in the administration of both the lands and the funds which derive from them.” 385 U. S., at 460. The Court read § 28 of the Enabling Act with particularity. It emphasized the Act’s requirements that trust lands be sold or leased only to “ ‘the highest and best bidder’ ”; that no lands be sold for less than their appraised value; that disposal of trust lands be “ ‘only in manner as herein provided’ ”; that disposition in any other way “ ‘shall be deemed a breach of trust’ ”; and that every sale or lease “ ‘not made in substantial conformity with the provisions of this Act shall be null and void.’ ” 385 U. S., at 461-462. The Court then examined the purposes of the Act and concluded that the grant “was plainly expected to produce a fund, accumulated by sale and use of the trust lands, with which the State could support the public institutions designated by the Act.” Id., at 463. Sales and leases were intended. The “central problem” was “to devise constraints which would assure that the trust received in full fair compensation for trust lands.” Ibid. The Court concluded, for reasons stated in the opinion, that the Act’s procedural restrictions did not apply when the State itself sought trust lands for its highway program. The Court then turned to the standard of compensation Arizona must employ to recompense the trust for the interests the State acquired. It concluded that the terms and purposes of the grant did not permit Arizona to diminish the actual monetary compensation payable to the trust by the amount of any enhancement in the value of remaining trust lands. The Court emphasized that the Enabling Act “unequivocally demands both that the trust receive the full value of any lands transferred from it and that any funds received be employed only for the purposes for which the land was given.” Id., at 466. It again stressed the requirements of the Act and noted that “these restrictions in combination indicate Congress’ concern both that the grants provide the most substantial support possible to the beneficiaries and that only those beneficiaries profit from the trust.” Id., at 467. All this was confirmed by the background and legislative history of the Enabling Act. Accordingly, it held that even where the State itself is the acquisitor, the Act’s designated beneficiaries were to derive the full benefit of the grant. Thus, “Arizona must actually compensate the trust in money for the full appraised value of any material sites or rights-of-way which it obtains on or over trust lands.” Id., at 469 (footnotes omitted). This standard, it was said, “most consistently reflects the essential purposes of the grant.” Id., at 470. Much of what was said in Lassen had also been said, several decades earlier, in Ervien v. United States, 251 U. S. 41 (1919), when the provisions of the same Enabling Act were under consideration in a federal case from New Mexico. The Court’s concern for the integrity of the conditions imposed by the Act, therefore, has long been evident. But to say, as the Court did in Ervien and in Lassen, that the trust is to receive the full value of any lands transferred from it is not to say that the Act requires, in every Arizona case where a leasehold is outstanding at the time of the federal condemnation, that the trust is to receive the entire then value of the land and the possessor of the leasehold interest is to receive nothing whatsoever. What the Act requires — and we think that this is clear from Ervien and Lassen — is that the trust is to receive, at the time of its disposition of any interest in the land, the then full value of the particular interest which is being dispensed. It has long been established that the holder of an unexpired leasehold interest in land is entitled, under the Fifth Amendment, to just compensation for the value of that interest when it is taken upon condemnation by the United States. United States v. Petty Motor Co., 327 U. S. 372 (1946); A. W. Duckett & Co. v. United States, 266 U. S. 149 (1924). See United States v. General Motors Corp., 323 U. S. 373 (1945); Almota Farmers Elevator & Warehouse Co. v. United States, 409 U. S. 470 (1973); 2 P. Nichols, Eminent Domain § 5.23 (Rev. 3d ed. 1975); 4 id. § 12.42 [1]. It would therefore seem to follow that when a lease of trust land is made, the trust must receive from the lessee the then fair rental value of the possessory interest transferred by the lease, and that upon a subsequent condemnation by the United States, the trust must receive the then full value of the reversionary interest that is subject to the outstanding lease, plus, of course, the value of the rental rights under the lease. The trust should not be entitled, in addition to all this, to receive the compensable value, if any, of the leasehold interest. That, if it exists and if the lease is valid, is the lessee’s. See State ex rel. La Prade v. Carrow, 57 Ariz. 429, 433-434, 114 P. 2d 891, 893 (1941). Ordinarily, a leasehold interest has a compensable value whenever the capitalized then fair rental value for the remaining term of the lease, plus the value of any renewal right, exceeds the capitalized value of the rental the lease specifies. The Court has expressed it this way: “The measure of damages is the value of the use and occupancy of the leasehold for the remainder of the tenant’s term, plus the value of the right to renew . . . , less the agreed rent which the tenant would pay for such use and occupancy.” United States v. Petty Motor Co., 327 U. S., at 381. See Almota Farmers Elevator & Warehouse Co. v. United States, supra. A number of factors, of course, could operate to eliminate the existence of compensable value in the leasehold interest. Presumably, this would be so if the Enabling Act provided, as the New Mexico-Arizona Act does not, that any lease of trust land was revocable at will by the State, or if it provided that, upon sale or condemnation of the land, no compensation was payable to the lessee. The State, of course, may require that a provision of this kind be included in the lease. See United States v. Petty Motor Co., 327 U. S., at 375-376, and n. 4; see also 4 Nichols, supra, § 12.42 [1], pp. 12-488 and 12-489. A difference between the rental specified in the lease and the fair rental value plus the renewal right could arise either because the lease rentals were set initially at less than fair rental value, or because during the term of the lease the value of the land, and consequently its fair rental value, increased. The New Mexico-Arizona Enabling Act has a protective provision against the initial setting of lease rentals at less than fair rental value. This is specifically prohibited by § 28. The prohibition is given bite by the further very drastic provision that a lease not made in substantial conformity with the Act “shall be null and void.” Thus, if the lease of trust lands calls for a rental of substantially less than the land’s then fair rental value, it is null and void and the holder of the claimed leasehold interest could not be entitled to compensation upon condemnation. On the other hand, the fair rental value of the land may increase during the term of the lease. If this takes place, the increase in fair rental value operates to create a compensable value in the leasehold interest. It is at this point, we feel, that the Court of Appeals erred when it held that the Act by its terms, and apart from the extent to which it incorporated Arizona law by reference, barred Arizona from leasing trust land in any manner that might result in the lessee’s becoming constitutionally entitled to just compensation for the value of its unexpired leasehold interest at the time of the federal condemnation. Instead, the Act is completely silent in this respect. Ill Arizona, however, suggests that this usually acceptable analysis may not be applied under the New Mexico-Arizona Enabling Act. It argues, as the Court of Appeals held, 495 F. 2d, at 14, that under that Act the State, as trustee, has no power to grant a compensable property interest to Alamo, as lessee. It bases this thesis on the Enabling Act’s provision in § 28 that no “mortgage or other encumbrance” of trust land shall be valid, and it claims that a lease is an encumbrance, citing, among other cases, Hecketsweiler v. Parrett, 185 Ore. 46, 52, 200 P. 2d 971, 974 (1948) (agreement to sell real estate free and clear of encumbrances), and Hartman v. Drake, 166 Neb. 87, 91, 87 N. W. 2d 895, 898 (1958) (partition). One seemingly apparent and complete answer to this argument is that § 28 goes on to authorize specifically a lease of trust land for grazing purposes for a term of 10 years or less, and further provides that a leasehold, before being offered, shall be appraised at “true value.” See n. 2, supra. These provisions thus plainly contemplate the possibility of a lease of trust land and, in so doing, intimate that such a lease is not a prohibited “mortgage or other encumbrance.” Furthermore, Arizona statutes in other contexts specifically protect the lessee’s interest. Ariz. Rev. Stat. Ann. §§41-511.06, 37-291 (1974). See Ehle v. Tenney Trading Co., 56 Ariz. 241, 107 P. 2d 210 (1940). To this the State responds that, while a lease is possible, it falls short of being a compensable interest when the property is sold because the Act prohibits the sale unless the trust receives the full appraised value of the land. The argument assumes that such compensation is to be measured by the entire land value despite the presence of the outstanding lease. That approach overlooks the actuality of a two-step disposition of interests in the land, the first at the time of the granting of the lease, and the second at the time of the condemnation. Full appraised value is to be determined and measured at the times of disposition of the respective interests, and if the State receives those values at those respective times, the demands of the Enabling Act are met. The State’s argument would serve to convert and downgrade a 10-year grazing lease, fully recognized and permitted by the Act, into a lease terminable at will or into one automatically terminated whenever the State sells the property or it is condemned. The lessee is entitled to better treatment than this if neither the Enabling Act nor the lease contains any such provision. We have noted above that the Act or the lease, or both, could provide for that result. The Act, however, does not specifically so provide. Whether either the Act or the lease does so through incorporation of state law is an issue not addressed by the Court of Appeals, and it is to be considered on remand. We merely note that the fact that it is within Arizona’s power to insert a condemnation clause in a lease it makes of trust land does not mean that the State may claim the same result when its lease contains no such clause. IV Alamo suggests that the Court of Appeals’ decision is at odds with the above-cited case of Nebraska v. United States, 164 F. 2d 866 (CA8 1947), cert. denied, 334 U. S. 815 (1948). There, in the face of a totality claim like that, made by Arizona here, the Eighth Circuit ruled that trust lands in Nebraska were to be treated as any other property and that condemnation proceeds were subject to allocation between the State, as trustee and the holder of an outstanding agricultural lease. The Nebraska Enabling Act of April 19, 1864, c. 59, 13 Stat. 47, was an earlier edition of this type of statute, and was adopted more than four decades before the New Mexico-Arizona Act. It did not contain the detailed restrictive provisions that appear in the 1910 Act and that were developed and utilized as passing years and experience demonstrated a need for them. Because of this, one may say, as Arizona does, that the Nebraska case is distinguishable from the present one. But the decision is not devoid of precedential value, for it is consistent with our analysis of the New Mexico-Arizona Act in its recognition of the possibility of a compensable leasehold interest in trust land upon federal condemnation, and it demonstrates that the existence of that interest is not incompatible with the trust land concept. See also United States v. 78.61 Acres of Land, 265 F. Supp. 564 (Neb. 1967), a post-Lassen case; United States v. 40,021.64 Acres of Land, 387 F. Supp. 839, 848-849 (NM 1975). V Finally, the Court of Appeals observed, but only in passing, 495 F. 2d, at 14, that the lease recited that it was made subject to the laws of Arizona; that if the State “relinquished” the property to the United States, the lease “shall be null and void as it may pertain to the land so relinquished”; and that no provision of the lease “shall create any vested right in the lessee.” The court also observed, ibid., that Ariz. Rev. Stat. Ann. § 37-242 and 37-293 restrict a lessee’s participation in the proceeds of a sale of public land to the value of improvements. Having made these observations, however, the court thereupon concluded that it did not find it .necessary “to determine the rights of Alamo based upon these lease provisions or the state law.” 495 F. 2d, at 14. The significance of the provisions referred to and of the cited statutes will now be for determination upon remand. We note only that the land in question was condemned and thus does not appear to have been technically “relinquished” by Arizona to the United States; that we are not at all sure that there is language of restriction in § § 37-242 and 37-293; and that Ariz. Rev. Stat. Ann. §§ 37-288 and 37-290 respectively permit forfeiture for violation of the conditions of a lease or for nonpayment of rent, and cancellation of a lease if the leased land is reclassified to a higher use, and thus could explain the lease’s provision against vesting in the technical sense that it is not subject to any contingency whatsoever. ■ To repeat: we hold that nothing in the Enabling Act apart, possibly, from the extent it may incorporate Arizona law by reference, prevents the usual application of Fifth Amendment protection of the outstanding leasehold interest. We leave for determination on remand the following: (1) whether, under state law and the lease provisions, Alamo could not possess a compensable leasehold interest upon the federal condemnation; (2) if Alamo did possess such an interest, how it is properly to be evaluated and calculated (with the subsidiary questions of the relevance of possible lease renewals and of possible value additions by reason of Alamo’s development of adjoining properties, cf. United States v. Fuller, 409 U. S. 488 (1973)); and, (3) if that interest proves to be substantial, whether it is permissible to find from that fact a violation of the Enabling Act’s requirement that a lease, when offered, “shall be appraised at [its] true value” and be given at not less than that value. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Stevens took no part in the consideration or decision of this case. “Sec. 24. That in addition to sections sixteen and thirty-six, heretofore reserved for the Territory of Arizona, sections two and thirty-two in every township in said proposed State not otherwise appropriated at the date of the passage of this Act are hereby granted to the said State for the support of common schools . . . .” “Sec. 28. That it is hereby declared that all lands hereby granted, including those which, having been heretofore granted to the said Territory, are hereby expressly transferred and confirmed to the said State, shall be by the said State held in trust, to be disposed of in whole or in part only in manner as herein provided and for the several objects specified in the respective granting and confirmatory provisions, and that the natural products and money proceeds of any of said lands shall be subject to the same trusts as the lands producing the same. “Disposition of any of said lands, or of any money or thing of value directly or indirectly derived therefrom, for any object other than for which such particular lands, or the lands from which such money or thing of value shall have been derived, were granted or confirmed, or in any manner contrary to the provisions of this Act, shall be deemed a breach of trust. “No mortgage or other encumbrance of the said lands, or any part thereof, shall be valid in favor of any person or for any purpose or under any circumstances whatsoever. . . . Nothing herein contained shall prevent: (1) the leasing of any of the lands referred to in this section, in such manner as the Legislature of the State of Arizona may prescribe, for grazing, agricultural, commercial, and homesite purposes, for a term of ten years or less; ... or (4) the Legislature of the State of Arizona from providing by proper laws for the protection of lessees of said lands, whereby such lessees shall be protected in their rights to their improvements (including water rights) in such manner that in case of lease or sale of said lands to other parties the former lessee shall be paid by the succeeding lessee or purchaser the value of such improvements and rights placed thereon by such lessee. “All lands, leaseholds, timber, and other products of land, before being offered, shall be appraised at their true value, and no sale or other disposal thereof shall be made for a consideration less than the value so ascertained .... “No lands shall be sold for less than their appraised value .... “A separate fund shall be established for each of the several objects for which the said grants are hereby made or confirmed, and whenever any moneys shall be in any manner derived from any of said land the same shall be deposited by the state treasurer in the fund corresponding to the grant under which the particular land producing such moneys was by this Act conveyed or confirmed. No moneys shall ever be taken from one fund for deposit in any other, or for any object other than that for which the land producing the same was granted or confirmed. . . . “Every sale, lease, conveyance, or contract of or concerning any of the lands hereby granted or confirmed, or the use thereof or the natural products thereof, not made in substantial conformity with the provisions of this Act shall be null and void, any provision of the constitution or laws of the said- State to the contrary notwithstanding.” “All lands expressly transferred and confirmed to the State by the provisions of the Enabling Act approved June 20, 1910, including all lands granted to the State and all lands heretofore granted to the Territory of Arizona, and all lands otherwise acquired by the State, shall be by the State accepted and held in trust to be disposed of in whole or in part, only in manner as in the said Enabling Act and in this Constitution provided, and for the several objects specified in the respective granting and confirmatory provisions. The natural products and money proceeds of any of said lands shall be subject to the same trusts as the lands producing the same.” Tract 304: “All of Section 2, Township 10 North, Range 13 West, Gila and Salt River Base and Meridian, Yuma County, Arizona.” Tract 305: “All of Section 36, Township 11 North, Range 13 West, Gila and Salt River Base and Meridian, Yuma County, Arizona.” App. 1-2. No question is raised as to the propriety or effectiveness of the condemnation procedure. These figures were also the compensation estimated for the respective tracts in the declaration of taking and paid into court. 1 Record 15. The full-value provision does not exclude an appropriate deferred-payment arrangement. 385 U. S., at 469, n. 21. “[N]or shall private property be taken for public use, without just compensation.” The Arizona statutes governing grazing leases of trust lands recognize this possibility and provide for adjustment of rent at specified times to account for fluctuations in fair rental value. Ariz. Rev. Stat. Ann. §§ 37-283, 37-285 (1974). Indeed, under § 28 of the Enabling Act, at the termination of a lease, a re-evaluation would appear to be required before release or renewal. The Supreme Court of New Mexico long ago ruled that a grazing lease of state lands is not a “mortgage or... encumbrance,” within the meaning of the identical prohibition, applicable to New Mexico, in § 10 of the New Mexico-Arizona Enabling Act, 36 Stat. 563. American Mortgage Co. v. White, 34 N. M. 602, 605-606, 287 R. 702, 703 (1930). See United States v. 40,021.64 Acres of Land, 387 F. Supp. 839, 848-849 (NM 1975); State ex rel. State Highway Comm’n v. Chavez, 80 N. M. 394, 456 P. 2d 868 (1969). § 37-242: “A. When state lands on which there are improvements for which the owner thereof is entitled to be compensated are offered for sale, and the purchaser is not the owner of the improvements, the purchaser shall pay the person conducting the sale ten percent of the appraised value of the improvements and the balance within thirty days thereafter. If the state land department determines that the amount at which the improvements are appraised is so great that competitive bidding for the land will be thereby hindered, the department may sell the improvements on installments payable ten per cent upon announcement of the successful bidder, fifteen per cent thirty days thereafter, and fifteen per cent annually thereafter for five years, together with six per cent interest on the balance remaining unpaid, which amount, until paid, shall be a lien upon the land. The purchaser shall at all times, keep the insurable improvements insured for the benefit of the state. Payments shall be made at the time and in the manner prescribed for payments on the land, and any default in the payments for improvements shall be deemed a default in the payments for the land. “B. When improvements are sold on installments, the first twenty-five per cent, after deducting all rents, penalties and costs owing to the state on account of the land, shall be paid to the owner of the improvements, and the balance shall become a legal charge against the state. “C. Upon surrendering possession of any such land, the owner of the improvements thereof shall file with the commissioner of finance his claim for the balance on the improvements remaining unpaid, and if the claim bears the approval of the department as to correctness, and a certificate that possession of the lands and improvements has been surrendered by all persons having lawful claims for improvements on the land, it shall be paid by the state treasurer on the warrant of the commissioner of finance from any fund in which there is money subject to investment. As payments for the improvements are made by the purchaser, they shaE be deposited with the state treasurer and both principal and interest shaE be returned by him to the fund from which they were taken. “D. Failure to pay the balance of the purchase price or the fifteen per cent within thirty days after the announcement of the successful bidder shaE constitute a forfeiture of all rights to the land and all payments made.” §37-293: “A. A lessee of state lands shaE be reimbursed by a succeeding lessee for improvements placed on the lands which are not removable. If the retiring lessee and the new lessee do not agree upon the value of the improvements, either party may file with the state land department an application for appraisal of the improvements. Thereafter an appraisal of the improvements shall be made in the same manner and subject to the same conditions as appraisals of improvements are made when state lands are sold. “B. Upon making the appraisal, the department shall give notice of the amount thereof by registered mail to each person interested in the appraisal. The notice shall require that the new lessee pay to the department for the prior lessee the entire amount of the appraisal within thirty days from the date of the notice, or the department, when the value is greater than the rental for the period of the lease, may require that payment of ten per cent of the appraised value be made within thirty days, fifteen per cent within sixty days, twenty-five per cent at the end of the first year of the new lease, and twenty-five per cent at the end of each year thereafter until the entire balance is paid. “C. If the improvements are not paid for as required in the notice, the succeeding lessee shall not be permitted to sell, assign, or transfer his lease, nor sell, assign or remove any improvements whatever from the land until the entire amount of the appraised value of the improvements has been paid. Upon default he shall be subject to the same penalties and liabilities as provided by § 37-288 for failure to pay rents, including a cancellation of the lease.” We note in regard to the possible value of renewal rights that leases of the kind in issue here are limited by statute to 10.years in duration, and that the Act requires that rentals be adjusted to reflect current fair rental value before any renewal. See n. 9, supra. Therefore, although we do not foreclose the relevance of - possible renewals, the calculation of the lessee’s interest cannot include the prospect of renewing the lease at less than fair rental value. 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:

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. HELLER v. NEW YORK No. 71-1043. Argued November 14, 1972 — Decided June 25, 1973 Burger, C. J., delivered the opinion of the Court, in which White, BlackmuN, Powell, and RehNQüist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 494. BreNNAN, J., filed a dissenting opinion, in which Stewart and Marshall, JJ., joined, post, p. 494. Irving Anolik argued the cause and filed a brief for petitioner. Lewis R. Friedman argued the cause for respondent. With him on the brief were Frank S. Hogan and Michael R. Juviler. Briefs of amici curiae urging affirmance were filed by Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, Doris H. Maier and Edward P. O’Brien, Assistant Attorneys General, and Robert R. Granucci and Clifford K. Thompson, Jr., Deputy Attorneys General, for the State of California; and by Charles H. Keating, Jr., pro se, Richard M. Bertsch, James J. Clancy, and Albert S. Johnston III for Charles H. Keating, Jr. Me. Chief Justice BuRGer delivered the opinion of of the Court. We granted certiorari in this case to determine whether a judicial officer authorized to issue warrants, who has viewed a film and finds it to be obscene, can issue a constitutionally valid warrant for the film’s seizure as evidence in a prosecution against the exhibitor, without first conducting an adversary hearing on the issue of probable obscenity. Petitioner was manager of a commercial movie theater in the Greenwich Village area of New York City. On July 29, 1969, a film called “Blue Movie” was exhibited there. The film depicts a nude couple engaged in ultimate sexual acts. Three police officers saw part of the film. Apparently on the basis of their observations, an assistant district attorney of New York County requested a judge of the New York Criminal Court to see a performance. On July 31, 1969, the judge, accompanied by a police inspector, purchased a ticket and saw the entire film. There were about 100 other persons in the audience. Neither the judge nor the police inspector recalled any signs restricting admission to adults. At the end of the film, the judge, without any discussions with the police inspector, signed a search warrant for the seizure of the film and three “John Doe” warrants for the arrest of the theater manager, the projectionist, and the ticket taker, respectively. No one at the theater was notified or consulted prior to the issuance of the warrants. The judge signed the warrants because “it was, and is my opinion that that film is obscene, and was obscene as I saw it then under the definition of obscene, that is [in] . . . section 235.00 of the Penal Law.” Exhibition of an obscene film violates New York Penal Law § 235.05. The warrants were immediately executed by police officers. Three reels, composing a single copy of the film, were seized. Petitioner, the theater manager, was arrested, as were the projectionist and the ticket taker. No pretrial motion was made for the return of the film or for its suppression as evidence. Nor did petitioner make a pretrial claim that seizure of the film prevented its exhibition by use of another copy, and the record does not conclusively indicate whether such a copy was available. On September 16, 1969, 47 days after his arrest and the seizure of the movie, petitioner came to trial, a jury having been waived, before three judges of the New York City Criminal Court. At trial, the prosecution’s case rested almost solely on testimony concerning the arrests and the seizure of the film, together with the introduction into evidence of the seized film itself. The film was exhibited to the trial judges. The defense offered three “expert” witnesses: an author, a professor of sociology, and a newspaper writer. These witnesses testified that the film had social, literary, and artistic importance in illustrating “a growing and important point of view about sexual behavior” as well as providing observations “about the political and social situation in this country today. . . .” Petitioner testified that the theater’s employees were instructed not to admit persons who appeared to be under 18 years of age, unless they “had identification” that they were 18. Petitioner also testified that there was a sign at the box office stating that “no one under 17 [would be] admitted.” Both at the end of the prosecution’s case and his own case, petitioner moved to dismiss the indictment on the ground that the seizure of the film, without a prior adversary hearing, violated the Fourteenth Amendment. At the close of trial on September 17, 1969, petitioner was found guilty by all three judges of violating New York Penal Law § 235.05. On appeal, both the Supreme Court of the State of New York, Appellate Term, and the Court of Appeals of the State of New York viewed the film and affirmed petitioner’s conviction. The Court of Appeals, relying on this Court’s opinion in Lee Art Theatre v. Virginia, 392 U. S. 636, 637 (1968), held that an adversary hearing was not required prior to seizure of the film, and that the judicial determination which occurred prior to seizure in this case was constitutionally sufficient. In so holding, the Court of Appeals explicitly disapproved, as going “beyond any requirement imposed on State courts by the Supreme Court,” Astro Cinema Corp. v. Mackell, 422 F. 2d 293 (CA2 1970), and Bethview Amusement Corp. v. Cahn, 416 F. 2d 410 (CA2 1969), cert. denied, 397 U. S. 920 (1970), cases requiring an adversary hearing prior to any seizure of movie film. 29 N. Y. 2d 319, 323, 277 N. E. 2d 651, 653 (1971). We affirm this holding of the Court of Appeals of the State of New York. This Court has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized. See Times Film Corp. v. Chicago, 365 U. S. 43 (1961); Kingsley Books, Inc. v. Brown, 354 U. S. 436, 440-442-(1957). In particular, there is no such absolute right where allegedly obscene material is seized, pursuant to a warrant, to preserve the material as evidence in a criminal prosecution. In Lee Art Theatre v. Virginia, supra, the Court went so far as to suggest that it was an open question whether a judge need “have viewed the motion picture before issuing the warrant.” Here the judge viewed the entire film and, indeed, witnessed the alleged criminal act. It is not contested that the judge was a “neutral, detached magistrate,” that he had a full opportunity for independent judicial determination of probable cause prior to issuing the warrant, and that he was able to “focus searchingly on the question of obscenity.” See Marcus v. Search Warrant, 367 U. S. 717, 731-733 (1961). Cf. Coolidge v. New Hampshire, 403 U. S. 443, 449-453 (1971); Giordenello v. United States, 357 U. S. 480, 485-486 (1958); Johnson v. United States, 333 U. S. 10, 14-15 (1948). In United States v. Thirty-seven Photographs, 402 U. S. 363 (1971), and Freedman v. Maryland, 380 U. S. 51 (1965), we held that “ ‘because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.’ ” 402 U. S., at 367, quoting 380 U. S., at 58 (emphasis added). Those cases involved, respectively, seizure of imported materials by federal customs agents and state administrative licensing of motion pictures, both civil procedures directed at absolute suppression of the materials themselves. Even in those cases, we did not require that the adversary proceeding must take place prior to initial seizure. Rather, it was held that a judicial determination must occur “promptly so that administrative delay does not in itself become a form of censorship.” United States v. Thirty-seven Photographs, supra, at 367; Freedman v. Maryland, supra, at 57—59. See Blount v. Rizzi, 400 U. S. 410, 419-421 (1971); Teitel Film Corp. v. Cusack, 390 U. S. 139, 141-142 (1968); Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70-71 (1963). In this case, of course, the film was not subjected to any form of “final restraint,” in the sense of being enjoined from exhibition or threatened with destruction. A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition. Nor, in this case, did temporary restraint in itself “become a form of censorship,” even making the doubtful assumption that no other copies of the film existed. Cf. United States v. Thirty-seven Photographs, supra, at 367; Freedman v. Maryland, supra, at 57-59. A judicial determination of obscenity, following a fully adversary trial, occurred within 48 days of the temporary seizure. Petitioner made no pretrial motions seeking return of the film or challenging its seizure, nor did he request expedited judicial consideration of the obscenity issue, so it is entirely possible that a prompt judicial determination of the obscenity issue in an adversary proceeding could have been obtained if petitioner had desired. Although we have refrained from establishing rigid, specific time deadlines in proceedings involving seizure of allegedly obscene material, we have definitely excluded from any consideration of “promptness” those delays caused by the choice of the defendant. See United States v. Thirty-seven Photographs, supra, at 373-374. In this case, the barrier to a prompt judicial determination of the obscenity issue in an adversary proceeding was not the State, but petitioner’s decision to waive pretrial motions and reserve the obscenity issue for trial. Cf. Kingsley Books, Inc. v. Brown, 354 U. S., at 439. Petitioner’s reliance on the Court’s decisions in A Quantity of Books v. Kansas, 378 U. S. 205 (1964), and Marcus v. Search Warrant, 367 U. S. 717 (1961), is misplaced. Those cases concerned the seizure of large quantities of books for the sole purpose of their destruction, and this Court held that, in those circumstances, a prior judicial determination of obscenity in an adversary proceeding was required to avoid “danger of abridgment of the right of the public in a free society to unobstructed circulation of nonobscene books.” A Quantity of Books v. Kansas, supra, at 213. We do not disturb this holding. Courts will scrutinize any large-scale seizure of books, films, or other materials presumptively protected under the First Amendment to be certain that the requirements of A Quantity of Books and Marcus are fully met. “ ‘Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’ ” New York Times Co. v. United States, 403 U. S. 713, 714 (1971), quoting Bantam Books, Inc. v. Sullivan, 372 U. S., at 70; Organization for a Better Austin v. Keefe, 402 U. S. 415, 419 (1971); Carroll v. Princess Anne, 393 U. S. 175, 181 (1968). See Near v. Minnesota, 283 U. S. 697 (1931). But seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film. If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible. In addition, on a showing to the trial court that other copies of the film are not available to the exhibitor, the court should permit the seized film to be copied so that showing can be continued pending a judicial determination of the obscenity issue in an adversary proceeding. Otherwise, the film must be returned. With such safeguards, we do not perceive that an adversary hearing prior to a seizure by lawful warrant would materially increase First Amendment protection. Cf. Carroll v. Princess Anne, supra, at 183-184. The necessity for a prior judicial determination of probable cause will protect against gross abuses, while the availability of a prompt judicial determination in an adversary proceeding following the seizure assures that difficult marginal cases will be fully considered in light of First Amendment guarantees, with only a minimal interference with public circulation pending litigation. The procedure used by New York in this case provides such First Amendment safeguards, while also serving the public interests in full and fair prosecution for obscenity offenses. Counsel for New York has argued that movie films t^nd to “disappear” if adversary hearings are afforded prior to seizure. We take judicial notice that such films may be compact, readily transported for exhibition in other jurisdictions, easily destructible, and particularly susceptible to alteration by cutting and splicing critical parts of film. Petitioner also challenged his conviction on substantive, as opposed to procedural, ground arguing that he was convicted under standards of obscenity both over-broad and unconstitutionally vague. In addition, petitioner argues that films shown only to consenting adults in private have a particular claim to constitutional protection. In Miller v. California, ante, p. 15, and Paris Adult Theatre I v. Slaton, ante, p. 49, decided June 21, 1973, we dealt with these substantive issues. A majority of this Court has now approved guidelines for the lawful state regulation of obscene material. The judgment of the Court of Appeals of the State of New York is therefore vacated and this case remanded for the sole purpose of affording the New York courts an opportunity to reconsider these substantive issues in light of Miller and Paris Adult Theatre I. See United States v. 12 200-ft. Reels of Film, ante, at 130 n. 7. Vacated and remanded. The prosecution presented no evidence that juveniles were actually present in the theater. New York Penal Law §235.05 reads in relevant part: “A person is guilty of obscenity when, knowing its content and character, he: “1. Promotes, or possesses with intent to promote, any obscene material; or "2. Produces, presents or directs an obscene performance or participates in a portion thereof which is obscene or which contributes to its obscenity. “Obscenity is a class A misdemeanor.” The terms used in § 235.05 are defined by New York Penal Law §235.00, which reads in relevant part: “The following definitions are applicable to sections 235.05, 235.10 and 235.15: “1. 'Obscene.' Any material or performance is ‘obscene’ if (a) considered as a whole, its predominant appeal is to prurient, shameful or morbid interest in nudity, sex, excretion, sadism or masochism, and (b) it goes substantially beyond customary limits of candor in describing or representing such matters, and (c) it is utterly without redeeming social value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience. “2. ‘Material’ means anything tangible which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound or in any other manner. “3. ‘Performance’ means any play, motion picture, dance or other exhibition performed before an audience. “4. ‘Promote’ means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same.” The cases against the ticket taker and projectionist were dismissed on the motion of the prosecutor. “It is true that a judge may read a copy of a book in courtroom or chambers but not as easily arrange to see a motion picture there. However, we need not decide in this case whether the justice of the peace should have viewed the motion picture before issuing the warrant. The procedure under which the warrant issued solely upon the conclusory assertions of the police officer without any inquiry by the justice of the peace into the factual basis for the officer’s conclusions was not a procedure ‘designed to focus searchingly on the question of obscenity,’ [Marcus v. Search Warrant, 367 U. S. 717], at 732, and therefore fell short of constitutional requirements demanding necessary sensitivity to freedom of expression. See Freedman v. Maryland, 380 U. S. 51, 58-59.” 392 U. S., at 637. We further held “(1) there must be assurance, ‘by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film'; (2) ‘[a]ny restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution’; and (3) ‘the procedure must also assure a prompt final judicial decision’ to minimize the impact of possibly erroneous administrative action. [Freedman v Maryland, 380 U. S.], at 58-59.” United States v. Thirty-seven Photographs, 402 U. S., at 367. The State of New York has represented that it stands ready to grant “immediate” adversary hearings on pretrial motions challenging seizures of material arguably protected by the First Amendment. No such motion was made by petitioner. In particular, Marcus involved seizure by police officers acting pursuant to a general warrant of 11,000 copies of 280 publications. 367 U. S., at 723. Unlike this case, there was no independent judicial determination of obscenity by a neutral, detached magistrate, nor were the seizures made to preserve evidence for a criminal prosecution. Id., at 732. The sole purpose was to seize the articles as contraband and to cause them “to be publicly destroyed, by burning or otherwise.” Id., at 721 n. 6. In A Quantity of Books v. Kansas, 378 U. S. 205 (1964), 1,715 copies of 31 publications were seized by a county sheriff, also without any prior judicial determination of obscenity and, again, for the sole purpose of destroying the publications as contraband. Id., at 206-209. In Mishkin v. New York, 383 U. S. 502 (1966), this Court refused to review the legality of a seizure of books challenged under A Quantity of Books, supra, primarily because the record did not reveal the number of books seized as evidence under the warrant or “whether the books seized . . . were on the threshold of dissemination.” Id., at 613. If A Quantity of Books applied to all seizures of obscene material, there would have been no need for the Court to abstain from review in Mishkin, since the parties had conceded that there was no prior adversary hearing. This is not to say that multiple copies of a single film may be seized as purely cumulative evidence, or that a State may circumvent Marcus or A Quantity of Books by incorporating, as an element of a criminal offense, the number of copies of the obscene materials involved. By “prompt,” we mean the shortest period “compatible with sound judicial resolution.” See United States v. Thirty-seven Photographs, 402 U. S., at 367; Blount v. Rizzi, 400 U. S. 410, 417 (1971); Freedman v. Maryland, 380 U. S. 61, at 68-69 (1965). At oral argument, counsel for petitioner agreed that a prompt opportunity to obtain a copy from the seized film at “an independent lab under circumstances that would assure that there was no tampering with the film” with the original returned within “24 hours” would “satisfy” his “First Amendment position.” Tr. of Oral Arg. 28. Petitioner never requested such a copy below. Failure to permit copying of seized material adversely affects First Amendment interests; prompt copying of seized material should be permitted. If copying is denied, return of the seized material should be required. On the other hand, violations of Fourth Amendment standards would require that the seized material be excluded from evidence. See Roaden v. Kentucky, post, p. 496; Lee Art Theatre v. Virginia, 392 U. S., at 637. Cf. Mapp v. Ohio, 367 U. S. 643 (1961). Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:

songer_r_bus

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Grady HAMRICK, Appellant, v. AEROJET-GENERAL CORPORATION, INDUSTRIAL SYSTEMS DIVISION, an Ohio Corporation, Appellees. No. 73-1053. United States Court of Appeals, Fourth Circuit. Submitted Oct. 13, 1975. Decided Nov. 12, 1975. Martin C. Bowles, Charleston, W. Va., and Bennett R. Burgess, St. Albans, W. Va., for appellant. John S. Haight, Charleston, W. Va., for appellee. Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges. PER CURIAM: Plaintiff-appellant seeks reversal of the decision of the District Court denying him relief for personal injuries which he allegedly suffered as the result of defendant-appellee’s negligence. The complaint was filed in the Court of Common Pleas of Kanawha County, West Virginia, and was removed by the defendant to the United States District Court for the Southern District of West Virginia on the basis of diversity of citizenship. The trial court, sitting without jury, found that the defendant was not negligent, and that the plaintiff himself was guilty of contributory negligence and assumption of risk. Defendant, Aerojet, was a general contractor which had undertaken a construction project for Union Carbide Corporation. The plaintiff was instructed by his employer, Dougherty Company, Inc., one of defendant’s subcontractors, to report to the Union Carbide construction site. Upon arrival, finding it necessary to ascend to the third floor of the project, he chose to utilize the “man-lift” instead of a staircase which was equally accessible. The “man-lift” is a conveyor belt which stands perpendicular to the ground, has footholds and handles which allow persons to secure themselves, and serves as a crude mode of elevator. Having mounted the lift, the plaintiff failed to realize that he had gone beyond floor level of the top floor, and was approaching the point at which the belt would make a 180 degree turn and begin its descent. As a consequence, he was forced to jump off the lift. Upon impact with the floor, appellant sustained serious damage to his ankle. Appellant alleged in the District Court that Aerojet was negligent in several regards, most notably in that they failed to mark the floors adjacent to the path of the man-lift. In support of his claim, he cited West Virginia Code Chapter 21, Article 3, §§ 1-3, which requires that employers take certain precautionary measures to protect employees from injury from mechanical apparatus. Although West Virginia treats the violation of such a statute as prima facie negligence if it is the proximate cause of injury, Tarr v. Keller Lumber and Construction Co., 106 W.Va. 99; 144 S.E. 881 (1928), the District Court properly noted that the Supreme Court of West Virginia has held the above-mentioned statutory provision to be applicable only to the employer-employee situation. See Chenoweth v. Settle Engineers, Inc., 151 W.Va. 830, 838, 156 S.E.2d 297, 302 (1967). There is no dispute as to the fact that appellant and Aerojet did not stand in the relationship of employer and employee. Additionally, the District Court reasoned that the statutory language indicated a legislative intent to make the safety requirements applicable to operational industrial facilities, not to those which are merely under construction. Since the statute speaks to owners of places of employment “now or hereafter constructed,” W.Va. Code, c. 21, art 3, § 1, we feel that such an interpretation is proper. Although not unambiguous, the West Virginia Supreme Court seemed to concur in this construction. See Chenoweth v. Settle Engineers, Inc., supra at 838, 156 S.E.2d at 302. The trial judge thus examined the duty owed to the plaintiff in accordance with the common law of West Virginia. Appellant urges that through the doctrines of “reasonable convenience” or “mutual advantage” he was owed the duty of reasonable care, rather than the lesser duty of refraining from willful and wanton conduct. On the authority of Perkins v. Henry J. Kaiser Company, 236 F.Supp. 484, (S.D.W.Va.1964), aff’d, 339 F.2d 703, the District Judge found neither theory to be applicable to the instant case. “Mutual advantage” requires that the owner of the apparatus receive advantage from the permitted use by another of that particular piece of equipment. Id. at 487. It is clear from the record that plaintiff could have chosen just as easily to use the stairs for his two-story ascent, and that no benefit accrued to Aero as a result of his decision to use the “man-lift.” “Reasonable convenience” is pertinent where it is foreseeable that use of the mechanism would be reasonably necessary for the subcontractor to perform the functions owed his general contractor. Id.; See also Pettyjohn v. Basham, 126 Va. 72, 100 S.E. 813 (1919). The existence of the equally accessible stairway negates the applicability of this doctrine as well. The trial court found that Aero violated no duty owed the plaintiff-appellant. Additionally, it was found that plaintiff was contributorily negligent in his failure to observe that the “man-lift” had reached the top floor. We cannot say that these findings are clearly erroneous. See Rule 52, F.R.Civ.P. Nor do we find any error of law. Since the findings of an absence of defendant’s negligence and appellant’s contributory negligence adequately dispose of the instant case, we express no opinion as to the propriety of the trial court’s decision that appellant’s action also constituted assumption of risk. Accordingly, the judgment of the District Court is affirmed. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:

songer_direct1

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Robert A. RIDDELL, Collector of Internal Revenue for the Sixth Collection District of California, Appellant, v. LA JOLLA CASA DE MANANA, Appellee. No. 13662. United States Court of Appeals Ninth Circuit. Sept. 22, 1953. Appeal from the United States District Court for the Southern District of California, Central Division; Wm. Bryne, Judge. H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, Robert N. Anderson, John J. Kelley, Jr., Sp. Assts. to Atty. Gen., Alonzo Watson, Sp. Asst, to Atty. Gen., Washington, D. G, Walter S. Binns, U. S. Atty., E. II. Mitchell and Edward R. McHale, Asst. U. S. Attys., Los Angeles, Cal., for appellant. W. I. Titus, Los Angeles, Cal., Harry B. Jones, and R. B. Hooper, Seattle, Wash., for appellee. Before HEALY, BONE, and POPE, Circuit Judges. PER CURIAM. The judgment is affirmed for the reasons given in the opinion of the trial court, D. C, 106 F.Supp. 132. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:

sc_caseorigin

068

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. MOBIL OIL CORP. v. HIGGINBOTHAM, ADMINISTRATRIX, et al. No. 76-1726. Argued January 10, 11, 1978 Decided June 5, 1978 SteveNS, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and Rehnquist, JJ., joined. Marshall, J., filed a dissenting opinion, in which BlackmuN, J., joined, post, p. 626. BreNNAN, J., took no part in the consideration or decision of the case. Carl J. Schumacher, Jr., argued the cause for petitioner. With him on the brief were E. D. Vickery and Charles C. Gray. Jack C. Benjamin argued the cause for respondents. With him on the brief for respondent Shinn was Arthur A. Crais, Jr. Charles M. Thompson, Jr., filed a brief for respondents Higginbotham et al. I. P. Saal, Jr., filed a brief for respondent Nation. Mr. Justice Stevens delivered the opinion of the Court. This case involves death on the high seas. The question is whether, in addition to the damages authorized by federal statute, a decedent’s survivors may also recover damages under general maritime law. The United States Court of Appeals for the Fifth Circuit, disagreeing with the First Circuit, held that survivors may recover for their “loss of society,” as well as for their pecuniary loss. We reverse. Petitioner used a helicopter in connection with its oil drilling operations in the Gulf of Mexico about 100 miles from the Louisiana shore. On August 15, 1967, the helicopter crashed outside Louisiana’s territorial waters, killing the pilot and three passengers. In a suit brought by the passengers’ widows, in their representative capacities, the District Court accepted admiralty jurisdiction and found that the deaths were caused by petitioner’s negligence. The court awarded damages equal to the pecuniary losses suffered by the families of two passengers. Although the court valued the two families’ loss of society at $100,000 and $155,000, it held that the law did not authorize recovery for this loss. The Court of Appeals reversed, holding that the plaintiffs were entitled to claim damages for loss of society. We granted certiorari limited to this issue. 434 U. S. 816. I In 1877, the steamer Harrisburg collided with a schooner in Massachusetts coastal waters. The schooner sank, and its first officer drowned. Some five years later, his widow brought a wrongful-death action against the Harrisburg. This Court held that admiralty afforded no remedy for wrongful death in the absence of an applicable state or federal statute. The Harrisburg, 119 U. S. 199. Thereafter, suits arising out of maritime fatalities were founded by necessity on state wrongful-death statutes. See, e. g., The Hamilton, 207 U. S. 398. In 1920, Congress repudiated the rule of The Harrisburg for maritime deaths occurring beyond the territorial waters of any State. It passed the Death on the High Seas Act (hereinafter sometimes DOHSA), creating a remedy in admiralty for wrongful deaths more than three miles from shore. This Act limits the class of beneficiaries to the decedent’s “wife, husband, parent, child, or dependent relative,” establishes a two-year period of limitations, allows suits filed by the victim to continue as wrongful-death actions if the victim dies of his injuries while suit is pending, and provides that contributory negligence will not bar recovery. With respect to damages, the statute declares: “The recovery . . . shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought . . . .” In the half century between 1920 and 1970, deaths on the high seas gave rise to federal suits under DOHSA, while those in territorial waters were largely governed by state wrongful-death statutes. DOHSA brought a measure of uniformity and predictability to the law on the high seas, but in territorial waters, where The Harrisburg made state law the only source of a wrongful-death remedy, the continuing impact of that decision produced uncertainty and incongruity. The reasoning of The Harrisburg, which was dubious at best in 1886, became less and less satisfactory as the years passed. In 1970, therefore, the Court overruled The Harrisburg. In Moragne v. States Marine Lines, Inc., 398 U. S. 375, the Court held that a federal remedy for wrongful death does exist under general maritime law. The case concerned a death in Florida’s territorial waters. The defendant argued that Congress, by limiting DOHSA to the high seas, had evidenced an intent to preclude federal judicial remedies in territorial waters. The Court concluded, however, that the reason Congress confined DOHSA to the high seas was to prevent the Act from abrogating, by its own force, the state remedies then available in state waters. Id., at 400. In Moragne the Court left various subsidiary questions concerning the nonstatutory death remedy — such as the schedule of beneficiaries and the limitations period — for “further sifting through the lower courts in future litigation.” Id., at 408. A few years later, in Sea-Land Services, Inc. v. Gaudet, 414 U. S. 573, the Court confronted some of these questions. Among the issues addressed in Gaudet was the measure of survivors' damages. The Court held that awards could include compensation for loss of support and services, for funeral expenses, and for loss of society, but not for mental anguish or grief. Id., at 583-591. The Court recognized that DOHSA, which compensates only for pecuniary losses, did not allow awards for loss of society. But the accident in Gaudet, like that in Moragne, took place in territorial waters, where DOHSA does not apply. The Court chose not to adopt DOHSA’s pecuniary-loss standard; instead it followed the “clear majority of States” and “the humanitarian policy of the maritime law,” both of which favored recovery for loss of society. 414 U. S., at 587-588. In sum, the Court made a policy determination in.Gaudet which differed from the choice made by Congress when it enacted the Death on the High Seas Act. II The Gaudet opinion was broadly written. It did not state that the place where death occurred had an influence on its analysis. Gaudet may be read, as it has been, to replace entirely the Death on the High Seas Act. Its holding, however, applies only to coastal waters. We therefore must now decide which measure of damages to apply in a death action arising on the high seas — the rule chosen by Congress in 1920 or the rule chosen by this Court in Gaudet. As the divergence of views among the States discloses, there are valid arguments both for and against allowing recovery for loss of society. Courts denying recovery cite two reasons; (1) that the loss is “not capable of measurement by any material or pecuniary standard,” and (2) that an award for the loss “would obviously include elements of passion, sympathy and similar matters of improper character.” 1 S. Speiser, Recovery for Wrongful Death § 3:49 (2d ed. 1974). Courts allowing the award counter: (1) that the loss is real, however intangible it may be, and (2) that problems of measurement should not justify denying all relief. See generally Sea-Land Services, Inc. v. Gaudet, supra, at 588-590. In this case, however, we need not pause to evaluate the opposing policy arguments. Congress has struck the balance for us. It has limited survivors to recovery of their pecuniary losses. Respondents argue that Congress does not have the last word on this issue — that admiralty courts have traditionally undertaken to supplement maritime statutes and that such a step is necessary iii this case to preserve the uniformity of maritime law. Neither argument is decisive. We recognize today, as we did in Moragne, the value of uniformity, but a ruling that DOHSA governs wrongful-death recoveries on the high seas poses only a minor threat to the uniformity of maritime law. Damages aside, none of the issues on which DOHSA is explicit have been settled to the contrary by this Court in either Moragne or Gaudet. Nor are other disparities likely to develop. As Moragne itself implied, DOHSA should be the courts’ primary guide as they refine the nonstatutory death remedy, both because of the interest in uniformity and because Congress’ considered judgment has great force in its own right. It is true that the measure of damages in coastal waters will differ from that on the high seas, but even if this difference proves significant, a desire for uniformity cannot override the statute. We realize that, because Congress has never enacted a comprehensive maritime code, admiralty courts have often been called upon to supplement maritime statutes. The Death on the High Seas Act, however, announces Congress’ considered judgment on such issues as .the beneficiaries, the limitations period, contributory negligence, survival, and damages. See nn. 6-10, supra. The Act does not address every issue of wrongful-death law, see, e. g., n. 15, supra, but when it does speak directly to a question, the courts are not free to “supplement” Congress’ answer so thoroughly that the Act becomes meaningless. In Moragne, the Court recognized a wrongful-death remedy that supplements federal statutory remedies. But that holding depended on our conclusion that Congress withheld a statutory remedy in coastal waters in order to encourage and preserve supplemental remedies. 398 U. S., at 397-398. Congress did not limit DOHSA beneficiaries to recovery of their pecuniary losses in order to encourage the creation of non-pecuniary supplements. See generally Barbe v. Drummond, 507 F. 2d 794, 801 n. 10 (CA1 1974); Wilson v. Transocean Airlines, 121 F. Supp. 85 (ND Cal. 1954). There is a basic difference between filling a gap left by Congress’ silence and rewriting rules that Congress has affirmatively and specificallly enacted. In the area covered by the statute, it would be no more appropriate to prescribe a different measure of damages than to prescribe a different statute of limitations, or a different class of beneficiaries. Perhaps the wisdom we possess today would enable us to do a better job of repudiating The Harrisburg than Congress did in 1920, but even if that be true, we have no authority to substitute our views for those expressed by Congress in a duly enacted statute. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Me. Justice BreNNAN took no part in the consideration or decision of this case. Compare Barbe v. Drummond, 507 F. 2d 794, 800-802 (CA1 1974), with Higginbotham v. Mobil Oil Corp., 545 F. 2d 422 (CA5 1977). The members of the Higginbotham panel expressed their agreement with Barbe, swpra, but considered the issue foreclosed in their Circuit by Law v. Sea Drilling Corp., 510 F. 2d 242, on rehearing, 523 F. 2d 793 (CA5 1975). In that case, another Fifth Circuit panel stated that the statutory remedy provided by the Death on the High Seas Act was no longer needed. Id., at 798. See also n. 16, infra. 357 F. Supp. 1164, 1167 (WD La. 1973). The District Court bottomed admiralty jurisdiction on a finding that the helicopter was the functional equivalent of a erewboat. The ruling has not been challenged in this Court. Cf. Executive Jet Aviation, Inc. v. Cleveland, 409 U. S. 249, 271-272. 360 F. Supp. 1140 (WD La. 1973). One family received $362,297, the other $163,400. The District Court held that the third passenger’s family could claim benefits only under the Longshoremen’s and Harbor Workers’ Compensation Act. 33 U. S. C. § 901 et seq. The Court of Appeals reversed this ruling. 545 F. 2d, at 431-433. The former figure included $50,000 for one widow and $50,000 for her only daughter. The latter figure included $25,000 for the second widow and for each of two minor children, as well as $20,000 for each of four older children. 360 F. Supp., at 114A-1148. 41 Stat. 537, 46 U. S. C. § 761 et seq. § 761. § 763. § 765. § 766. In addition, the statute preserved the applicability of local law on the Great Lakes, in the Panama Canal Zone, and within the States’ territorial waters. § 767. Rights under foreign wrongful-death laws were also preserved. § 764. § 762. The death of a seaman was an exception to this rule. The Jones Act gives a remedy to the dependents of a seaman killed in the course of employment by his employer’s negligence, no matter where the wrong takes place. § 688. In The Tungus v. Skovgaard, 358 U. S. 588, for example, the Court could not definitively determine whether New Jersey law allowed recovery for unseaworthiness or required proof of negligence. Three anomalies were identified in Moragne v. States Marine Lines, Inc., 398 U. S. 375. In States with limited wrongful-death remedies, shipowners were liable if their breach of a maritime duty caused injury but not if the breach caused death. Furthermore, deaths due to unseaworthiness had a remedy on the high seas, but often w>ent unremedied inside the three-mile limit. Finally, “true” seamen were denied the benefit of state wrongful-death laws while longshoremen doing seamen’s work could assert claims under state law. Id., at 395-396. The Court in The Harrisburg arrived at its conclusion after rejecting arguments founded on nothing more than “good reason,” “natural equity,” and the experience of nations like France and Scotland. 119 U. S., at 212-213. The primary issue in Gaudet was whether a decedent’s survivors could bring a Moragne action even though the decedent himself had sued and recovered damages before dying. DOHSA offered no guidance on this issue. 414 U. S., at 683 n. 10. In the course of providing its own answer, the Court addressed the contention that the survivors’ recovery would simply duplicate the decedent’s. The Court outlined the elements of damages under the new maritime-death remedy and noted that several were distinct from those available to the decedent himself. As Chief Judge Brown put it in Law v. Sea Drilling Corp., 523 F. 2d 793 (CA5 1975): “It is time that the dead hand of The Harrisburg•— whether in the courts or on the elbow of the congressional draftsmen of DOHSA — follow the rest of the hulk to an honorable rest in the briney deep. ... No longer does one need . . . DOHSA as a remedy. There is a federal maritime cause of action for death on navigable waters — any navigable waters — and it can be enforced in any court.” Id., at 798. The award contemplated by Gaudet is especially difficult to compute, for the jury must calculate the value of the lost love and affection without awarding damages for the survivors’ grief and mental anguish, even though that grief is probably the most tangible expression of the survivors’ emotional loss. See Sea-Land Services, Inc. v. Gaudet, 414 U. S., at 585-586, n. 17. See also G. Gilmore & C. Black, Law of Admiralty 372 (2d ed. 1975). Moragne proclaimed the need for uniformity in a far more compelling context. When Moragne was decided, fatal accidents on the high seas had an adequate federal remedy, while the same accidents nearer shore might yield more generous awards, or none at all, depending on the law of the nearest State. The only disparity that concerns us today is the difference between applying one national rule to fatalities in territorial waters and a slightly narrower national rule to accidents farther from land. Moragne recognized that the courts would need to devise a limitations period and a schedule of beneficiaries for the new death remedy. The Court considered several alternative solutions to these problems. Only DOHSA, however, figured prominently in the discussion of both issues. 398 U. S., at 405-408. It remains to be seen whether the difference between awarding loss-of-society damages under Oaudet and denying them under DOHSA has a great practical significance. It may be argued that the competing views on awards for loss of society, see supra, at 623, can best be reconciled by allowing an award that is primarily symbolic, rather than a substantial portion of the survivors’ recovery. We have not been asked to rule on the propriety of the large sums that the District Court would have awarded for loss of society in this case. See n. 4, supra. Similarly, there may be no great disparity between DOHSA and Gaudet on the issue of funeral expenses. Gaudet awards damages to dependents who have paid, or will pay, for the decedent’s funeral, evidently on the theory that, but for the wrongful death, the decedent would have accumulated an estate large enough to pay for his own funeral. 414 U. S., at 591. On that theory, the cost of the funeral could also be considered a pecuniary loss suffered by the dependent as a result of the death. Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:

songer_genresp1

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. 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. Michael R. DULIN, Petitioner-Appellant, v. Gerald COOK and Gary W. Deland, Respondents-Appellees. No. 91-4110. United States Court of Appeals, Tenth Circuit. Feb. 18, 1992. Michael R. Dulin, pro se. R. Paul Van Dam, Atty. Gen., and Charlene Barlow, Asst. Atty. Gen., State of Utah, Salt Lake City, Utah, for respondents-appellees. Before McKAY, Chief Judge, and SEYMOUR and EBEL, Circuit Judges. McKAY, Chief Judge. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. This appeal arises from the district court’s denial of Petitioner’s Writ of Habe-as Corpus. The district court determined that Petitioner failed to exhaust state review of his habeas claims and that he is now procedurally barred from doing so. Thus, the district court concluded Petitioner had procedurally defaulted his federal claims and denied him federal habeas relief. Petitioner challenges the district court’s decision on two grounds. First, Petitioner contends that he afforded the Utah Supreme Court the opportunity to review his habeas claims, and thus, he exhausted his state remedies. Second, Petitioner contends his lack of access to Utah appellate rules should excuse him from his procedural default. Petitioner, a prisoner in Nevada, pled guilty in 1984 to a misdemeanor charge of possession of a dangerous weapon and was sentenced to one year in jail or prison. Subsequently, Petitioner was charged with burglary, theft, and being a habitual criminal. Petitioner filed a motion to dismiss the charges in state district court arguing that the felony charges arose out of the same criminal episode as the misdemeanor weapons possession charge he had already been convicted of. Petitioner argued that, because he had already been convicted of the weapons possession charge, he could not subsequently be charged with burglary and theft. Petitioner’s motion was denied, and he was found guilty as charged after a non-jury trial. Petitioner did not seek direct appeal of this conviction. Four years after he was convicted, however, Petitioner filed a habe-as corpus petition in state district court raising essentially the same issues he had asserted in his motion to dismiss. The state district court denied Petitioner’s habe-as corpus petition. That court determined that the habeas corpus petition was an improper substitute for a direct appeal and that Petitioner’s arguments did not justify habeas relief. Petitioner appealed the denial to the Utah Supreme Court. The Utah Supreme Court transferred the case to the Utah Court of Appeals pursuant to Rule 42 of the Utah Rules of Appellate Procedure (“Appellate Rules”). The Utah Court of Appeals affirmed the state district court’s denial of Petitioner’s habeas corpus petition after considering the merits of Petitioner’s claims. Petitioner was entitled to seek certiorari review of the Utah Court of Appeals’ decision pursuant to Rule 45. However, Petitioner was required to petition for such review within thirty days after the entry of the Utah Court of Appeals’ decision. This thirty-day time limit expired without Petitioner seeking such review. Consequently, the federal district court determined that Petitioner could no longer seek further state review of his habeas claims and, thus, was procedurally barred from seeking any federal habeas relief as well. The district court, however, failed to further analyze Petitioner’s default under either the “deliberate bypass” standard or the “cause and prejudice” standard. Petitioner contends he exhausted state remedies despite his failure to seek certiorari review of the Utah Court of Appeals’ decision. He claims that the Utah Supreme Court had an opportunity to reach the merits of his habeas claims when it transferred the case to the Utah Court of Appeals. We understand the Rule 42 transfer process to be an overflow mechanism and not a review on the merits which the exhaustion doctrine requires. Thus, we conclude that Petitioner’s original appeal to the Utah Supreme Court did not constitute an exhaustion of his state remedies. We further conclude that the .district court properly found Petitioner would now be procedurally barred from exhausting his state remedies in the Utah Supreme Court. Appellate Rule 48(a) requires that a petition for certiorari be filed within thirty days after the entry of a decision by the Utah Court of Appeals. The clerk is required by Appellate Rule 48(b) to refuse any petition for certiorari which is jurisdictionally out of time. Appellate Rule 48(e) allows the Utah Supreme Court, upon a showing of excusable neglect or good cause, to extend the time for filing a petition for certiorari. A petitioner must request such an extension within thirty days after the original thirty-day time limit expires, however. Any extension granted cannot exceed the original thirty-day time limit by more than forty days. All of these time limits have long since expired in the case of Petitioner’s habeas action. Thus, it seems sufficiently clear that the Utah Supreme Court would not, indeed could not, accept Petitioner’s habeas action for review even upon a showing of good cause. Although Appellate Rule 2 allows the Utah Supreme Court to suspend the rules upon a showing of extraordinary cause, such a suspension is specifically disallowed with respect to Appellate Rule 48. Thus, we conclude that an anticipatory denial of state relief, as articulated by the United States Supreme Court in Coleman v. Thompson, — U.S.-, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), is properly applied here. In Coleman the Court noted that if the court to which Petitioner must present his claims in order to meet the exhaustion requirement would now find those claims procedurally barred, there is a procedural default for the purposes of federal habeas review. Coleman, 111 S.Ct. at 2557 n. 1. Petitioner contends that his default should be excused due to his lack of knowledge of Utah appellate rules. Petitioner alleges that, because he is in a Nevada prison, he had no access to, or notice of, Utah appellate rules and, thus, had no way of knowing that further state appeal was required or available. In effect, Petitioner contends this lack of access to rules or notice regarding his right to appeal constitutes “cause” for his procedural default. In Coleman the Court clearly announced that: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 111 S.Ct. at 2565. See also Gilbert v. Scott, 941 F.2d 1065, 1067-68 (10th Cir.1991) (adopting the Coleman “cause and prejudice” standard). The “cause and prejudice” standard applies to pro se prisoners just as it applies to prisoners represented by counsel. Rodriguez v. Maynard, 948 F.2d 684, 687 (10th Cir.1991). In order to satisfy the “cause” standard, Petitioner must show that “some objective factor external to the defense” impeded his compliance with Utah’s procedural rules. McCleskey v. Zant, — U.S.-, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991). We conclude that Petitioner sufficiently alleges “cause” when he claims that, due to his incarceration in Nevada, he had no reasonable access to, or notice of, Utah appellate rules. Thus, Petitioner should be afforded the opportunity to prove these circumstances- did in fact exist. We stress that we are not deciding that “cause” actually exists in this case. As in any other case dismissed on the pleadings, we have merely determined that the complaint on its face states a claim for cause under the “cause and prejudice” standard — that is, no knowledge of Utah appellate rules and no reasonable method by which to gain such knowledge due to incarceration in a foreign jurisdiction. Instead, we remand this case to the district court for the factual and legal inquiry required to make such a determination. If the district court determines that Petitioner did not know of his right to further state appeal due to lack of reasonable access to, or notice of, Utah appellate rules, then it must further determine whether Petitioner meets the “prejudice” prong of the “cause and prejudice” standard. In determining whether “cause” exists in this case, the district court should inquire into any reasonable means by which Petitioner could have received notice of the availability of further state appeal. Such means might include access to an attorney, access to the Utah appellate rules through library loan, inquiry to the Utah appellate system, or any kind of notice received by Petitioner in connection with the disposition of his state habeas claims. We further note that Petitioner's alleged lack of knowledge must be due to a lack of reasonable access to the rules as distinguished from basic ignorance of the rules or the law. This case is REMANDED to the district court for further proceedings consistent with this opinion. Petitioner has failed to demonstrate that denial of federal habeas corpus review will result in a fundamental miscarriage of justice. Cases involving a fundamental miscarriage of justice "are extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime." McClesky v. Zant, — U.S.-, 111 S.Ct. 1454, 1470, 1475, 113 L.Ed.2d 517 (1991); Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649-50, 91 L.Ed.2d 397 (1986); Gilbert v. Scott, 941 F.2d at 1068 n. 1. Petitioner does not allege facts which would bring him within this narrow exception. 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:

sc_respondentstate

37

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. H. P. HOOD & SONS, INC. v. Du MOND, COMMISSIONER OF AGRICULTURE AND MARKETS. No. 92. Argued December 13-14, 1948. Decided April 4, 1949. Warren F. Farr argued the cause and filed a brief for petitioner. Nathaniel L. Goldstein, Attorney General of New York, and Robert G. Blabey submitted on brief for respondent. Mr. Justice Jackson delivered the opinion of the Court. This case concerns the power of the State of New York to deny additional facilities to acquire and ship milk in interstate commerce where the grounds of denial are that such limitation upon interstate business will protect and advance local economic interests. H. P. Hood & Sons, Inc., a Massachusetts corporation, has long distributed milk and its products to inhabitants of Boston. That city obtains about 90% of its fluid milk from states other than Massachusetts. Dairies located in New York State since about 1900 have been among the sources of Boston’s supply, their contribution having varied but during the last ten years approximating 8%. The area in which Hood has been denied an additional license to make interstate purchases has been developed as a part of the Boston milkshed from which both the Hood Company and a competitor have shipped to Boston. The state courts have held and it is conceded here that Hood’s entire business in New York, present and proposed, is interstate commerce. This Hood has conducted for some time by means of three receiving depots, where it takes raw milk from farmers. The milk is not processed in New York but is weighed, tested and, if necessary, cooled and on the same day shipped as fluid milk to Boston. These existing plants have been operated under license from the State and are not in question here as the State has licensed Hood to continue them. The controversy concerns a proposed additional plant for the same kind of operation at Greenwich, New York. Article 21 of the Agriculture and Markets Law of New York forbids a dealer to buy milk from producers unless licensed to do so by the Commissioner of Agriculture and Markets. For the license he must pay a substantial fee and furnish a bond to assure prompt payment to producers for milk. Under § 258, the Commissioner may not grant a license unless satisfied “that the applicant is qualified by character, experience, financial responsibility and equipment to properly conduct the proposed business.” The Hood Company concededly has met all the foregoing tests and license for an additional plant was not denied for any failure to comply with these requirements. The Commissioner’s denial was based on further provisions of this section which require him to be satisfied “that the issuance of the license will not tend to a destructive competition in a market already adequately served, and that the issuance of the license is in the public interest.” Upon the hearing pursuant to the statute, milk dealers competing with Hood as buyers in the area opposed licensing the proposed Greenwich plant. They complained that Hood, by reason of conditions under which it sold in Boston, had competitive advantages under applicable federal milk orders, Boston health regulations, and OPA ceiling prices. There was also evidence of a temporary shortage of supply in the Troy, New York market during the fall and winter of 1945-46. The Commissioner was urged not to allow Hood to compete for additional supplies of milk or to take on producers then delivering to other dealers. The Commissioner found that Hood, if licensed at Greenwich, would permit its present suppliers, at their option, to deliver at the new plant rather than the old ones and for a substantial number this would mean shorter hauls and savings in delivery costs. The new plant also would attract twenty to thirty producers, some of whose milk Hood anticipates will or may be diverted from other buyers. Other large milk distributors have plants within the general area and dealers serving Troy obtain milk in the locality. He found that Troy was inadequately supplied during the preceding short season. In denying the application for expanded facilities, the Commissioner states his grounds as follows: “If applicant is permitted to equip and operate another milk plant in this territory, and to take on producers now delivering to plants other than those which it operates, it will tend to reduce the volume of milk received at the plants which lose those producers, and will tend to increase the cost of handling milk in those plants. “If applicant takes producers now delivering milk to local markets such as Troy, it will have a tendency to deprive such markets of a supply needed during the short season. “There is no evidence that any producer is without a market for his milk. There is no evidence that any producers not now delivering milk to applicant would receive any higher price, were they to deliver their milk to applicant’s proposed plant. “The issuance of a license to applicant which would permit it to operate an additional plant, would tend to a destructive competition in a market already adequately served, and would not be in the public interest.” Denial of the license was sustained by the Court of Appeals over constitutional objections duly urged under the Commerce Clause and, because of the importance of the questions involved, we brought the case here by certiorari. Production and distribution of milk are so intimately related to public health and welfare that the need for regulation to protect those interests has long been recognized and is, from a constitutional standpoint, hardly controversial. Also, the economy of the industry is so eccentric that economic controls have been found at once necessary and difficult. These have evolved detailed, intricate and comprehensive regulations, including' price-fixing. They have been much litigated but were generally sustained by this Court as within the powers of the State over its internal commerce as against the claim that they violated the Fourteenth Amendment. Nebbia v. New York, 291 U. S. 502; Hegeman Farms Corp. v. Baldwin, 293 U. S. 163; Borden’s Co. v. Ten Eyck, 297 U. S. 251. But see Mayflower Farms v. Ten Eyck, 297 U. S. 266. As the states extended their efforts to control various phases of export and import also, questions were raised as to limitations on state power under the Commerce Clause of the Constitution. Pennsylvania enacted a law including provisions to protect producers which were very similar to those of this New York Act. A concern which operated a receiving-plant in Pennsylvania from which it shipped milk to the New York City market challenged the Act upon grounds thus defined by this Court: “The respondent contends that the act, if construed to require it to obtain a license, to file a bond for the protection of producers, and to pay the farmers the prices prescribed by the Board, unconstitutionally regulates and burdens interstate commerce.” Milk Board v. Eisenberg Co., 306 U. S. 346, 350. This Court, specifically limiting its judgment to the Act’s provisions with respect to license, bond and regulation of prices to be paid to producers, id. at 352, considered their effect on interstate commerce “incidental and not forbidden by the Constitution, in the absence of regulation by Congress.” Id. at 353. The present controversy begins where the Eisenberg decision left off. New York’s regulations, designed to assure producers a fair price and a responsible purchaser, and consumers a sanitary and modernly equipped handler, are not challenged here but have been complied with. It is only additional restrictions, imposed for the avowed purpose and with the practical effect of curtailing the volume of interstate commerce to aid local economic interests, that are in question here, and no such measures were attempted or such ends sought to be served in the Act before the Court in the Eisenberg case. Our decision in a milk litigation most relevant to the present controversy deals with the converse of the present situation. Baldwin v. Seelig, 294 U. S. 511. In that case, New York placed conditions and limitations on the local sale of milk imported from Vermont designed in practical effect to exclude it, while here its order proposes to limit the local facilities for purchase of additional milk so as to withhold milk from export. The State agreed then, as now, that the Commerce Clause prohibits it from directly curtailing movement of milk into or out of the State. But in the earlier case, it contended that the same result could be accomplished by controlling delivery, bottling and sale after arrival, while here it says it can do so by curtailing facilities for its purchase and receipt before it is shipped out. In neither case is the measure supported by health or safety considerations but solely by protection of local economic interests, such as supply for local consumption and limitation of competition. This Court unanimously rejected the State’s contention in the Seelig case and held that the Commerce Clause, even in the absence of congressional action, prohibits such regulations for such ends. The opinion was by Mr. Justice Cardozo, experienced in the milk problems of New York and favorably disposed toward the efforts of the State to control the industry. Hegeman Farms Corp. v. Baldwin, 293 U. S. 163; Borden’s Co. v. Baldwin, 293 U. S. 194, concurrence at 213; Mayflower Farms v. Ten Eyck, 297 U. S. 266, dissent at 274. It recognized, as do we, broad power in the State to protect its inhabitants against perils to health or safety, fraudulent traders and highway hazards, even by use of measures which bear adversely upon interstate commerce. But it laid repeated emphasis upon the principle that the State may not promote its own economic advantages by curtailment or burdening of interstate commerce. The Constitution, said Mr. Justice Cardozo for the unanimous Court, “was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” He reiterated that the economic objective, as distinguished from any health, safety and fair-dealing purpose of the regulation, was the root of its invalidity. The action of the State would “neutralize the economic consequences of free trade among the states.”* “Such a power, if exerted, will set a barrier to traffic between one state and another as effective as if customs duties, equal to the price differential, had been laid upon the thing transported.” “If New York, in order to promote the economic welfare of her farmers, may guard them against competition with the cheaper prices of Vermont, the door has been opened to rivalries and reprisals that were meant to be averted by subjecting commerce between the states to the power of the nation.” And again, “Neither the power to tax nor the police power may be used by the state of destination with the aim and effect of establishing an economic barrier against competition with the products of another state or the labor of its residents. Restrictions so contrived are an unreasonable clog upon the mobility of commerce. They set up what is equivalent to a rampart of customs duties designed to neutralize advantages belonging to the place of origin. They are thus hostile in conception as well as burdensome in result.” This distinction between the power of the State to shelter its people from menaces to their health or safety and from fraud, even when those dangers emanate from interstate commerce, and its lack of power to retard, burden or constrict the flow of such commerce for their economic advantage, is one deeply rooted in both our history and our law. When victory relieved the Colonies from the pressure for solidarity that war had exerted, a drift toward anarchy and commercial warfare between states began. “. . . each State would legislate according to its estimate of its own interests, the importance of its own products, and the local advantages or disadvantages of its position in a political or commercial view.” This came “to threaten at once the peace and safety of the Union.” Story, The Constitution, §§ 259, 260. See Fiske, The Critical Period of American History, 144; Warren, The Making of the Constitution, 567. The sole purpose for which Virginia initiated the movement which ultimately produced the Constitution was “to take into consideration the trade of the United States; to examine the relative situations and trade of the said States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony” and for that purpose the General Assembly of Virginia in January of 1786 named commissioners and proposed their meeting with those from other states. Documents, Formation of the Union, H. R. Doc. No. 398, 12 H. Docs., 69th Cong., 1st Sess., p. 38. The desire of the Forefathers to federalize regulation of foreign and interstate commerce stands in sharp contrast to their jealous preservation of the state's power over its internal affairs. No other federal power was so universally assumed to be necessary, no other state power was so readily relinquished. There was no desire to authorize federal interference with social conditions or legal institutions of the states. Even the Bill of Rights amendments were framed only as a limitation upon the powers of Congress. The states were quite content with their several and diverse controls over most matters but, as Madison has indicated, “want of a general power over Commerce led to an exercise of this power separately, by the States, wch [sic] not only proved abortive, but engendered rival, conflicting and angry regulations.” 3 Farrand, Records of the Federal Convention, 547. The necessity of centralized regulation of commerce among the states was so obvious and so fully recognized that the few words of the Commerce Clause were little illuminated by debate. But the significance of the clause was not lost and its effect was immediate and salutary. We are told by so responsible an authority as Mr. Jefferson’s first appointee to this Court that “there was not a State in the Union, in which there did not, at that time, exist a variety of commercial regulations; concerning which it is too much to suppose, that the whole ground covered by those regulations was immediately assumed by actual legislation, under the authority of the Union. But where was the existing statute on this subject, that a State attempted to execute? or by what State was it ever thought necessary to repeal those statutes? By common consent, those laws dropped lifeless from their statute books, for want of the sustaining power, that had been relinquished to Congress.” Gibbons v. Ogden, 9 Wheat. 1, concurring opinion at 226. The Commerce Clause is one of the most prolific sources of national power and an equally prolific source of conflict with legislation of the state. While the Constitution vests in Congress the power to regulate commerce among the states, it does not say what the states may or may not do in the absence of congressional action, nor how to draw the line between what is and what is not commerce among the states. Perhaps even more than by interpretation of its written word, this Court has advanced the solidarity and prosperity of this Nation by the meaning it has given to these great silences of the Constitution. Baldwin v. Seelig, 294 U. S. 511, is an explicit, impressive, recent and unanimous condemnation by this Court of economic restraints on interstate commerce for local economic advantage, but it does not stand alone. This Court consistently has rebuffed attempts of states to advance their own commercial interests by curtailing the movement of articles of commerce, either into or out of the state, while generally supporting their right to impose even burdensome regulations in the interest of local health and safety. As most states serve their own interests best by sending their produce to market, the cases in which this Court has been obliged to deal with prohibitions or limitations by states upon exports of articles of commerce are not numerous. However, in a leading case, Oklahoma v. Kansas Natural Gas Co., 221 U. S. 229, the Court denied constitutional validity to a statute by which Oklahoma, by regulation of gas companies and pipe lines, sought to restrict the export of natural gas. The Court held that when a state recognizes an article to be a subject of commerce, it cannot prohibit it from being a subject of interstate commerce; that the right to engage in interstate commerce is not the gift of a state, and that a state cannot regulate or restrain it. Later West Virginia, by act of the Legislature, undertook regulation of pipe-line companies intended to keep within West Virginia all natural gas there produced that might be required for local needs. This Court held that the State could not accord to its own consumers a preferred right of purchase over consumers in other states and in language applicable to the case before us now said, “Much of the business is interstate and has grown up through a course of years. West Virginia encouraged and sanctioned the development of that part of the business and has profited greatly by it. Her present effort, rightly understood, is to subordinate that part to the local business within her borders. In other words, it is in effect an attempt to regulate the interstate business to the advantage of the local consumers. But this she may not do.” Pennsylvania v. West Virginia, 262 U. S. 553, at 597, 598. In Foster Packing Co. v. Haydel, 278 U. S. 1, the Court cited these two cases as authority for the proposition that “A State is without power to prevent privately owned articles of trade from being shipped and sold in interstate commerce on the ground that they are required to satisfy local demands or because they are needed by the people of the State.” 278 U. S. 1, 10. The Court also pointed out that “the purpose [of the statute there involved] is not to retain the shrimp for the use of the people of Louisiana; it is to favor the canning of the meat and the manufacture of bran in Louisiana . . . .” Id., at 13. Thus in the Foster case, and in the companion case Johnson v. Haydel, 278 U. S. 16, although the articles sought to be regulated were shrimp and oysters, which under ordinary conditions might not be considered subjects of commerce, the Court invalidated state enactments attempting to promote local interests at the expense of interstate commerce. In Parker v. Brown, 317 U. S. 341, California's restrictions on sales of raisins within the State to those who were there processing and packing them were attacked as invalid because approximately 95% of the crop would find its way into interstate commerce after processing and packing. However, the Court said: “. . . no case has gone so far as to hold that a state could not license or otherwise regulate the sale of articles within the state because the buyer, after processing and packing them, will, in the normal course of business, sell and ship them in interstate commerce. . . . The regulation is thus applied to transactions wholly intrastate before the raisins are ready for shipment in interstate commerce.” 317 U. S. 341, at 361. This regulation of sale to local processors was distinguished from those which were held invalid in Lemke v. Farmers Grain Co., 258 U. S. 50, and Shafer v. Farmers Grain Co., 268 U. S. 189, because the regulation in the earlier cases was “of the business of those who purchaséd grain within the state for immediate shipment out of it.” Ibid. In those cases, the regulation was of interstate commerce itself. Another element in the Parker case which led the Court to sustain the California regulation was that it was one which the policy of Congress was to aid and encourage, and the Secretary of Agriculture had approved the State program by loans. The most recent case of this kind, Toomer v. Witsell, 334 U. S. 385, involved, among other things, a South Carolina requirement that the owners of shrimp boats fishing off its shores dock at a South Carolina port and unload, pack and stamp their catch with a tax stamp before shipping or transporting it to another state. It was considered that the effect of this section of the statute was to divert to South Carolina employment and business which might otherwise go to other states, and the Court pointed out that “the necessary tendency of the statute is to impose an artificial rigidity on the economic pattern of the industry.” 334 U. S. 385, 403-404. It was held that the Commerce Clause was violated by such a provision. This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy, including the vital power of erecting customs barriers against foreign competition, has as its corollary that the states are not separable economic units. As the Court said in Baldwin v. Seelig, 294 U. S. 541, 527, “what is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation.” In so speaking it but followed the principle that the state may not use its admitted powers to protect the health and safety of its people as a basis for suppressing competition. In Buck v. Kuykendall, 267 U. S. 307, the Court struck down a state act because, in the language of Mr. Justice Brandéis, “Its primary purpose is not regulation with a view to safety or to conservation of the highways, but the prohibition of competition.” The same argument here advanced, that limitation of competition would itself contribute to safety and conservation, and therefore indirectly serve an end permissible to the State, was there declared “not sound.” 267 U. S. 307, 315. It is no better here. This Court has not only recognized this disability of the state to isolate its own economy as a basis for striking down parochial legislative policies designed to do so, but it has recognized the incapacity of the state to protect its own inhabitants from competition as a reason for sustaining particular exercises of the commerce power of Congress to reach matters in which states were so disabled. Cf. Steward Machine Co. v. Davis, 301 U. S. 548; Carmichael v. Southern Coal Co., 301 U. S. 495; Helvering v. Davis, 301 U. S. 619. The material success that has come to inhabitants of the states which make up this federal free trade unit has been the most impressive in the history of commerce, but the established interdependence of the states only emphasizes the necessity of protecting interstate movement of goods against local burdens and repressions. We need only consider the consequences if each of the few states that produce copper, lead, high-grade iron ore, timber, cotton, oil or gas should decree that industries located in that state shall have priority. What fantastic rivalries and dislocations and reprisals would ensue if such practices were begun! Or suppose that the field of discrimination and retaliation be industry. May Michigan provide that automobiles cannot be taken out of that State until local dealers’ demands are fully met? Would she not have every argument in the favor of such a statute that can be offered in support of New York’s limiting sales of milk for out-of-state shipment to protect the economic interests of her competing dealers and local consumers? Could Ohio then pounce upon the rubber-tire industry, on which she has a substantial grip, to retaliate for Michigan’s auto monopoly? Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his exports, and no foreign state will by customs duties or regulations exclude them. Likewise, every consumer may look to the free competition from every producing area in the Nation to protect him from exploitation by any. Such was the vision of the Founders; such has been the doctrine of this Court which has given it reality. The State, however, insists that denial of the license for a new plant does not restrict or obstruct interstate commerce, because petitioner has been licensed at its other plants without condition or limitation as to the quantities it may purchase. Hence, it is said, all that has been denied petitioner is a local convenience — that of being able to buy and receive at Greenwich quantities of milk it is free to buy at Eagle Bridge and Salem. It suggests that, by increased efficiency or enlarged capacity at its other plants, petitioner might sufficiently increase its supply through those facilities. The weakness of this contention is that a buyer has to buy where there is a willing seller, and the peculiarities of the milk business necessitate location of a receiving and cooling station for nearby producers. The Commissioner has not made and there is nothing to persuade us that he could have made findings that petitioner can obtain such additional supplies through its existing facilities; indeed he found that “applicant has experienced some difficulty during the flush season because of the inability of the plant facilities to handle the milk by 9:00 a. m.,” the time its receipt is required by Boston health authorities unless it is cooled by the farmer before delivery, and a substantial part of it is not. But the argument also asks us to assume that the Commissioner’s order will not operate in the way he found that it would as a reason for making it. He found that petitioner, at its new plant, would divert milk from the plants of some other large handlers in the vicinity, which plants “can handle more milk.” This competition he did not approve. He also found it would tend to deprive local markets of needed supplies during the short season. In the face of affirmative findings that the proposed plant would increase petitioner’s supply, we can hardly be asked to assume that denial of the license will not deny petitioner access to such added supplies. While the state power is applied in this case to limit expansion by a handler of milk who already has been allowed some purchasing facilities, the argument for doing so, if sustained, would be equally effective to exclude an entirely new foreign handler from coming into the State to purchase. The State, however, contends that such restraint or obstruction as its order imposes on interstate commerce does not violate the Commerce Clause because the State regulation coincides with, supplements and is part of the federal regulatory scheme. This contention that Congress has taken possession of “the field” but shared it with the State, it is to be noted, reverses the contention usually made in comparable cases, which is that Congress has not fully occupied the field and hence the State may fill the void. Congress, as a part of its Agricultural Marketing Agreement Act, authorizes the Secretary of Agriculture to issue orders regulating the handling of several agricultural products, including milk, when they are within the reach of its commerce power. As to milk, it sets up, § 8c (5), 7 U. S. C. § 608c (5), a rather complicated system of fixing prices to be paid to producers through equalization pools which distribute the total value of all milk sold in a specified market among the producers supplying that market. This federal regulation was sustained and explained in United States v. Rock Royal Co-operative, 307 U. S. 533; H. P. Hood & Sons v. United States, 307 U. S. 588; see also Stark v. Wickard, 321 U. S. 288. Section 10 of the Federal Act also authorizes federal officials to engage in conferences, joint hearings and cooperation with the state authorities. New York State, in its present and antecedent statutes, has authorized its state authorities to confer with federal officials on milk control problems and a series of conferences and joint hearings have been held. The two authorities formalized their collaboration in 1938 by signing a “Memorandum of the Principles of Cooperation to be Observed in the Formulation and Administration of Complementary Orders for Milk for Marketing Areas Located Within the State of New York to be Issued Concurrently by the Secretary of Agriculture and the Commissioner of Agriculture and Markets.” But no federal approval or responsibility for the challenged features of this order appears in any of these provisions or arrangements. The “memorandum of the principles of cooperation” relates only to marketing areas in New York, while the marketing area served by Hood is entirely outside of New York and is controlled by Federal Order No. 4, applicable to the greater Boston market. Federal Order No. 27 is applicable to the New York metropolitan market and it is as to this order that the State of New York'is recognized by the memorandum as entitled to consultation. There is no such financial support as was given in Parker v. Brown, 317 U. S. 341. The Congressional regulation contemplates and permits a wide latitude in which the State may exercise its police power over the local facilities for handling milk. We assume, though it is not necessary to decide, that the Federal Act does not preclude a state from placing restrictions and obstructions in the way of interstate commerce for the ends and purposes always held permissible under the Commerce Clause. But here the challenge is only to a denial of facilities for interstate commerce upon the sole and specific grounds that it will subject others to competition and take supplies needed locally, an end, as we have shown, always held to be precluded by the Commerce Clause. We have no doubt that Congress in the national interest could prohibit or curtail shipments of milk in interstate commerce, unless and until local demands are met. Nor do we know of any reason why Congress may not, if it deems it in the national interest, authorize the states to place similar restraints on movement of articles of commerce. And the provisions looking to state cooperation may be sufficient to warrant the state in imposing regulations approved by the federal authorities, even if they otherwise might run counter to the decisions that coincidence is as fatal as conflict when Congress acts. See Bethlehem, Steel Co. v. New York State Labor Relations Board, 330 U. S. 767. It is, of course, a quite different thing if Congress through its agents finds such restrictions upon interstate commerce advance the national welfare, than if a locality is held free to impose them because it, judging its own cause, finds them in the interest of local prosperity. When it is considered that the Federal Act was passed expressly to overcome “disruption of the orderly exchange of commodities in interstate commerce” and conditions found to “burden and obstruct the normal channels of interstate commerce,” 7 U. S. C. § 601, it seems clear that we can not sustain the State’s argument that its restrictions here involved supplement and further the federal scheme. Moreover, we can hardly assume that the challenged provisions of this order advance the federal scheme of regulation because Congress forbids inclusion of such a policy in a federal milk order. Section 8c (5) (G) of the Act provides: “No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, in the case of the products of milk, the marketing in that area of any milk or product thereof produced in any production area in the United States.” While there may be difference of opinion as to whether this authorizes the Federal Order to limit, so long as it does not prohibit, interstate shipment of milk, see Bailey Farm Dairy Co. v. Anderson, 157 F. 2d 87, 96; Bailey Farm Dairy Co. v. Jones, 61 F. Supp. 209, 221 — a question upon which we express no opinion — it is clear that the policy of the provision is inconsistent with the State’s contention that it may, in its own interest, impose such a limitation as a coincident or supplement to federal regulation. The only federal restriction of handlers’ purchases from new producers, found in §8c(5) (B), authorizes inclusion, in orders concerning milk or milk products, of a clause providing that for deliveries made during the first sixty days a new producer shall be paid only the minimum price applicable for milk of the particular use classification, subject to adjustments not relevant here. This provision was included in the 1935 amendment, “to prevent assaults upon the price structure by the sporadic importation of milk from new producing areas, while permitting the orderly and natural expansion of the area supplying any market . . . .” S. Rep. No. 1011, 74th Cong., 1st Sess., p. 11. And, it was added, “this is the only limitation upon the entry of new producers — wherever located — into a market, and it can remain effective only for the specified . . . period.” Ibid. The bill originally provided for a ninety-day minimum price period but in conference the less restrictive sixty-day period was adopted. H. R. Rep. No. 1757, 74th Cong., 1st Sess., p. 21. These sections and reports indicate that it is the deliberate policy of the Congress to prevent federal officers from placing barriers in the way of the interstate flow of milk. While a statutory prohibition against federal interference with certain phases of it may not always imply that the state too is precluded, it is obvious that a state limitation on export for the benefit of its own consumers is not authorized by this Federal Act. The purpose as expressed in § 1, 7 U. S. C. § 601, is to avoid conditions which burden and obstruct the normal channels of interstate commerce. The object of the federal program to raise and stabilize the price of products was to stimulate interstate commerce. The order of the Commissioner avows itself to have the opposite effect. It can claim neither federal sponsorship nor congressional sanction. Since the statute as applied violates the Commerce Clause and is not authorized by federal legislation pursuant to that Clause, it cannot stand. The judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion. It is so ordered. The New York Court of Appeals described the geographical situation with respect to petitioner’s present and proposed plants as follows: “The extension would have permitted petitioner to operate a milk receiving plant at Greenwich, New York, in addition to petitioner’s other similar plants already licensed and operating at Eagle Bridge, Salem and Norfolk, in this State. Eagle Bridge is in Rensselaer County and Salem and Greenwich are in Washington County, Rensselaer County being adjacent to Washington County on the south, and both these counties being on the easterly edge of New York State, bordering on Massachusetts and Vermont. Petitioner’s Norfolk establishment is in St. Lawrence County in another part of New York State, and serves a different area and a different group of milk producers. The present Eagle Bridge and Salem depots, however, are quite close together and the proposed Greenwich plant, for which a license has been refused, is ten miles from Salem and twelve miles from Eagle Bridge.” 297 N. Y. 209, 212; 78 N. E. 2d 476, 477. Laws of 1934, c. 126. Section 258-c provides in pertinent part as follows: “No license shall be granted to a person not now engaged in business as a milk dealer except for the continuation of a now existing business, and no license shall be granted to authorize the extension of an existing business by the operation of an additional plant or other new or additional facility, unless the commissioner is satisfied that the applicant is qualified by character, experience, financial responsibility and equipment to properly conduct the proposed business, that the issuance of the license will not tend to a destructive competition in a market already adequately served, and that the issuance of the license is in the public interest. . . .” This finding follows the statutory language. See Note 3. 297 N. Y. 209, 78 N. E. 2d 476. U. S. Const., Art. I, §8, cl. 3, granting Congress power “To regulate Commerce . . . among the several States ...” 335 U. S. 808. “. . . nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Court said: “The Commonwealth [of Pennsylvania] does not essay to regulate or to restrain the shipment of the respondent’s milk into New York 306 U. S. 346, 352. 294 U. S. 511,523. Id., 526. Id., 521. Id., 522. Id., 527. Act of June 3, 1937, c. 296, 50 Stat. 246, as amended, 7 U. S. C. § 601 et seq. 7 U. S. C. § 610 (i). See Laws of 19 Question: What state is associated with the respondent? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:

sc_casedisposition

D

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. MARTIN, SECRETARY OF LABOR v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION et al. No. 89-1541. Argued November 27, 1990 Decided March 20, 1991 Marshall, J., delivered the opinion for a unanimous Court. Clifford, M. Sloan argued the cause for petitioner. With him on the briefs were Solicitor General Starr, Deputy Solicitor General Shapiro, Allen H. Feldman, and Mark S. Flynn. John D. Faught argued the cause for respondent CF&I Steel Corp. With him on the brief were Randy L. Segó and Michael W. Coriden. George H. Cohen, Jeremiah A. Collins, and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for nominal respondent Occupational Safety and Health Review Commission by Robert C. Gombar, Glen D. Nager, and Earl R. Oilman, Jr.; for the American Iron and Steel Institute by Albert J. Beveridge III and Barton C. Green; for the Chamber of Commerce of the United States of America et al. by Stephen A. Bokat and Robin S. Conrad; and for the National Association of Manufacturers et al. by W. Scott Railton, Jan S. Amundson, Quentin Riegel, and William H. Crabtree. Justice Marshall delivered the opinion of the Court. In this case, we consider the question to whom should a reviewing court defer when the Secretary of Labor and the Occupational Safety and Health Review Commission furnish reasonable but conflicting interpretations of an ambiguous regulation promulgated by the Secretary under the Occupational Safety and Health Act of 1970, 84 Stat. 1590, as amended, 29 U. S. C. §651 et seq. The Court of Appeals concluded that it should defer to the Commission’s interpretation under such circumstances. We reverse. I — I <J The Occupational Safety and Health Act of 1970 (OSH Act or Act) establishes a comprehensive regulatory scheme designed “to assure so far as possible . . . safe and healthful working conditions” for “every working man and woman in the Nation.” 29 U. S. C. § 651(b). See generally Atlas Roofing Co. v. Occupational Safety and Health Review Comm’n, 430 U. S. 442, 444-445 (1977). To achieve this objective, the Act assigns distinct regulatory tasks to two different administrative actors: the Secretary of Labor (Secretary); and the Occupational Safety and Health Review Commission (Commission), a three-member board appointed by the President with the advice and consent of the Senate. 29 U. S. C. §§ 651(b)(3), 661. The Act charges the Secretary with responsibility for setting and enforcing workplace health and safety standards. See Cuyahoga Valley R. Co. v. United Transportation Union, 474 U. S. 3, 6-7 (1985) (per curiam). The Secretary establishes these standards through the exercise of rulemaking powers. See 29 U. S. C. § 665. If the Secretary (or the Secretary’s designate) determines upon investigation that an employer is failing to comply with such a standard, the Secretary is authorized to issue a citation and to assess the employer a monetary penalty. §§658-659, 666. The Commission is assigned to “carr[y] out adjudicatory functions” under the Act. § 651(b)(3). If an employer wishes to contest a citation, the Commission must afford the employer an evidentiary hearing and “thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary’s citation or proposed penalty.” § 659(c). Initial decisions are made by an administrative law judge (ALJ), whose ruling becomes the order of the Commission unless the Commission grants discretionary review. §661(j). Both the employer and the Secretary have the right to seek review of an adverse Commission order in the court of appeals, which must treat as “conclusive” Commission findings of fact that are “supported by substantial evidence.” §660(a)-(b). B This case arises from the Secretary’s effort to enforce compliance with OSH Act standards relating to coke-oven emissions. Promulgated pursuant to the Secretary’s rulemaking powers, these standards establish maximum permissible emissions levels and require the use of employee respirators in certain circumstances. See 29 CFR §1910.1029 (1990). An investigation by one of the Secretary’s compliance officers revealed that respondent CF&I Steel Corporation (CF&I) had equipped 28 of its employees with respirators that failed an “atmospheric test” designed to determine whether a respirator provides a sufficiently tight fit to protect its wearer from carcinogenic emissions. As a result of being equipped with these loose-fitting respirators, some employees were exposed to coke-oven emissions exceeding the regulatory limit. Based on these findings, the compliance officer issued a citation to CF&I and assessed it a $10,000 penalty for violating 29 CFR § 1910.1029(g)(3) (1990), which requires an employer to “institute a respiratory protection program in accordance with § 1910.134.” CF&I contested the citation. The ALJ sided with the Secretary, but the full Commission subsequently granted review and vacated the citation. See CF&I, 12 OSHC 2067 (1986). In the Commission’s view, the “respiratory protection program” referred to in § 1910.1029(g)(3) expressly requires only that an employer train employees in the proper use of respirators; the obligation to assure proper fit of an individual employee’s respirator, the Commission noted, was expressly stated in another regulation, namely, § 1910.1029(g)(4)(i). See 12 OSHC, at 2077-2078. Reasoning, inter alia, that the Secretary’s interpretation of §.1910.1029(g)(3) would render §1910.1029 (g)(4) superfluous, the Commission concluded that the facts alleged in the citation and found by the ALJ did not establish a violation of § 1910.1029(g)(3). See 12 OSHC, at 2078-2079. Because § 1910.1029(g)(3) was the only asserted basis for liability, the Commission vacated the citation. See id., at 2079. The Secretary petitioned for review in the Court of Appeals for the Tenth Circuit, which affirmed the Commission’s order. See Dole v. Occupational Safety and Health Review Commission, 891 F. 2d 1495 (1989). The court concluded that the relevant regulations were ambiguous as to the employer’s obligation to assure proper fit of an employee’s respirator. The court thus framed the issue before it as whose reasonable interpretation of the regulations, the Secretary’s or the Commission’s, merited the court’s deference. See id., at 1497. The court held that the Commission’s interpretation was entitled to deference under such circumstances, reasoning that Congress had intended to delegate to the Commission “the normal complement of adjudicative • powers possessed by traditional administrative agencies” and that “[s]uch an adjudicative function necessarily encompasses the power to ‘declare’ the law.” Id., at 1498. Although the court determined that it would “certainly [be] possible to reach an alternate interpretation of the ambiguous regulatory language,” the court nonetheless concluded that the Commission’s interpretation was a reasonable one. Id., at 1500. The court therefore deferred to the Commission’s interpretation without assessing the reasonableness of the Secretary’s competing view. See ibid. The Secretary thereafter petitioned this Court for a writ of certiorari. We granted the petition in order to resolve a conflict among the Circuits on the question whether a reviewing court should defer to the Secretary or to the Commission when these actors furnish reasonable but conflicting interpretations of an ambiguous regulation under the OSH Act. 497 U. S. 1002 (1990). I — I l — l It is well established “that an agency s construction of its own regulations is entitled to substantial deference.” Lyng v. Payne, 476 U. S. 926, 989 (1986); accord, Udall v. Tallman, 380 U. S. 1, 16-17 (1965). In situations in which “the meaning of [regulatory] language is not free from doubt,” the reviewing court should give effect to the agency’s interpretation so long as it is “reasonable,” Ehlert v. United States, 402 U. S. 99, 105 (1971), that is, so long as the interpretation “sensibly conforms to the purpose and wording of the regulations,” Northern Indiana Pub. Serv. Co. v. Porter County Chapter of Izaak Walton League of America, Inc., 423 U. S. 12, 15 (1975). Because applying an agency’s regulation to complex or changing circumstances calls upon the agency’s unique expertise and policymaking prerogatives, we presume that the power authoritatively to interpret its own regulations is a component of the agency’s delegated lawmaking powers. See Ford Motor Credit Co. v. Milhollin, 444 U. S. 555, 566, 568 (1980). The question before us in this case is to which administrative actor — the Secretary or the Commission — did Congress delegate this “interpretive” lawmaking power under the OSH Act. To put this question in perspective, it is necessary to take account of the unusual regulatory structure established by the Act. Under most regulatory schemes, rulemaking, enforcement, and adjudicative powers are combined in a single administrative authority. See, e. g., 15 U. S. C. §41 et seq. (Federal Trade Commission); 15 U. S. C. §§77s-77u (Securities and Exchange Commission); 47 U. S. C. § 151 et seq. (Federal Communications Commission). Under the OSH Act, however, Congress separated enforcement and rulemaking powers from adjudicative powers, assigning these respective functions to two different administrative authorities. The purpose of this “split enforcement” structure was to achieve a greater separation of functions than exists within the traditional “unitary” agency, which under the Administrative Procedure Act (APA) generally must divide enforcement and adjudication between separate personnel, see 5 U. S. C. § 554(d). See generally Johnson, The Split-Enforcement Model: Some Conclusions from the OSHA and MSHA Experiences, 39 Admin. L. Rev. 315, 317-319 (1987). This is not the first time that we have been called upon to resolve an OSH Act “jurisdictional” dispute between the Secretary and the Commission. See Cuyahoga Valley R. Co. v. United Transportation Union, 474 U. S., at 3. At issue in Cuyahoga Valley was whether the Commission could conduct an administrative adjudication notwithstanding the Secretary’s motion to vacate the citation. We held that the Commission had no such power. We noted that “enforcement of the Act is the sole responsibility of the Secretary” and concluded that “[a] necessary adjunct of that power is the authority to withdraw a citation and enter into settlement discussions with the employer.” Id., at 6-7. The Commission’s role as “neutral arbiter,” we explained, “plainly does not extend to overturning the Secretary’s decision not to issue or to withdraw a citation.” Id., at 7. Although the Act does not expressly address the issue, we now infer from the structure and history of the statute, see id., at 6-7, that the power to render authoritative interpretations of OSH Act regulations is a “necessary adjunct” of the Secretary’s powers to promulgate and to enforce national health and safety standards. The Secretary enjoys readily identifiable structural advantages over the Commission in rendering authoritative interpretations of OSH Act regulations. Because the Secretary promulgates these standards, the Secretary is in a better position than is the Commission to reconstruct the purpose of the regulations in question. Moreover, by virtue of the Secretary’s statutory role as enforcer, the Secretary comes into contact with a much greater number of regulatory problems than does the Commission, which encounters only those regulatory episodes resulting in contested citations. Cf. Note, Employee Participation in Occupational Safety and Health Review Commission Proceedings, 85 Colum. L. Rev. 1317, 1331, and n. 90 (1985) (reporting small percentage of OSH Act citations contested between 1979 and 1985). Consequently, the Secretary is more likely to develop the expertise relevant to assessing the ef-feet of a particular regulatory interpretation. Because historical familiarity and policymaking expertise account in the first instance for the presumption that Congress delegates interpretive lawmaking power to the agency rather than to the reviewing court, see, e. g., Mullins Coal Co. v. Director, Office of Workers’ Compensation Programs, 484 U. S. 135, 159 (1987); Ford Motor Credit Co. v. Milhollin, supra, at 566; INS v. Stanisic, 395 U. S. 62, 72 (1969), we presume here that Congress intended to invest interpretive power in the administrative actor in the best position to develop these attributes. The legislative history of the OSH Act supports this conclusion. The version of the Act originally passed by the House of Representatives vested adjudicatory power in the Commission and rulemaking power in an independent standards board, leaving the Secretary with only enforcement power. 116 Cong. Rec. 38716 (1970), reprinted in Legislative History of the Occupational Safety and Health Act of 1970 (S. 2193, Pub. L. 91-596) (Committee Print prepared by the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare), pp. 1094-1096 (1971) (Legislative History). The Senate version dispensed with the standards board and established the division of responsibilities that survives in the enacted legislation. The Senate Committee Report explained that combining legislative and enforcement powers in the Secretary would result in “a sounder program” because it would make a single administrative actor responsible both for “formulating] rules . . . and for seeing that they are workable and effective in their day-to-day application,” and would allow Congress to hold a single administrative actor politically “accountable for the overall implementation of that program.” S. Rep. No. 91-1282, p. 8 (1970), reprinted in Legislative History 148. Because dividing the power to promulgate and enforce OSH Act standards from the power to make law by interpreting them would make two administrative actors ultimately responsible for implementing the Act’s policy objectives, we conclude that Congress did not expect the Commission to possess authoritative interpretive powers. For the same reason, we reject the Court of Appeals’ inference that Congress intended “to endow the Commission with the normal complement of adjudicative powers possessed by traditional administrative agencies.” 891 F. 2d, at 1498 (emphasis added). Within traditional agencies — that is, agencies possessing a unitary structure — adjudication operates as an appropriate mechanism not only for factfinding, but also for the exercise of delegated lawmaking powers, including lawmaking by interpretation. See NLRB v. Bell Aerospace Co., 416 U. S. 267, 292-294 (1974); SEC v. Chenery Corp., 332 U. S. 194, 201-203 (1947). But in these cases, we concluded that agency adjudication is a generally permissible mode of lawmaking and policymaking only because the unitary agencies in question also had been delegated the power to make law and policy through rulemak-ing. See Bell Aerospace, supra, at 292-294; Chenery Corp., supra, at 202-203. See generally Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv. L. Rev. 921 (1965). Insofar as Congress did not invest the Commission with the power to make law or policy by other means, we cannot infer that Congress expected the Commission to use its adjudicatory power to play a policymaking role. Moreover, when a traditional, unitary agency uses adjudication to engage in lawmaking by regulatory interpretation, it necessarily interprets regulations that it has promulgated. This, too, cannot be said of the Commission’s power to adjudicate. Consequently, we think the more plausible inference is that Congress intended to delegate to the Commission the type of nonpolicymaking adjudicatory powers typically exercised by a court in the agency-review context. Under this conception of adjudication, the Commission is authorized to review the Secretary’s interpretations only for consistency with the regulatory language and for reasonableness. In addition, of course, Congress expressly charged the Commission with making authoritative findings of fact and with applying the Secretary’s standards to those facts in making a decision. See 29 U. S. C. § 660(a) (Commission’s factual findings “shall be conclusive” so long as “supported by substantial evidence”). The Commission need be viewed as possessing no more power than this in order to perform its statutory role as “neutral arbiter.” See Cuyahoga Valley, 474 U. S., at 7. CF&I draws a different conclusion from the history and structure of the Act. Congress, CF&I notes, established the Commission in response to concerns that combining, rulemaking, enforcement, and adjudicatory power in the Secretary would leave employers unprotected from regulatory bias. Construing the Act to separate enforcement and interpretive powers is consistent with this purpose, CF&I argues, because it protects regulated employers from biased prosecutorial interpretations of the Secretary’s regulations. Indeed, interpretations furnished in the course of administrative penalty actions, according to CF&I, are mere “litigating positions,” undeserving of judicial deference under our precedents. See, e. g., Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212 (1988). Although we find these concerns to be important, we think that they are overstated. It is clear that Congress adopted the split-enforcement structure in the OSH Act in order to achieve a greater separation of functions than exists in a conventional unitary agency. See S. Rep. No. 91-1282, supra, at 56, reprinted in Legislative History 195 (individual views of Sen. Javits) (noting that adjudication by independent panel goes beyond division of functions under the APA but defending split-enforcement structure as “more closely [in] accor[d] with traditional notions of due process”). But the conclusion that the Act should therefore be understood to separate enforcement powers from authoritative interpretive powers begs the question just how much Congress intended to depart from the unitary model. Sponsors of the Commission purported to be responding to the traditional objection that an agency head’s participation in or supervision of agency investigations results in biased review of the decisions of the hearing officer, notwithstanding internal separations within the agency. See ibid. See generally 3 K. Davis, Administrative Law Treatise § 18.8, pp. 369-370 (2d ed. 1980). Vesting authoritative factfinding and ALJ-review powers in the Commission, an administrative body wholly independent of the administrative enforcer, dispels this concern. We harbor no doubt that Congress also intended to protect regulated parties from biased interpretations of the Secretary’s regulations. But this objective is achieved when the Commission, and ultimately the court of appeals, review the Secretary’s interpretation to assure that it is consistent with the regulatory language and is otherwise reasonable. Giving the Commission the power to substitute its reasonable interpretations for the Secretary’s might slightly increase regulated parties’ protection from overzealous interpretations. But it would also clearly frustrate Congress’ intent to make a single administrative actor “accountable for the overall implementation” of the Act’s policy objectives by combining legislative and enforcement powers in the Secretary. S. Rep. No. 91-1282, p. 8, reprinted in Legislative History 148. We are likewise unpersuaded by the contention that the Secretary’s interpretations of regulations will necessarily appear in forms undeserving of judicial deference. Our decisions indicate that agency “litigating positions” are not entitled to deference when they are merely appellate counsel’s “post hoc rationalizations” for agency action, advanced for the first time in the reviewing court. See Bowen v. Georgetown Univ. Hospital, supra, at 212; Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168 (1962). Because statutory and regulatory interpretations furnished in this setting occur after agency proceedings have terminated, they do not constitute an exercise of the agency’s delegated lawmaking powers. The Secretary’s interpretation of OSH Act regulations in an administrative adjudication, however, is agency action, not a post hoc rationalization of it. Moreover, when embodied in a citation, the Secretary’s interpretation assumes a form expressly provided for by Congress. See 29 U. S. C. § 658. Under these circumstances, the Secretary’s litigating position before the Commission is as much an exercise of delegated lawmaking powers as is the Secretary’s promulgation of a workplace health and safety standard. In addition, the Secretary regularly employs less formal means of interpreting regulations prior to issuing a citation. These include the promulgation of interpretive rules, see, e. g., Marshall v. W and W Steel Co., 604 F. 2d 1322, 1325-1326 (CA10 1979); cf. Whirlpool Corp. v. Marshall, 445 U. S. 1, 11 (1980), and the publication of agency enforcement guidelines, see United States Department of Labor, OSHA Field Operations Manual (3d ed. 1989). See generally S. Bokat & H. Thompson, Occupational Safety and Health Law 658-660 (1988). Although not entitled to the same deference as norms that derive from the exercise of the Secretary’s delegated lawmaking powers, these informal interpretations are still entitled to some weight on judicial review. See Batterton v. Francis, 432 U. S. 416, 425-426, and n. 9 (1977); Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944); Whirlpool, supra, at 11. A reviewing court may certainly consult them to determine whether the Secretary has consistently applied the interpretation embodied in the citation, a factor bearing on the reasonableness of the Secretary’s position. See Ehlert v. United States, 402 U. S., at 105. III We emphasize the narrowness of our holding. We deal in this case only with the division of powers between the Secretary and the Commission under the OSH Act. We conclude from the available indicia of legislative intent that Congress did not intend to sever the power authoritatively to interpret OSH Act regulations from the Secretary’s power to promulgate and enforce them. Subject only to constitutional limits, Congress is free, of course, to divide these powers as it chooses, and we take no position on the division of enforcement and interpretive powers within other regulatory schemes that conform to the split-enforcement structure. Nor should anything we say today be understood to bear on whether particular divisions of enforcement and adjudicative power within a unitary agency comport with § 554(d) of the APA. In addition, although we hold that a reviewing court may not prefer the reasonable interpretations of the Commission to the reasonable interpretations of the Secretary, we emphasize that the reviewing court should defer to the Secretary only if the Secretary’s interpretation is reasonable. The Secretary’s interpretation of an ambiguous regulation is subject to the same standard of substantive review as any other exercise of delegated lawmaking power. See 5 U. S. C. §706(2)(A); Batterton v. Francis, supra, at 426. As we have indicated, the Secretary’s interpretation is not undeserving of deference merely because the Secretary advances it for the first time in an administrative adjudication. But as the Secretary’s counsel conceded in oral argument, Tr. of Oral Arg. 18-19, 20-21, the decision to use a citation as the initial means for announcing a particular interpretation may bear on the adequacy of notice to regulated parties, see Bell Aerospace, 416 U. S., at 295; Bowen v. Georgetown Univ. Hospital, 488 U. S., at 220 (Scalia, J., concurring), on the quality of the Secretary’s elaboration of pertinent policy considerations, see Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983), and on other factors relevant to the reasonableness of the Secretary’s exercise of delegated lawmaking powers. CF&I urges us to hold that the Secretary unreasonably interpreted 29 CFR § 1910.1029(g)(3) (1990) in this case. However, because the Court of Appeals deferred to the Commission’s interpretation, it had no occasion to address the reasonableness of the Secretary’s interpretation. Rather than consider this issue for the first time ourselves, we leave the issue for resolution on remand. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. The Secretary has delegated certain statutory responsibilities to the Assistant Secretary for Occupational Safety and Health, who heads the Occupational Safety and Health Administration. See Secretary of Labor’s Order No. 12-71, 36 Fed. Reg. 8754 (1971); Order No. 8-76, 41 Fed. Reg. 25059 (1976); Order No. 9-83, 48 Fed. Reg. 35736 (1983). “For safe use of any respirator, it is essential that the user be properly instructed in its selection, use, and maintenance. Both supervisors and workers shall be so instructed by competent persons. Training shall provide the men an opportunity to handle the respirator, have it fitted properly, test its face-piece-to-face seal, wear it in normal air for a long familiarity period, and, finally, to wear it in a test atmosphere.” 29 CFR § 1910.134(e)(5) (1990). This regulation states in pertinent part: “Respirator usage, (i) The employer shall assure that the respirator issued to the employee exhibits minimum facepiece leakage and that the respirator is fitted properly.” § 1910.1029. According to the Commission, the compliance officer who issued the citation “acknowledged that [§ 1910.1029(g)(4)(i)] applied,” and “that he might have cited the wrong standard.” CF&I, 12 OSHC 2067, 2078 (1986). Compare Brock v. Williams Enterprises of Georgia, Inc., 832 F. 2d 567, 569-570 (CA11 1987) (deference to Secretary); United Steelworkers of America v. Schuylkill Metals Corp., 828 F. 2d 314, 319 (CA5 1987) (same); and Donovan v. A. Amorello & Sons, Inc., 761 F. 2d 61, 65-66 (CA1 1985) (same), with Brock v. Cardinal Industries, Inc., 828 F. 2d 373, 376, n. 4 (CA6 1987) (deference to Commission); Brock v. Bechtel Power Corp., 803 F. 2d 999, 1000-1001 (CA9 1986) (same); and Marshall v. Western Electric, Inc., 565 F. 2d 240, 244 (CA2 1977) (same). The parties do not challenge the Court of Appeals’ conclusion that the regulations at issue in this case are ambiguous. We assume that this conclusion is correct for purposes of our analysis. Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:

songer_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". ILLINOIS STATE TRUST COMPANY, a Corporation, Guardian of the Estate of Daniel David Land, a Minor, and Arthur Land, Plaintiff-Appellants, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Defendant-Appellee. No. 18534. United States Court of Appeals, Seventh Circuit. March 10, 1971. Rehearing Denied April 5, 1971. William B. Starnes, Karns, Starnes, Nester & Stegmeyer, Belleville, Ill., for plaintiffs-appellants. Norman J. Gundlach, Roberts, Gundlach & Lee, Belleville, Ill., for defendant-appellee. Before SWYGERT, Chief Judge, CUMMINGS and STEVENS, Circuit Judges. SWYGERT, Chief Judge. This is an appeal from the granting of defendant’s motion for a directed verdict at the close of plaintiffs’ evidence and the judgment entered thereon in a personal injury action removed to the district court pursuant to 28 U.S.C. § 1441(a) on the ground of diversity of citizenship, the jurisdictional amount-in-controversy requirement having been met. The cause of action arose out of an accident which occurred at the crossing of a public road over defendant’s railroad right-of-way in Cahokia, Illinois, in which a young boy fell under the wheels of a railroad car while attempting to “hop a ride” on defendant’s train, suffering serious injuries. The facts before the trial court upon which the directed verdict was predicated are as follows. On March 30, 1969, David Land, then seven years of age, and Jimmy Bell, his friend of the same age, decided while playing together to ride Jimmy’s bicycle to a service station in Cahokia “to get a drink.” The two boys then set out for the Cargill Road railroad crossing nearby “to hunt for flares” — that is, to search the tracks for the red pyrotechnic flares sometimes used and carried by railroad men for signalling purposes. The boys were accompanied by “Snoopy,” the Land family’s dog. Jimmy hid his bicycle in the brush, and the two boys walked to the crossing. While they were drawing near to the crossing, defendant’s train came to the crossing and stopped for about a minute so that a switch could be operated by the conductor to properly align the tracks for proceeding in the intended direction. The train then started up again. The two boys were apparently unobserved by any of the train crewmen at that time, although the engineer testified he saw one boy and a dog some distance from the tracks after the train was entirely past the crossing. As the train was passing through the crossing, Jimmy Bell climbed on a ladder at the rear of one boxcar. David Land then attempted to climb on a ladder at the front of the car immediately behind the one Jimmy was riding, but, as David attempted to board the train, “Snoopy,” the dog, barked and jumped at the boy causing him to trip. David fell beneath a railroad car within a few feet of the crossing and suffered serious injuries to his left leg and right foot. Also before the court was testimony that children had found partially burned flares along the tracks and had been given flares by railroad crewmen from time to time. Several children testified that if they stood near defendant’s tracks at the crossing and elsewhere and called to the crewmen to throw them some flares, their efforts were rewarded more often than not by compliance with their requests. They further testified that the flares were sometimes thrown to them from the engine but more often came from the caboose. There was also testimony that children had hopped rides on trains at the crossing and elsewhere. However, there was no testimony that any of the crewmen on the train involved in this accident had ever given away flares or observed children hopping rides on trains in or near Cahokia. Two crewmen testified that they had observed children playing in the vicinity of the Cargill Road crossing — indeed, the switchman had reported that fact to his supervisor — but there is nothing in the record to indicate that the railroad had knowledge of any fact which would indicate that the Cargill Road crossing was particularly dangerous or that children were playing on the tracks or dangerously close thereto. Plaintiffs raise two issues on this appeal: (1) did the district court err in denying their motion to remand the cause to the state court from which it was removed and (2) did the district court err in granting defendant’s motion for a directed verdict, considering the foregoing evidence? We affirm the decision of the district court as to both issues. I Plaintiffs contend that the district court should have granted their motion to remand the action to the state court from which it was removed because diversity of citizenship between the parties was lacking; hence the district court was without subject' matter jurisdiction. This argument is based on the theory that defendant was a citizen of Illinois for diversity purposes as are all of the plaintiffs. We agree with the district court that the defendant is a citizen of Missouri and that the motion to remand was without merit. Pursuant to 28 U.S.C. § 1332(c), a corporation, for purposes of diversity jurisdiction, is a citizen of both the state of its incorporation and the state which is the situs of its principal place of business. The evidence shows that the defendant is a Missouri corporation, that its general offices and headquarters are located in Missouri, that its shareholders and board of directors hold all of their meetings in Missouri, that the vast majority of its officers have their offices in Missouri, that all its basic corporate records are kept in Missouri, that all its tax returns are prepared in and filed from Missouri, and that all its banking is conducted in Missouri. It is thus clear that Missouri is the only state of defendant’s citizenship, despite the defendant’s extensive operations in Illinois. Celanese Corp. of America v. Vandalia Warehouse Corp., 424 F.2d 1176 (7th Cir. 1970); Sabo v. Standard Oil Co., 295 F.2d 893 (7th Cir. 1961). II Plaintiffs further contend that the trial court’s direction of the verdict against them was erroneous. Although there is disagreement among the circuits as to whether a federal standard for direction of verdicts or a state standard applies in diversity cases, e. g., Boeing Co. v. Shipman, 411 F.2d 365, 368 n. 2 (5th Cir. 1969), it is settled that in this circuit the applicable state standard applies. Wieloch v. Rogers Cartage Co., 290 F.2d 235, 237-238 (7th Cir. 1961). It is undisputed that Illinois law governs this cause of action, and the Illinois standard for direction of verdicts has recently been clarified. As the Illinois Supreme Court stated in Pedrick v. Peoria & E. R. R., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-514 (1967): In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those eases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. Our inquiry thus is directed to a determination of whether a verdict for plaintiffs based on the evidence stated above “viewed in its aspect most favorable to [plaintiffs] * * * could ever stand.” Id. The claims of the plaintiffs in the instant case are in the nature of what are usually characterized as attractive nuisance cases. However, as the Illinois Supreme Court has recognized: The naming or labeling of a certain set of facts as being an “attractive nuisance” case or a “turntable” case has often led to undesirable conclusions. The inclination is then to find a stare decisis pigeonhole or category. The difficulty in such a procedure is that too often the result of such a search is the reaching of irreconcilable conclusions. Kahn v. James Burton Co., 5 Ill.2d 614, 624, 126 N.E.2d 836, 841 (1955). We must, therefore, adhere to the instruction of the Illinois court that “the only proper basis for decision in such cases dealing with personal injuries to children are [sic] the customary rules of ordinary negligence cases.” Id. The court further stated: [W]here the owner or person in possession [of land] knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the situation is slight compared to the risk to the children * * * there is a duty upon the owner or other person in control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. Id. at 625, 126 N.E.2d at 842. Applying these principles to the facts in this case we agree with the district court that, construing the evidence in the manner most favorable to the plaintiffs, no verdict for plaintiffs could stand based on the submitted evidence. Principal among the reasons which have led to this conclusion is the fact that we have not discovered any postKahn Illinois case which has held an owner or possessor of land liable where the immediate cause of the injury to a child has not been either the attracting agency itself or some negligence chargeable to the defendant other than the negligence inherent in the creation or tolerance of the attraction which resulted in the child’s presence. Indeed, the language of the decision of the Illinois Appellate Court in Henry v. Robert Kettell Constr. Corp., 44 Ill.App.2d 356, 194 N.E.2d 535 (2d Dist. 1963), expressly recognized the necessity of more than mere attraction of and injury to a child to impose liability on the owner or possessor of land therefor when it said: Realistically the doctrine of “attractive nuisance” serves only one purpose and that is in regard to the status of the infant on the premises. Once an infant of tender years because of his immature judgment and inability to appreciate certain conditions is attracted and allured to the premises, h'e is no longer a trespasser but is to be regarded as an invitee. * * * In such case, there is a duty upon the owner or other person in possession and control of the premises to which the child is allured to exercise due care so as not to negligently injure him while he is upon the premises. Id. at 359, 194 N.E.2d at 537 (emphasis added). With this understanding of the law of Illinois, we are unable to identify any negligence of defendant other than the obvious negligence in not preventing its employees from throwing flares to children along the right-of-way: It is also clear that the attracting agency— the giving away of flares — did not proximately cause the injuries here at issue as would have been the situation if the child had been injured by the flares themselves or struck on or near the tracks while seeking or obtaining flares. A requirement that for liability to attach there must be negligence beyond the mere creation or tolerance of a dangerous condition attractive to children where the source of the attraction is not also the source of the injury is entirely consistent with the customary rules of negligence law. In reality such a requirement is nothing more than the usual requirement that there be proximate causation for recovery of damages to follow. The absence of a requirement of proximate causation would have the logical result of making defendant an insurer as to injuries sustained by children without regard to who or what actually caused the injury. It is clear that such is not the law in Illinois. In addition, the situs of the accident here at issue demonstrates the enormous burden which would be placed upon railroads if the defendant were held liable in this instance. The only methods of insuring that such injuries would not recur would be to fence the right-of-way at crossings where there is any likelihood of children’s presence or to construct an overpass or underpass or place a guard at all such crossings. We do not believe Illinois law imposes any such requirement. Moreover, on the basis of the testimony before the trial court, the practice of hopping rides on defendant’s trains was by no means confined to the Cargill Road crossing, and to effectively foreclose such a practice would therefore require fencing or patrolling of defendant’s entire right-of-way. Finally, the actions of the two boys at the crossing indicate that they were in the vicinity of the railroad tracks when the accident occurred not to obtain flares but to hop a train. If their presence at the Cargill Road crossing at any prior time related to obtaining flares, that mission had clearly been abandoned by the time they placed themselves in danger of the accident which ultimately resulted. Moreover, their actions were inconsistent with a desire to obtain flares. This is so because not only was no request made for flares to be thrown to them, but also they hopped the train before the caboose (which, by the testimony of plaintiffs’ witnesses, was the usual source of the flares) had reached them. There is authority in the Illinois ease law for the proposition that, if a child has lost interest in the attracting agency and places himself in danger by undertaking another pastime which leads to injury, such a change in mission bars recovery as a matter of law. See Briney v. Illinois Cent. R. R., 401 Ill. 181, 81 N.E.2d 866 (1948) (cited in Kahn v. James Burton Co., supra, 5 Ill.2d at 625, 126 N.E.2d at 841). The judgment of the district court is affirmed. The complaint is in two counts. Count 1 asserts a claim by Illinois State Trust Company as guardian of the estate of Daniel David Land, a minor; Count 2 asserts a claim by the father of Daniel David Land for medical expenses. 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_numresp

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Samuel RIDDLE, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. No. 86-5228. United States Court of Appeals, Sixth Circuit. Submitted Dec. 8, 1986. Decided May 1, 1987. Rehearing En Banc Granted and Opinion Vacated July 9, 1987. Stuart E. Warren, Western Kentucky Legal Services, Owensboro, Ky., for plaintiff-appellant. Alexander Taft, U.S. Atty., Louisville, Ky., Suzanne M. Warner, U.S. Atty.’s Office, Louisville, Ky., for defendant-appellee. Before ENGEL and JONES, Circuit Judges, and EDWARDS, Senior Circuit Judge. See 823 F.2d 164. NATHANIEL R. JONES, Circuit Judge. Samuel Riddle appeals from the district court’s denial of attorney’s fees under the Equal Access to Justice Act (“EAJA”), 5 U.S.C. § 504 (1982 & Supp. Ill 1985); 28 U.S.C. § 2412 (1982 & Supp. Ill 1985). The district court based the denial upon its determination that the position of the United States was “reasonable,” and so was substantially justified. This presents us with the question whether the legislative history of the 1985 reenactment of the EAJA obliges us to change our definition of substantially justified to something more than merely “reasonable.” We conclude that a revised definition is called for, and reverse the district court’s order denying attorney’s fees. I. The claimant, Samuel Riddle, was born December 22, 1942. He worked as a self-employed farmer until December 1981, when he was injured in a serious automobile accident. Since the accident, Mr. Riddle has suffered from double vision due to a traumatic bilateral sixth cranial nerve paralysis, a ventilatory impairment due to orthopedic problems, neck pain and limited neck flexibility due to a fractured neck,, and residual pulmonary problems. Mr. Riddle applied for disability benefits on May 6, 1982. The application was denied initially and again on reconsideration. After conducting a hearing and reviewing the evidence, the administrative law judge concluded that the plaintiff could perform sedentary work and, therefore, was not disabled. This determination became the final decision of the Secretary when the Appeals Council denied review on July 1, 1983. Mr. Riddle appealed this final decision of the Secretary to the district court, and the district court granted summary judgment in claimant’s favor. The district court pointed out that all of Mr. Riddle’s treating physicians documented organic causes for his alleged disability. Dr. O’Bryan, his pulmonary specialist, opined that claimant was severely disabled and without possibility of returning to work within one year. He felt that Mr. Riddle was orthopedically disabled, with a permanent ventilatory impairment of a severe nature. Dr. Binegar, who had performed a muscle transplant on claimant’s right eye, noted that Mr. Riddle could only be comfortable when wearing an eyepatch. He therefore advised claimant not to work around heavy equipment or to perform tasks requiring binocular vision. Another treating physician, Dr. Riherd, recommended that claimant begin range of motion therapy, but said that claimant no longer needed to wear a neck brace. This doctor expressed no opinion regarding Mr. Riddle’s ability to return to work. The Secretary conceded that claimant could no longer perform his previous work. The Secretary contended that Mr. Riddle nevertheless had the residual functional capacity for sedentary work. The district court rejected this contention as unsupported by substantial evidence: The record contains only three pieces of evidence favorable to the Secretary, none of which demonstrates the residual functional capacity to perform sedentary work. Those three pieces of evidence are: (1) the examination of Dr. R. Taylor (Tr. 216-217); (2) the examination of Dr. Samuel Weeks (Tr. 226); and (3) the finding of the Administrative Law Judge whereas [sic] plaintiff’s complaints of pain were found not credible (Tr. 75 Finding No. 4). As previously mentioned the notes of Dr. Taylor are in large part not legible. Plaintiff's various ailments are scribbled on a report, and as far as can be determined there was no medical evidence demonstrating plaintiff’s ability to engage in sedentary employment nor was there a statement by Dr. Taylor that plaintiff possessed the residual functional capacity to engage in sedentary employment. As such this report (the record is unclear as to whether Dr. Taylor actually examined plaintiff) cannot constitute substantial evidence for finding plaintiff able to perform sedentary labor. The consultative examination rendered by Dr. Weeks without benefit of a personal examination consists of a one sentence report: “Severe now but should not last for 12 months.” The report is not accompanied by medical findings. This statement conflicts with the Secretary’s findings as the Administrative Law Judge concedes plaintiff has a severe impairment which precludes a return to his former employment. Lastly is the conclusion of the Administrative Law Judge that plaintiff’s pain is not credible. Although the Administrative Law Judge’s conclusions are to be given deference whereas plaintiff’s credibility is concerned, Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383 (6th Cir.1978), this finding must be supported by some evidence. Weaver v. Secretary of Health and Human Services, 722 F.2d 310 (6th Cir.1983). Here there is no evidence of record which conflicts with plaintiff's complaints of pain. Conversely, the evidence overwhelmingly documents their organic source. As such the Secretary has failed to establish by substantial evidence that plaintiff has the residual functional capacity to engage in sedentary employment. Riddle v. Heckler, No. C83-0238-O(B), slip op. at 8-10 (W.D. Ky. Oct. 23, 1985). Following this reversal of the Secretary's denial of benefits, claimant petitioned for an award of $1,350 in attorney’s fees under the EAJA. The district court denied the petition, briefly stating that although the Secretary’s decision was not supported by substantial evidence, the Secretary’s position was reasonable and, therefore, substantially justified. Claimant appeals, arguing in part that subsequent to the 1985 reenactment of the EAJA the Secretary’s position should not be deemed substantially justified merely because it is reasonable. II. Congress, recognizing the economic deterrents to contesting governmental action, passed in 1980 the Equal Access to Justice Act. See 28 U.S.C. § 2412(d). The EAJA specifically provides that a court “shall award” to a prevailing party in a civil suit (other than a tort action) brought by or against the United States the fees and other expenses incurred by that party unless the court finds “that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). Had this statute not yet been interpreted, we would begin our interpretation of the 1980 statute by following the canons of statutory construction and reading the plain language while ignoring momentarily the legislative history of the statute. See, e.g., United States v. Apfelbaum, 445 U.S. 115, 121-23, 100 S.Ct. 948, 952-53, 63 L.Ed.2d 250 (1980). Applying this hypothetical de novo construction, we note at the outset that the syntax of the statute suggests that the presumption is that a prevailing party will receive attorney’s fees unless and until the government demonstrates that it falls within the exception set forth — that its position was substantially justified or special circumstances exist. This leads to the question of what the term “substantially justified” would mean if unexplicated by legislative history. The adjective “substantial,” while connoting various meanings, generally indicates something that is “sturdy,” “solid,” or “firm,” something that is not “imaginary” or “illusive.” 2 Webster’s Third New International Dictionary Unabridged 2280 (1965). Thus, if we were to read the term “substantially justified” outside of any context, we might assume that it indicated something firmly grounded or solidly based. The courts, however, were not faced with the task of defining “substantially justified” in a vacuum. The legislative history behind the 1980 enactment of the EAJA suggested how that term might be interpreted — albeit the history pointed to two different interpretations. The House Report proposed that: The test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the Government can show that its case had a reasonable basis both in law and fact, no award will be made. H.R.Rep. No. 96-1418, 96th Cong., 2nd Sess. 10, reprinted in 1980 U.S. Code Cong. & Admin. News 4984, 4989. This legislative history appears to have been the basis for this circuit’s current definition of “substantially justified.” See Trident Marine Const., Inc. v. District Engineer, 766 F.2d 974, 980 (6th Cir.1985) (“Whether or not the government’s position is substantially justified is basically a question of reasonableness.”). However, the Court of Appeals for the District of Columbia held that another aspect of the legislative history called for a “test ... more stringent than ‘one of reasonableness.’ ” Spencer v. NLRB, 712 F.2d 539, 558 (D.C.Cir.1983) (citation omitted). This legislative history consisted of the Senate Judiciary Committee’s rejection of an amendment that would have changed the pertinent language from “substantially justified” to “reasonably justified,” S.Rep. No. 253, 96th Cong., 1st Sess. 1, 4 (1979). In light of the ambiguous legislative history, both the Sixth Circuit’s test and the D.C. Circuit’s test were supportable, although the D.C. Circuit’s standard might have comported more with the plain language of the statute. Section 2412(d) as passed in 1980, however, was avowedly experimental. It was subject to a sunset provision; unless it was reenacted before October 1, 1984, it would be repealed. See Pub.L. No. 96-481, tit. II, § 204(c), 94 Stat. 2329 (1980). An amended and permanent version of the Act was passed by both the House and the Senate on October 11, 1984, but it was vetoed by President Reagan in November of 1984 (on grounds not relevant here). Eventually, a permanent version of the Act was passed in 1985. The House Report on this present Act states that it: extends and improves the Equal Access to Justice Act, which expands the liability of the United States for attorneys fees and other expenses to certain parties who prevail against the United States in certain administrative and court proceedings. Portions of the Act expired on October 1, 1984. H.R. 2378 covers the period between that date and enactment and makes the law permanent. H.R.Rep. No. 99-120, 99th Cong., 1st Sess. 8, reprinted in 1985 U.S. Code Cong. & Admin. News 132, 136. The significance of the separate passages of the Act in 1980 and in 1985 is that the legislative history contemporaneous to the 1985 passage indicates that our circuit, as well as other circuits, has incorrectly interpreted the language of section 2412(d). The House Report for the 1985 Act notes that only $3.0 million was awarded under the Act between 1981 and 1984, whereas Congress had expected at least $100 million per year to be awarded. The report then declares that, “[p]art of the problem in implementing the Act has been that agencies and courts are misconstruing the Act. Some courts have construed the ‘position of the United States’ which must be ‘substantially justified’ in a narrow fashion which has helped the Federal Government escape liability for awards.” Id. at 9, 1985 U.S. Code Cong. & Admin.News at 137. Accordingly, the report set forth Congress’ intended definitions of the “position of the United States” and “substantially justified.” The report explicitly approves of the decisions of those courts, such as the D.C. Circuit, which have held that “substantial justification” requires more than mere reasonableness. It then states that: Because in 1980 Congress rejected a standard of “reasonably justified,” in favor of “substantially justified,” the test must be more than mere reasonableness. Especially puzzling, however, have been statements by some courts that an administrative decision may be substantially justified under the Act even if it must be reversed because it was arbitrary and capricious or was not supported by substantial evidence. Agency action found to be arbitrary and capricious or unsupported by substantial evidence is virtually certain not to have been substantially justified under the Act. Only the most extraordinary special circumstances could permit such an action to be found to be substantially justified under the Act. Id. at 9-10, 1985 U.S.Code Cong. & Admin. News at 138 (emphasis added and footnote omitted). At first glance, this language in the legislative history would seem to preclude any further discussion as to whether Congress desired a reasonableness standard. But three congressmen expressed on the floor varying degrees of dissatisfaction with a small part of the House Report. Congressman Kindness quoted the portion italicized supra as a “gratuitously authoritarian overstatement [which] appears to be the only error ... in the report.” 131 Cong. Rec. H4763 (daily ed. June 24, 1985). He explained that he disagreed with the quoted statement’s implication that “a finding of an agency action that was not supported by substantial evidence would automatically entitle a prevailing party to fees or would establish a presumption of entitlement to fees.” Id. He nonetheless conceded that: The committee recognizes the close relationship between the concepts, and the fact that a finding by the Government was not supported by substantial evidence should be accorded careful scrutiny. But indeed the quoted two sentences from the bottom of page 9 and the top of page 10 of the report do not represent a clear or a [sic] appropriately explanatory statement of the intent of the committee in the reporting of H.R. 2378. Id. (emphasis added). Congressman Moorehead indicated his agreement that there were different standards for substantial evidence and substantial justification. Id. Congressman Kastenmeier followed up these comments with his assurance that the committee report was not intended to suggest that the “Government may only avoid fees by prevailing in litigation.” Id. When questioned in the Senate about the same two sentences, Senator Grassley explained: I want to make it clear that the EAJA case over the fees issue is a separate and distinct inquiry. Just because an agency loses on the merits of the case doesn’t mean that it is automatically going to be liable for a fee award. The EAJA does not provide for automatic fee shifting. However, I would say that where the agency action is found by a court to be arbitrary and capricious or where there is little or no factual support for the agency action, the Government — as a practical matter — has its work cut out for it to prove substantial justification. Indeed, in the case of an arbitrary and capricious finding, I believe the plain meaning of the words strongly suggest [sic] that the Government was not substantially justified. I believe that this view is consistent with the committee report on S. 919, a bill we passed unanimously in the closing days of the 98th Congress. 131 Cong.Rec. S9993 (daily éd. July 24, 1985) (emphasis added). Senator Thurmond expressed his agreement with Senator Grassley, although he differed on the effect of an “arbitrary and capricious” finding. Id. We have detailed these comments on the 1985 legislative history because they demonstrate that no official in Congress expressed displeasure with the House Report’s rejection of the reasonableness standard. Instead, the congressmen and senators rather carefully limited their criticism to the part of the House Report suggesting that “agency action found to be ... unsupported by substantial evidence is virtually certain not to have been substantially justified under the Act.” The courts which have taken into account this 1985 legislative history have not equated the term “substantially justified” with the term “substantial evidence;” but neither have most courts ignored Congress’ rejection of the reasonableness standard. The Eighth Circuit, in United States v. 1,378.65 Acres of Land, 794 F.2d 1318 (8th Cir.1986), reconciled the 1980 legislative history with the 1985 legislative history by requiring the government now to show “not merely that its position was marginally reasonable; its position must be clearly reasonable, well founded in law and fact, solid though not necessarily correct.” Id. at 1318. The Federal Circuit, in Gavette v. Office of Personnel Management, 785 F.2d 1568 (Fed.Cir.1986) (en banc), declared that “it is clear that substantial justification is not simply equivalent to reasonableness.” Id. at 1579. The court went on to hold that the government must show that it was clearly reasonable: The Government must show that it has not “persisted in pressing a tenuous factual or legal position, albeit one not wholly without foundation.” Id. (quoting Gava v. United States, 699 F.2d 1367, 1375 (Fed.Cir.1983) (Baldwin, J., dissenting)). See also Lee v. Johnson, 799 F.2d 31, 38 & n. 7 (3rd Cir.1986) (recognizing 1985 Congress’ requirement of a test more stringent than reasonableness, but asserting that Third Circuit already has a more stringent test). Cf. Federal Election Commission v. Rose, 806 F.2d 1081 (D.C.Cir.1986) (refusing to equate “arbitrary and capricious” or "lack of substantial evidence” with “lack of substantial justification,” but continuing to use a “slightly more than reasonable” standard rather than a mere “reasonableness” standard). But see Russell v. National Mediation Board 775 F.2d 1284, 1289 (5th Cir.1985) (finding 1985 legislative history conflicting and inconclusive and so adhering to standard of reasonableness); Phil Smidt & Son, Inc. v. NLRB, 810 F.2d 638, 642 n. 5 (7th Cir.1987) (agreeing with Fifth Circuit that floor comments conflicted with the House Report). Unlike the Fifth and Seventh Circuits, we do not consider the 1985 legislative history to be inherently conflicting. In toto, the report and the statements on the floor indicate that in 1985 Congress was merely attempting to achieve the “middle ground” it had hoped to delineate in 1980. It did not want fees to be awarded each time a party prevailed against the government; nor did it want fees to be awarded only when the government’s position was frivolous. See H.R.Rep. No. 96-1418 at 13-14, 1980 U.S. Code Cong. & Admin. News at 4953, 4992-93. The problem with a reasonableness test is that it may lead to awards being given only when the government’s position is frivolous, for “reasonable” simply means “not absurd,” “not ridiculous,” “not conflicting with reason.” 2 Webster’s Third New International Dictionary Unabridged 1892 (1965). Accordingly, we see no reason to ignore the clear legislative intent to reject the reasonableness test. To construct the standard most likely to accord with Congress’ intentions, we return to the plain language of the statute — language which requires not that the government’s position be reasonably justified, but that it be sub stantially justified. We hold that in order to be substantially justified, the government’s position must have more than a “reasonable basis” in law and fact. Instead, the government’s position must be firmly grounded or solidly based in law and fact. Such a standard in no way equates the “substantial evidence” test with the “substantially justified” test, but at the same time it does require government agencies to have more than a modicum of support for the positions they take against private individuals. We believe this is what Congress intended. At last returning to the case before us, we note that the district court found that none of the evidence contributed to the Secretary's burden of proving that Mr. Riddle was capable of performing sedentary work. Given that the Secretary had conceded that Mr. Riddle could not return to his previous work, the absence of any evidence demonstrating the claimant’s ability to perform other work leads us to conclude that there was not a solid factual basis for the Secretary’s position. We therefore REVERSE the district court’s order and REMAND for the award of attorney’s fees. . I would note that the legislative history discussed here was indeed contemporaneous to the 1985 enactment of the EAJA, and so the.dissent’s criticism of reliance on "legislative observations’’ of a "subsequent Congress” do not render this 1985 legislative history irrelevant. Not even those courts, discussed infra, which chose to retain their former reasonableness standard considered the 1985 legislative history to be irrelevant. . Contrary to the dissent’s apparent belief, an analysis of both the House Report and' comments on the floor is a somewhat standard means of interpreting legislative history. See e.g., Train v. Colorado Pub. Int. Research Group, 426 U.S. 1, 9-23, 96 S.Ct. 1938, 1942-48, 48 L.Ed.2d 434 (1976); Mills v. United States, 713 F.2d 1249, 1252-53 (7th Cir.1983), cert. denied, 464 U.S. 1069, 104 S.Ct. 974, 79 L.Ed.2d 212 (1984). . I do not consider persuasive the other circuit decisions cited by the dissent since none of those opinions indicated even an awareness of the 1985 legislative history at issue here. The decisions in United States v. Yoffe, 775 F.2d 447, 450 (1st Cir.1985) (reasonableness standard); Weakley v. Bowen, 803 F.2d 575, 577 (10th Cir.1986) (reasonableness standard); and Haitian Refugee Center v. Meese, 791 F.2d 1489, 1497 (11th Cir.) (more than reasonableness standard), rev’d in part on other grounds, 804 F.2d 1573 (1986), all indicated an awareness that the EAJA had been reenacted in 1985, but none gave any indication that the decision-makers were aware of the relevant 1985 legislative history. Therefore, rather than analyze in any depth the test for “substantially justified,” those courts simply continued to use the definitions formulated under the 1980 EAJA. The decisions in Sierra Club v. United States Army Corps of Engineers, 776 F.2d 383, 393 (2d Cir.1985), cert. denied, _ U.S. _, 106 S.Ct. 1464, 89 L.Ed.2d 720 (1986), and League of Women Voters v. FCC, 798 F.2d 1255, 1257 (9th Cir.1986), gave no indication that those courts were even aware that the EAJA had been reenacted in 1985. Similarly, the "intra-circuit conflicts" in the Third, Eighth and D.C. Circuits, pointed out by the dissent, arise not from differing interpretations of the 1985 legislative history, but from one panel’s consideration of that history while another panel appeared to be unaware of that history’s existence. In such circumstances, the decisions of the panels which failed to note the 1985 reenactment should not diminish the persuasiveness of the opinions taking into account the 1985 legislative history. Question: What is the total number of respondents in the case? Answer with a number. Answer:

songer_casetyp2_geniss

G

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. There are two main issues in this case. The first issue is economic activity and regulation - bankruptcy, antitrust, securities - securities - conflicts between private parties (including corporations). Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". Richard ROMANI, Plaintiff, Appellant, v. SHEARSON LEHMAN HUTTON, et al., Defendants, Appellees. No. 90-2101. United States Court of Appeals, First Circuit. Heard March 4, 1991. Decided April 8, 1991. Edward Manchur with whom David Pastor, Kenneth Gilman, and Gilman and Pastor were on brief, for plaintiff, appellant. John J. Kenney with whom Jay S. Hand-lin, Simpson Thacher & Bartlett, Gerald F. Rath, and Bingham Dana & Gould were on brief, for defendants, appellees, Shearson Lehman Hutton, Inc., Shearson Lehman Bros. Partnership Services, Inc. and Lana Lobell Income Partners II. Richard M. Goldstein, with whom Shea & Gould, Mark A. Michelson, Sarah Chapin Columbia and Choate, Hall & Stewart, were on brief, for Touche Ross & Co. Before CAMPBELL and CYR, Circuit Judges, and COFFIN, Senior Circuit Judge. COFFIN, Senior Circuit Judge. Appellant Richard Romani brought this securities fraud action on behalf of himself and a class of persons consisting of all similarly situated investors in a horsebreed-ing limited partnership. Romani alleged that the defendants — varied individuals and entities responsible for the partnership’s public offering — fraudulently induced investments through misrepresentations and omissions in the offering materials that falsely inflated the partnership’s financial potential. The district court dismissed one federal claim on statute of limitations grounds and another for failure to plead with sufficient particularity under Rule 9(b) of the Federal Rules of Civil Procedure. Having rejected both federal claims, the court concluded that the pendent state claims also should be dismissed. Romani appeals only the Rule 9(b) dismissal of his claim asserted under § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, promulgated thereunder, and the concomitant dismissal of his state law claims. He further argues that he should have been granted leave to amend his dismissed complaint. We conclude that the district court correctly decided these issues, and therefore affirm. I. Background Lana Lobell Income Partners II Limited Partnership (“Lana Lobell II” or the “partnership”) was formed in 1986 to allow interested individuals to invest in the stan-dardbred horsebreeding business. The partnership planned to buy standardbred horses with the funds contributed by limited partners and eventually to distribute profits from the later sale of the horses. The partnership was to be directed by two individual managing general partners, defendants Alan J. Leavitt and Jack E. Ro-senfeld, and was to conduct business through the facilities of defendant Lana Lobell Farms, Inc., the horse farm owned by Leavitt and Rosenfeld. On April 24,1986, Lana Lobell II publicly offered for sale 9,700 limited partnership units pursuant to a Registration Statement and Prospectus. Defendant Shearson Lehman Hutton, Inc., was the exclusive selling agent for the public offering and defendant Shearson Lehman Brothers Partnership Services, Inc. was the associate general partner of the partnership. Defendant Touche Ross & Company, a public accounting firm, prepared a report that was included in the offering materials. Plaintiff bought five partnership units on May 7, 1986, at $1,000 per unit. In July 1986, a brief prospectus supplement was published stating that as of August 1, 1986, the day after the offering closing date, Rosenfeld would be withdrawing “from ownership and management of the operations of Lana Lobell Farms.” The supplement further stated, however, that Rosenfeld would “continue as a Managing General Partner of the Partnership” and that “his departure should not impact the day to day operations” of Lana Lobell Farms or the partnership. Appellant’s return on his investment did not meet the predictions made in the offering materials. Instead of expected cash distributions in excess of 13%, the yields in 1987 and 1988 were approximately to 3%. In March 1989, the limited partners were told that an affiliate of Lana Lobell Farms (that partially owned some of the partnership horses) recently had filed for protection under Chapter 11 of the Bankruptcy Code following two years of cash flow problems. As a result of this poor financial performance, on July 31, 1989, Romani filed the instant action. Before defendants responded to the original complaint, he filed an amended version. Count I of that amended complaint alleged that the defendants’ false and incomplete statements regarding the partnership constituted intentional securities fraud in violation of section 10(b) of the Securities Exchange Act and its associated regulation, Rule 10b-5. Counts II and III, which are not involved in this appeal, alleged additional violations of federal law. Counts IY through YII alleged pendent state claims for common law fraud and deceit, breach of fiduciary duty and gross negligence. In numerous paragraphs of the amended complaint, plaintiff refers to statements from the offering materials that depict in glowing terms the goals and financial potential of the partnership and the qualifications of the managing general partners, Leavitt, Rosenfeld and Lana Lobell Farms. According to plaintiff, these statements touting the preeminence of Lana Lobell Farms and its managers in the standard-bred breeding industry were false misrepresentations designed to lure investors. The claim of misrepresentation was linked to four material adverse facts about the partnership that Romani claims were deliberately withheld from him and other class members: (1)That the poor financial condition of Lana Lobell Farms and their affiliates made Partnership objectives and financial projections unrealistically optimistic and unattainable; (2) That the departure of Rosenfeld, contrary to the Defendants’ misrepresentations, was a major loss to the Partnership, in terms of financial management, expertise, capital and other resources, and although he was listed as a Managing General Partner of the Partnership, he actually had no substantive responsibilities, duties, or participation in its management; (3) That the standardbred horse industry, in general, and Lana Lobell Farms, in particular, was entering a recessionary period and, thus, representations made to investors which were largely based on past performance which occurred amidst dramatically more favorable operating conditions and markets, were materially false, misleading, and deceptive; and (4) That the managing general partners, after selling their interests out to the Partnership during the public offering period at extremely favorable prices, had no incentive to produce positive results, meet Partnership objectives, or generate the type of attractive financial returns which were represented to investors in the offering materials. Complaint at 1147. Defendants moved for dismissal, arguing, inter alia, that the complaint failed to satisfy the requirement of Fed.R.Civ.P. 9(b) that fraud claims be pleaded with particularity. In granting dismissal of the section 10(b) claim, the district court concluded that the complaint insufficiently specified the nature of the alleged wrongdoing and failed “to delineate the particular part each defendant played in the alleged fraud,” making it impossible for the defendants to respond adequately to the charges against them. The court held that plaintiff’s “ ‘shoot for the moon’ pleading directly violates the Rule 9(b) requirement that each defendant’s role in the alleged fraud be particularized,” Opinion at 5 (quoting Konstantinakos v. FDIC, 719 F.Supp. 35, 39 (D.Mass.1989)). On appeal, Romani argues that his Amended Complaint was sufficiently particular to place the appellees on notice of the conduct with which they were charged and to permit them to frame responsive pleadings, thereby satisfying Rule 9(b). He further claims that, in light of the pre-discovery stage of the case, the court erred in applying an excessively strict particularity standard with respect to the role played by each defendant in the alleged wrongdoing. He also argues that, even if dismissal were proper, the court abused its discretion in failing to grant leave to amend. Finally, appellant contends that dismissal of the pendent state claims was improper because it was based on the erroneous dismissal of his federal claim. II. Discussion It is well settled that Rule 9(b) requires the plaintiff in a securities fraud case to specify the time, place and content of an alleged false representation. Wayne Investment v. Gulf Oil Corp., 739 F.2d 11, 13 (1st Cir.1984). Although a plaintiff need not specify the circumstances or evidence from which fraudulent intent could be inferred, the complaint must provide some factual support for the allegations of fraud, id.; New England Data Services, Inc. v. Becker, 829 F.2d 286, 288 (1st Cir.1987). The requirement that supporting facts be pleaded applies even when the fraud relates to matters peculiarly within the knowledge of the opposing party. Wayne Investment, 739 F.2d at 13-14, quoted in New England Data, 829 F.2d at 288. Romani argues that his complaint satisfies the requirements of Rule 9(b) because it identifies the offering materials as the “time and place” of the allegedly false and misleading representations and provides “significant detail” about the material omissions on which his claim of fraud principally relies. We disagree. It is true that the complaint isolates the offering materials as the source of the alleged fraud, and this reference probably is sufficient to identify the time and place of the alleged misrepresentations. See Luce v. Edelstein, 802 F.2d 49, 55 (2d Cir.1986). Romani also argues with some force that he has identified the “content” of the asserted fraud adequately by pointing to the statements in the offering materials unreservedly extolling the quality and potential of the partnership and to the allegedly undisclosed contrary fact that there was trouble afoot. Whether or not the time, place and content specificity is met, however, the complaint nevertheless is deficient because the allegations of fraud are entirely unsupported. The complaint contains no factual allegations that would support a reasonable inference that adverse circumstances existed at the time of the offering, and were known and deliberately or recklessly disregarded by defendants. Where allegations of fraud are explicitly or, as in this case, implicitly, based only on information and belief, the complaint must set forth the source of the information and the reasons for the belief. New England Data Services, 829 F.2d at 288; Wayne Investment, 739 F.2d at 13; Hayduk v. Lanna, 775 F.2d 441, 444 (1st Cir.1985). We have been especially rigorous in demanding such factual support in the securities context to minimize the chance “that a plaintiff with a largely groundless claim will bring a suit and conduct extensive discovery in the hopes of obtaining an increased settlement, rather than in the hopes that the process will reveal relevant evidence,” New England Data Services, 829 F.2d at 288 (citing Wayne Investment, 739 F.2d at 13). See also Konstantinakos, 719 F.Supp. at 38 (“The rule is especially important in securities fraud cases where the strike suit value of a complaint is high.”) The only statement in the complaint sufficiently factual to provide support for the fraud claim concerns plaintiffs first alleged material omission, that Lana Lobell Farms was in poor financial condition. Paragraph 44 quotes a statement from the partnership’s 1988 10-K form referring to a two-year-old cash flow problem at an affiliate of Lana Lobell Farms. But this document was released in March 1989, nearly three years after the offering materials were disseminated. Even if we view the statement as operative at the end of the fiscal year, December 31, 1988, the two-year period still reaches back only to a time months after the offering closed. Indeed, for the partial year in which the partnership operated in 1986, the complaint alleges that the limited partners received cash distributions representing nearly a 20% annualized cash yield. See Complaint at 1142. Such a return on investment appears to negate plaintiff’s assertion that the partnership already was on shaky financial ground in mid-1986 and that defendants knew this. None of plaintiff’s other asserted material omissions is supported by any allegations of fact. The claim that Rosenfeld’s departure from Lana Lobell Farms was a major loss to the partnership is wholly undeveloped. The complaint fails to specify any connection between Rosenfeld’s role and the partnership’s ability to reach its profitability goals, and there is no reference to how his departure related to Lana Lobell II’s disappointing performance. The third assertedly omitted fact — that the standardbred horse industry was entering a recessionary period, making past performance an imperfect indicator of the future — cannot fairly be termed an omission, let alone a fraudulent one. The Touche Ross report attached to the Prospectus detailed a number of specific problems facing the standardbred industry, including overbreeding, declining attendance at races and an average decline in yearling prices. See Appendix to Touche Ross report at 3, 1-4. The offering materials are replete with statements, some highlighted, emphasizing the high risks associated with Lana Lobell II and that “[tjhere can be no assurance that the investment objectives of the Partnership will be attained.” See, e.g., Prospectus at 1, 9, 26-27, 40-42, 44. Thus, although the offering materials were optimistic about the prospects for Lana Lo-bell II, the documents unquestionably warned potential investors in a meaningful way that economic conditions in the horse-breeding industry were uncertain. Documents such as this, which “clearly ‘bespeak caution,’ ” are not the stuff of which securities fraud claims are made, Luce, 802 F.2d at 56. See also Andreo v. Friedlander, Gaines, Cohen, Rosenthal & Rosenberg, 651 F.Supp. 877, 881 (D.Conn.1986). The final alleged omission, that the managing general partners Leavitt and Rosenfeld had no incentive to produce positive results for the partnership, similarly is not properly characterized as an omission. The offering materials informed investors that, as part of the partnership transaction, Leavitt and Rosenfeld would be selling their horses to Lana Lobell II. Whether such a change in their relationship to the horses and Lana Lobell Farms was likely to reduce their motivation thus was a matter that each investor presumably would have considered before deciding to purchase units in the partnership. Moreover, plaintiff’s complaint contains no allegations permitting an inference that Leavitt and Rosenfeld, in fact, failed fully to perform their obligations to the partnership, causing the poor results. The inadequacy of plaintiff’s complaint is highlighted when it is contrasted with allegations offered by plaintiffs in other securities fraud cases. For example, in Luce, 802 F.2d at 55, plaintiffs claimed fraud in the solicitation of investors for a real estate partnership. Although some portions of the plaintiff’s complaint were dismissed because the allegations were “entirely con-clusory and unsupported by assertions of fact,” id. at 54, other portions based on specific facts survived. The allegations deemed sufficient to deflect a Rule 9(b) dismissal included: (1) that the general partners contributed only approximately $80,000 to the partnership despite a representation in the Offering Memorandum that they would make capital contributions of $385,000; (2) that the general partners entered into an agreement to transfer their partnership interests without the knowledge and consent of the limited partners, in direct contravention to representations made in the Memorandum, and (3) that the general partners collected management fees from the partnership for well over one year despite a representation that the fees would be collected for only one year. Id. at 55-56. In another Second Circuit case, DiVittorio v. Equidyne Extractive Industries, Inc., 822 F.2d 1242, 1248 (2d Cir.1987), the plaintiff claimed on information and belief that the defendants in their Offering Memorandum falsely had stated that the General Partner intended to observe the high standards required of it as a fiduciary. This belief was supported by allegations that defendants failed to maintain segregated accounts for their various ventures and actually siphoned the limited partners' funds into other ventures. DiVittorio also alleged that the memorandum estimated that the partnership’s properties contained nearly 9.3 million tons of coal, substantially more than in fact existed. In Hurley v. FDIC, 719 F.Supp. 27 (D.Mass.1989), the complaint alleged that a bank’s financial reports were fraudulent because they did not take into account numerous problem loans. The complaint contained many details about specific delinquent loans, the bank’s net worth and its reserves for potential loan losses. Id. at 31. See also Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1440 (9th Cir.1987) (“The complaint specified the exact dollar amount of each alleged overstatement, and the manner in which such representations were false and misleading.”). In each of these cases, the plaintiffs alleged in some detail the facts and figures upon which their claims of misrepresentation were based. Romani’s complaint is comparatively barren. In essence, he speculates that defendants committed fraud based solely on the partnership’s failure to be as profitable as the offering materials indicated was possible. Were such a pleading deemed sufficient, the advent of a recession could be expected to trigger a multitude of complaints in which plaintiffs seek to impose liability for their financial disappointments based on entirely fabricated scenarios of fraud. Without any shred of factual support for plaintiff’s hypothetical tale of deception, we are faced with precisely the sort of fishing expedition for fraud that Rule 9(b) is designed to prevent. See Wayne Investment, 739 F.2d at 14. As we previously have observed, “ ‘the rule does not permit a complainant to file suit first, and subsequently to search for a cause of action,’ ” Hayduk v. Lanna, 775 F.2d 441, 443 (1st Cir.1985) (quoting Lopez v. Bulova Watch Co., Inc., 582 F.Supp. 755, 766 (D.R.I.1984)). Accordingly, because plaintiff’s allegations do not meet the Rule 9(b) threshold, we affirm the district court’s judgment dismissing Count I of plaintiff's complaint for lack of particularity. III. Leave to Amend Plaintiff claims that the district court erred in dismissing his complaint without granting him leave to amend. The decision whether to allow amendment of a pleading is a matter within the discretion of the district court, and we will reverse only for an abuse of that discretion. Kennedy v. Josephthal & Co., 814 F.2d 798, 806 (1st Cir.1987). We find no such abuse in this case. Indeed, plaintiff’s failure to move for leave to amend arguably precludes us from reviewing the decision to dismiss with prejudice. See Wayne Investment, 739 F.2d at 15. We are unpersuaded by plaintiffs argument on appeal that his general opposition to defendants’ motions to dismiss — which sought dismissal with prejudice — adequately apprised the district court of his claimed entitlement to an opportunity to amend. Plaintiff’s silence may well have been viewed by the court as an implicit concession that he had nothing to add to his allegations. Even at oral argument before this court, plaintiff failed to indicate specifically how he would amend the complaint so as to comply with Rule 9(b). On this record, with neither an express request to the district court for leave to amend nor any indication that successful amendment is possible, we have no basis on which to upset the district court’s exercise of discretion. For the foregoing reasons, the judgment of the district court is AFFIRMED. . Plaintiff argues for the first time on appeal that Rule 9(b) should not be applied to claims under the federal securities laws. It is by now "axiomatic that an issue not presented to the trial court cannot be raised for the first time on appeal.” Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir.1979); Boston Celtics Ltd. Partnership v. Shaw, 908 F.2d 1041, 1045 (1st Cir.1990). We therefore decline to consider the argument beyond noting that, at least facially, it appears meritless. . At page 26, under the heading "Risk Factors,” the Prospectus stated that “it is impossible to predict with any certainty the future economic trend of the Standardbred industry as a whole.” . Although plaintiff did not attach a copy of the offering materials to his complaint, defendants submitted the documents with their motions to dismiss. This step was proper and did not convert the motion to dismiss into a motion for summary judgment. See Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1015 (1st Cir.1988) (" 'when plaintiff fails to introduce a pertinent document as part of his pleading, defendant may introduce the exhibit as part of his motion attacking the pleading’ ”) (quoting 5 C. Wright & A. Miller, Federal Practice & Procedure § 1327 at 762-63 (1990)). . Our discussion makes it unnecessary to address any other pleading deficiencies, including the one emphasized by the district court — that the complaint does not delineate the particular part each defendant played in the alleged fraud. We note, however, that at least with respect to certain defendants, we are in agreement with the district court. Other defendants may be subject to suit on a less demanding standard. See Ouaknine v. MacFarlane, 897 F.2d 75, 80 (2d Cir.1990) (reference to an Offering Memorandum satisfies 9(b)’s requirement of identifying time, place, speaker, and content of representation with respect to particular defendants who are insiders or affiliates participating in the offer of securities). . Although plaintiff’s counsel stated that he did have information that could be added to the complaint, particularly concerning the financial condition of Lana Lobell Farms, he offered no specifics. . Because the district court properly dismissed plaintiff’s federal securities claim, it correctly declined to exercise pendent jurisdiction over his state law claims. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Monahan's Marine, Inc. v. Boston Whaler, Inc., 866 F.2d 525, 530 (1st Cir.1989). Question: What is the second general issue in the case, other than economic activity and regulation - bankruptcy, antitrust, securities - securities - conflicts between private parties (including corporations)? 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_circuit

B

What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. UNITED STATES of America, Plaintiff-Appellee, v. William BENTVENA, William Struzzieri and Samuel Monastersky, Defendants-Appellants. No. 63, Docket 29732. United States Court of Appeals Second Circuit. Argued Oct. 20, 1965. Decided Feb. 23, 1966. Howard L. Jacobs, Asst. U. S. Atty., Robert M. Morgenthau, U. S. Atty., Neal J. Hurwitz, Asst. U. S. Atty., for ap-pellee. Jerome Lewis, Brooklyn, N. Y., for appellants Bentvena and Struzzieri. Robert Kasanof, New York City, for appellant Monastersky. Before WATERMAN, MOORE and FRIENDLY, Circuit Judges. WATERMAN, Circuit Judge: By this opinion we affirm the convictions of three codefendants, who, having been charged with violations of 21 U.S.C. §§ 173, 174 on January 6 and January 13, 1959, were each severally found by a jury to be guilty as charged. Samuel Monastersky and William Struz-zieri were convicted of unlawful involvement on both occasions, William Bent-vena as to the January 13 violation only. On this appeal, appellants Bentvena and Struzzieri argue that the judgments against them should be reversed and the pertinent counts of the indictment dismissed as to them, because the Government’s proof tending to show their guilt was so meager that the trial court erred in failing to direct verdicts in their favor at the close of the Government’s case. Appellant Monastersky states his willingness to adopt his codefendants’ argument as his own should it commend itself to this court, but he mainly relies upon the argument that the Government should not have been allowed to avail itself of the evidentiary rule contained in 21 U.S.C. § 174 because it failed to prove he had possession of the heroin that was the subject matter of the transactions of January 6 and January 13. He concludes that without the benefit of this rule his conviction cannot stand. We take up these separate contentions in order. I. The initial issue is whether the evidence presented by the Government during its case-in-chief was sufficient to permit the cases against any or all of these defendants to be submitted to the jury. We look first to the evidence relating to the January 6 transaction in which only Monastersky and Struzzieri were allegedly involved. The case against these two codefendants, based almost entirely on the trial testimony of several federal narcotics agents, can be briefly summarized. On January 5, Agent Giorgio had arranged with Monastersky to purchase from him on the following day one-half kilogram of heroin for $6,000. At about 8:40 P.M. on January 6 several agents observed Monastersky enter 525 East 88th Street. Several minutes later a car arrived on the scene and parked. Struzzieri got out and entered the same building Monastersky had previously entered. A second federal agent, Agent Ward, testified that when Struzzieri left the car and entered the building he was carrying a package wrapped in blue paper on which appeared a white snow man design. Shortly thereafter Struzzieri left the building empty handed and drove off in the same car in which he had arrived. At about 9:30 P.M. one Richard McGovern left 525 East 88th Street carrying a package and proceeded to 448 East 87th Street. A short time later Monastersky brought Agent Giorgio to 448 East 87th Street. There they met McGovern in an apartment in this building, McGovern produced a package wrapped, according to Giorgio, in blue paper on which appeared a white snow man design and the package, when opened, contained a white powder later proved to be heroin. The three men then left the apartment; once outside Giorgio handed McGovern $6,000 and McGovern gave the agent the package, which contained about one-half a kilogram of heroin. Giorgio took the package to an automobile where a third agent, Agent Mangiaracina, was waiting. There was also testimony tending to show that Struzzieri met McGovern for a few minutes later in the evening. Assuming for the moment that the trial court correctly charged the jury that it could find Monastersky had “possession” of the heroin sold on January 6 sufficient to justify reliance on the rule contained in 21 U.S.C. § 174 it is quite clear that the Government's case against Monastersky relative to this January 6 sale was sufficient to go to the jury. Indeed, the evidence tending to prove that Monastersky was actively involved in this unlawful sale was largely uncon-tradicted. We surely cannot disturb a jury verdict based on such evidence. See United States v. Dardi, 330 F.2d 316 (2 Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964). Whether the Government’s case concerning the January 6 sale of heroin made out a case against Struzzieri sufficient to go to the jury is a closer question. Essentially, the Government’s case against Struzzieri consists of Giorgio’s testimony that he received the heroin from McGovern and Monastersky in a package wrapped in blue paper on which appeared a white snow man design, and the testimony of Ward that he observed Struzzieri carrying just such a package enter 525 East 88th Street shortly after Monastersky had entered the building and only a few hours before a package so wrapped was passed to Giorgio. The Government contends this evidence was sufficient to allow a reasonable jury to find that Struzzieri brought to McGovern and Monastersky the heroin that the latter pair then sold to Giorgio. Struz-zieri argues that the issue of his guilt should not have been submitted to the jury because crucial testimony of several narcotics agents was “meager,” “remote,” and “incredible." ( In support of his argument Struzzieri first points to the fact Agent Man-giaracina, who waited in an automobile for Giorgio to return with the heroin on the evening of January 6, testified the package Giorgio brought with him to the automobile was brown in color. Unquestionably, this testimony as to the color of the package varied from Gior-gio's testimony that the package was blue and white. Nevertheless, the jury could well have determined that Mangiaracina was mistaken in his recollection of the color and that Giorgio’s testimony was to be believed. Such a resolution of the variance, which would tend to incriminate Struzzieri, would be supported by the testimony of Agent Ward who stated that the páckage Struzzieri carried when he entered 525 East 88th Street was wrapped in blue paper on which appeared a white snow man design. We cannot say that such a resolution of this evidential variance would be unreasonable; therefore we should not replace it with our own. This is not a case in which two segments of the Government’s proof were absolutely essential to support a conviction and each contradicts the other. United States v. Moret, 334 F.2d 887, 893 (2 Cir. 1964) (Waterman, J., dissenting), cert. denied, 379 U.S. 993, 85 S.Ct. 707, 13 L.Ed.2d 612 (1965). Rather, here there was a conflict in the Government’s proof tending to establish only one fact among many facts that together tended to prove Struzzieri was carrying the package that contained the heroin subsequently sold to Giorgio. Undeniably the variance as to the color of the wrapping paper weakened the Government’s case against Struzzieri. Nevertheless, the jury concluded the package that Giorgio received from Monastersky and McGovern was the package Struzzieri brought to the latter pair earlier in the evening. We should not disturb this permissible resolution of the variance since this is precisely the sort of task that juries are best able to perform. United States v. Dardi, supra; United States v. Tutino, 269 F.2d 488 (2 Cir. 1959). Struzzieri also contends the Government’s case tending to involve him in this January 6 transaction was fatally weak because Agent Ward’s testimony that he observed Struzzieri enter 525 East 88th Street carrying a package wrapped in blue paper on which appeared a white snow man design was incredible and unworthy of belief because of the distance separating Ward from Struzzieri and the poor lighting conditions at that time. In other words, Struzzieri’s claim is not that the Government failed to present evidence from which reasonable men could be convinced of a certain fact beyond a reasonable doubt; rather he claims that the physical facts so contradict Ward’s testimony as to render that testimony unbelievable. We disagree. Deciding whether certain evidence should be believed is precisely the task set the jury in a prosecution such as this; we should not interfere with the jury’s decision in this case that Ward’s testimony was credible. We next turn to consider whether the Government’s evidence relating to the January 13 transaction in which all of the defendants were allegedly involved was sufficient to permit the cases against any or all of them to be submitted to the jury. Again, the case against Monaster-sky, Struzzieri and Bentvena was based almost entirely on the trial testimony of seyeral narcotics agents, and it, too, can be briefly summarized. Agent Giorgio made arrangements with Monastersky to purchase another half kilogram of heroin on January 13 from Monastersky and McGovern for $6,000. On that date, at about 9:25 P.M. Bentvena and Struzzieri arrived in a car on East 88th Street-; they parked and entered the apartment building numbered 525. Shortly thereafter Monastersky came out of this building and met Agent Giorgio who had been waiting in the immediate vicinity for some time.. Giorgio introduced Agent Mangiaracina to Monastersky as his partner and while Mangiaracina waited in the lobby of the building Monastersky and Giorgio made their way to apartment 2-H, which was McGovern’s apartment. While doing so they met Struz-zieri and Bentvena coming toward them in the opposite direction. When Bent-vena and Struzzieri arrived in the lobby Mangiaracina observed Bentvena stop and speak into the intercom system; at approximately the same time Giorgio observed McGovern go to the intercom connection in apartment 2-H and speak into it, saying, “Everything is okay.” Man-giaraeina then saw Struzzieri leave the building, while agents outside saw them walk to their car, remove a brown package from the trunk, and together return to the lobby where Mangiaracina saw them go upstairs again. Shortly thereafter, according to Giorgio, the doorbell rang in apartment 2-H, McGovern answered the bell and returned with a brown package ultimately found to contain heroin. Bentvena and Struzzieri were observed leaving the building a few minutes after their last entry. In the meantime, McGovern had asked Giorgio for the money. Giorgio summoned Man-giaracina, his supposed partner, from the lobby, the agents handed an envelope containing $6,000 to Monastersky, and Mon-astersky handed the package of heroin to Giorgio. Subsequently Struzzieri and Bentvena returned to 525 East 88th Street, where they remained for about an hour. Considerations similar to those that caused us to affirm the jury’s verdict of guilty based on the evidence relating to the January 6 sale cause us to hold that the evidence introduced by the Government relating to the January 13 sale was sufficient to support the jury’s verdict of guilty as to the latter transaction. Viewing the evidence, as we must, in the light most favorable to the Government, United States v. Tutino, supra, and recognizing that involvement in an illegal sale of narcotics may be proved by circumstantial evidence, United States v. Moret, supra, we cannot say that reasonable jurors could not have found beyond a reasonable doubt that Struzzieri and Bentvena delivered the heroin to Monastersky and McGovern which they, in turn, sold and delivered to Giorgio. And, of course, Monastersky’s involvement in the transaction is firmly established. II. We now examine the claim of appellant Monastersky that his conviction on both counts should be reversed because, as the record does not show that the heroin sold to the agents was illegally imported, or that Monastersky knew from where it came, his conviction can only stand if the Government proved he had “possession” of the drugs, which, he maintains, the Government failed to do. Monastersky contends the Government’s proof establishes only that he was a “casual facilitator” of the sales in question, in other words that he merely introduced a willing seller to a willing buyer, activity that we held was insufficient to establish possession, either actual or constructive, in United States v. Jones, 308 F.2d 26 (2 Cir. 1962). We disagree with appellant. We believe the evidence in this case established that Monastersky had, on both occasions, power to control the disposition of the heroin sufficient -to constitute “possession” within 21 U.S.C. § 174. See United States v. Jones, supra. In Jones we reversed a conviction under §174 that equated mere participation in a sale of narcotics with “possession” of the narcotic drug. In discussing the facts of that case we said: We believe the evidence in this case negates a conclusion that defendant Jones had dominion and control over the narcotics handed to Brown by Moore. The pains Jones took in the first instance to find Moore indicate that Jones was unable to consummate the transaction as a business dealing of his. The price and place of delivery were not even discussed with the would-be purchaser until defendant spoke with Moore. No one can say that Jones established these essential details of the affair unless he engages in speculation wholly unwarranted by the trial record. After consummation of the transaction Moore told agent Brown to purchase directly from him in the future and not to deal with anyone else. This statement by Moore negates a finding that Jones could assure, as a matter of course, delivery by Brown to a customer Jones might discover. 308 F.2d at 31. The facts here are quite different. On both January 6 and January 13 Monastersky apparently set the price of the heroin without consulting with McGovern. On January 6 Monastersky was in the building when Struzzieri delivered the heroin. At both sales to Giorgio, •Monastersky remained with McGovern throughout. And during the January 13 transaction Monastersky had the heroin package in his hands, Giorgio paid the money directly to Monastersky, and Mon-astersky handed the heroin directly to Giorgio. This evidence brings Monaster-sky’s case well within our statement in Jones that “evidence showing that a given defendant set the price for a batch of narcotics, had the final say as to means of transfer, or was able to assure delivery, may well be sufficient to charge the defendant with a constructive possession of the narcotics * * 308 F.2d at 31. Monastersky also contends that the trial court’s charge relating to constructive possession was improper. We would be hard pressed to detect error in this charge. In any event, since Monastersky failed to object to the charge at trial, or to request a different charge, he may not, barring special circumstances not present here, raise the issue on appeal. See United States v. Indiviglio, 352 F.2d 276 (2 Cir. 1965), cert. denied, Feb. 21, 1966, 86 S.Ct. 887. Affirmed. . The indictment out of which these convictions arise was filed on May 5, 1960. It named twenty-nine defendants and contained eight counts. The first trial on the indictment ended in a mistrial after six months. The second trial resulted in the conviction of thirteen defendants, including the present appellants, on counts four and five charging substantive violations of the narcotics laws and on count eight, the general conspiracy count. On June 13, 1963 our court affirmed the convictions of nine of the defendants but reversed the convictions of appellants and the defendant Salvatore Pánico and remanded for a new trial. United States v. Bentvena, 319 F2d 916 (2 Cir.), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.24 271 (1963). This appeal follows the third trial. . Appellants Bentvena and Struzzieri seek only a reversal with directions that the indictment be dismissed, they do not seek a new trial. . It is a federal offense under Section 174 to import narcotics illegally or to deal in such drugs with knowledge that they have been illegally imported. The statute goes on to provide: “Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possessio’n to the satisfaction of tlie jury.” In the present case Monastersky argues the Government did not prove he had or had had possession of the heroin which was the subject of the illegal transactions. . See note 3, supra. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:

songer_two_issues

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. James Malcolm TUGGLE, Jr., Petitioner-Appellee, v. William SEABOLD, Warden, and David L. Armstrong, Attorney General, Respondents-Appellants. No. 86-5172. United States Court of Appeals, Sixth Circuit. Argued Sept. 22, 1986. Decided Nov. 24, 1986. C. McGehee Isaacs (argued), Asst. Public Advocate, Frankfort, Ky., for petitioner-ap-pellee. David L. Armstrong, Atty. Gen. of Kentucky, Frankfort, Ky., Gerald Henry (argued), for respondents-appellants. Before LIVELY, Chief Judge, MERRITT, Circuit Judge, TIMBERS, Senior Circuit Judge. The Honorable William H. Timbers, Senior Judge, United States Court of Appeals for the Second Circuit, sitting by designation. LIVELY, Chief Judge. The district court granted a writ of habe-as corpus to the petitioner, Tuggle, and the respondents appeal. Accepting the report and recommendations of the magistrate, the district judge concluded that the proceedings under which Tuggle was convicted of knowingly receiving stolen property denied Tuggle his constitutional right to due process of law. The due process violation consisted of questioning Tuggle at trial about his postarrest silence. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). I. Sometime during the night of January 1-2, 1982 Leonard Burke and his fiancee were shot to death in Burke’s home in Hopkinsville, Kentucky, and the house was set on fire. Burke was a professional gambler who wore expensive jewelry and carried large sums of cash. The jewelry was missing when the bodies were discovered and only $500-600 was found in the house. Suspicion seems to have settled on Tuggle early in the investigation. Tuggle was a casual laborer who had a felony record for burglary. He had worked as “door keeper” at Burke’s gambling hall above a pool room for approximately one month, but was laid off or discharged by Burke on December 30, 1981. The police could not locate Tuggle early in the day on January 2, 1982. However, late that afternoon Tuggle went to the Hopkinsville police station and was interviewed. He was not taken into custody at that time. Tuggle signed a consent for the police to search his automobile, but refused to tell the police where he had been the previous night. The police interrogated Tuggle several times later in January, but he continued to refuse to discuss his whereabouts on the night of the crimes. On February 19, 1982, after some previous arrangements through an informer named Doug DeRose, Tuggle delivered some of Burke’s jewelry to an undercover police officer in exchange for $10,000. This transaction was monitored and tape recorded by other officers who immediately moved in and arrested Tuggle. One of the officers testified that he told Tuggle that he was under arrest and advised him of his “rights.” Tuggle was indicted on two charges of murder, two charges of burglary and one charge of arson. In a subsequent indictment he was charged with knowingly receiving stolen property. All charges were tried together. Tuggle elected to testify at trial. On direct examination Tuggle’s attorney asked about his trip to the police station on January 2. Tuggle testified that he went to the police station because his father and a friend told him the police were looking for him. He consented to a search of his car, but testified that when questioned concerning his whereabouts the night before, “I didn’t have anything to say to them.” Tug-gle explained that he was still on parole from his previous convictions and that he had violated conditions of parole by going to Tennessee the night of January 1-2. When Tuggle’s attorney asked about other interrogations prior to his arrest, Tuggle stated that he never told the police, or anyone else where he had been, because to have told would have revealed a parole violation, and he had no concrete alibi. Tuggle testified extensively about his contacts with DeRose in the days immediately preceding his arrest. He said that DeRose had Burke’s jewelry in his possession and frightened Tuggle into helping him dispose of it. Tuggle testified that when DeRose showed him the jewelry on February 17 he recognized it as Burke’s. He admitted handling the jewelry at the informer’s home, but denied having it in his possession between February 17th and 19th. DeRose testified that Tuggle had the jewelry in his possession on February 17 when he showed it to DeRose and boasted of its value. Having already agreed to cooperate with the police, DeRose made the proposal to sell the jewelry to the undercover officer posing as his uncle. Tuggle’s version of the events was that DeRose kept the jewelry until the night of February 19 when he placed it in an automobile and directed Tuggle where to find it for delivery to his “uncle.” Tuggle’s attorney did not ask him on direct examination whether he made any statement at the time of his arrest or thereafter. On cross-examination the prosecutor asked Tuggle why he did not tell the police, or anyone else, where he had been on the night of the murders. Tuggle gave the same answer he had given on direct examination. The prosecutor then started questioning Tuggle about the events of February 17-19. Defense counsel objected reminding the court that Tuggle was arrested on February 19. The trial court ruled that the questions still related to Tuggle’s prearrest silence and overruled the objection. This ruling was correct since no questions had been asked at that point which related to the period after Tuggle’s arrest. The prosecutor then asked, referring to Tuggle’s version of the events leading up to his arrest, “In the past five months that you have been in custody, you have not told this to any law enforcement official or any member of the general public?” Without objection, Tuggle answered that he had told his attorney, but not any law enforcement official. Tuggle was also asked why he had not just explained to the police at the time of his arrest “what had taken place.” Again, there was no objection, and Tuggle replied that he was intoxicated, upset and “in shock” immediately after his arrest. In closing argument Tuggle’s attorney talked about his client’s prearrest silence and reminded the jury of Tuggle’s reasons for not revealing his whereabouts. The attorney did not mention Tuggle’s postar-rest silence. However, in arguing for the Commonwealth, the prosecutor did comment. Referring to Tuggle’s struggles with the arresting officers while being taken to jail, the prosecutor asked: Did that sound like the actions or the reactions of a man who had been set up, who was innocent, or does it sound like the reactions of a man who is guilty, who thought he’d gotten away with something and realized he’d gotten caught and got mad? Did he tell the police right then what had gone on? II. The jury acquitted Tuggle of all the charges except that of knowingly receiving stolen property and fixed his punishment at five years in prison. He was also found, in a bifurcated hearing, to be a persistent felony offender and this resulted in an enhanced sentence. The Supreme Court of Kentucky affirmed the conviction in an unpublished opinion, and this habeas corpus action followed. On appeal from the order granting habe-as relief the warden and Attorney General (the Commonwealth) make several procedural arguments in addition to the contention that the district court erred in its application of Doyle v. Ohio to the facts of this case. The Commonwealth argues, first, that Tuggle failed to exhaust his available state remedies, a requirement of 28 U.S.C. § 2254(b) for granting a writ of habeas corpus to a person in state custody. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Tuggle filed a petition for rehearing in the Supreme Court of Kentucky in which he reargued only one of five issues contained in his brief on direct appeal. The finding that there had been no Doyle violation was not discussed. The Commonwealth asserts that Tuggle thereby abandoned the claim that he was denied due process when questioned about his postarrest silence, and that he was barred from raising that issue in these habeas corpus proceedings. The second issue raised by the Commonwealth on appeal is that habeas relief may not be granted because the Supreme Court of Kentucky decided Tuggle’s appeal on independent and adequate state procedural grounds. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Tuggle's retained counsel objected to the prosecutor’s questions to Tuggle about his prearrest silence concerning his whereabouts on January 1-2, but did not object to the questions about his failure, following his arrest, to tell his version of how Burke’s jewelry came into his possession. Kentucky has a contemporaneous objection rule. Kentucky Rules of Criminal Procedure (RCr) 9.22; Turner v. Commonwealth, 460 S.W.2d 345 (Ky.1970). The third procedural issue rests on the Commonwealth's contention that the district court failed to consider the matter de novo following objections to the magistrate’s report, in that the district court did not “articulate” specific responses to the objections. Finally, the Commonwealth maintains that the holding of the district court on the substantive Doyle claim is erroneous, or, in the alternative, that any error in this regard was harmless. III. We reject each of the procedural arguments of the Commonwealth. A. There is no requirement that a litigant petition for rehearing after an appellate court issues a final decision. The rule governing petitions for rehearing in the Supreme Court and Court of Appeals of Kentucky, Civil Rule (CR) 76.32(1)(a), provides that “[a] party adversely affected by an opinion of the Supreme Court or the Court of Appeals in an appealed case may petition the Court for (i) a rehearing....” (Emphasis added). The Supreme Court of Kentucky has rejected an argument that is analogous to the one made by the Commonwealth. In disposing of an argument that a person convicted in Kentucky must seek discretionary review in the Supreme Court or the Court of Appeals from a trial court’s denial of relief under a state postconviction proceeding in order to preserve his right to pursue federal habeas relief, the Supreme Court stated, “The decision of the Court of Appeals denying the RCr 11.42 was final state action, without a useless motion for discretionary review.” Freeman v. Commonwealth, 697 S.W.2d 133, 134 (Ky.1985). The same reasoning applies to discretionary review of the final decision of the Supreme Court; nothing further is required in order to preserve the right to seek federal habeas relief. Tuggle argued the Doyle issue fully in his brief to the Supreme Court and, as we discuss, infra, the court ruled on the issue in its opinion. In Coleman v. Maxwell, 351 F.2d 285 (6th Cir.1965), the district court dismissed a habeas corpus petition for failure to exhaust state remedies. The petitioner had appealed his conviction to the Ohio Court of Appeals, where it was affirmed. Thereafter, the petitioner took an appeal to the Supreme Court of Ohio on the same grounds, and that court dismissed the appeal. In reversing the district court’s dismissal of the petition, this court stated: It is clear to this court that once an issue of asserted federal constitutional violation has been presented to the highest state court in the state concerned, that the doctrine of exhaustion of remedies does not require futile repetitive presentation to such court by repeated attempts through a variety of motions. Id. at 286 (citation omitted). We paraphrased Coleman v. Maxwell in Duke v. Wingo, 386 F.2d 304, 306 (6th Cir.1967): Once an issue of asserted constitutional violation has been presented to the State’s highest court, the doctrine of exhaustion of remedies does not require future repetitive presentations to such court by additional attempts through a variety of successive motions. See also Jones v. Foltz, 646 F.2d 1172 (6th Cir.1981); Hill v. Anderson, 492 F.Supp. 930 (E.D.Mich.1980). The exhaustion requirement is satisfied when a petitioner has “fairly presented” the substance of each federal claim to the state courts. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982); Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir.1984). There can be no doubt that this requirement was met in the present case with respect to the Doyle claim. B. The state court record does not support the Commonwealth’s contention that the Supreme Court of Kentucky decided Tuggle’s appeal on his counsel’s failure to object to the prosecutor’s questions about Tuggle’s postarrest silence. The opinion of the Kentucky Court addressed the issue as follows: The appellant on direct-examination first introduced evidence of his post-arrest silence. He was not prejudiced by cross-examination concerning the failure to offer a defense. Tuggle opened the door to the entire subject. One who first introduces evidence pertinent to a field of inquiry that is not competent or relevant to the issue cannot complain if his adversary is allowed to avail himself of such an opening. Richardson, Kentucky Law of Evidence § 11.9 (1973). In these circumstances, there was no violation of the principles of Doyle v. Ohio, 426 U.S. 610, 90 [96] S.Ct. 2240, 49 L.Ed.2d 91 (1976). If the Supreme Court of Kentucky had affirmed Tuggle’s conviction because of a procedural default consisting of failure to object to a question or response, our task would be a different one. However, the Kentucky Court did not mention the contemporaneous objection rule in its opinion. Where a state court chooses not to rely on a state procedural default in a criminal appeal but decides the merits of the case, a federal habeas court does not reach the “cause” and “prejudice” inquiry of Wainwright v. Sykes. Martin v. Foltz, 773 F.2d 711, 715 (6th Cir.1985); Hockenbury v. Sowders, 620 F.2d 111, 115 (6th Cir.1980), cert. denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 367 (1981). While the Supreme Court of Kentucky referred to a state rule of evidence as a basis for finding no Doyle violation, nevertheless, it appears to have considered and decided the merits of the claim. To the extent that the reference in the opinion to a Kentucky evidentiary rule might be construed ás a decision of the Doyle claim on the basis of independent and adequate state grounds, we are constrained to hold that the record does not support the conclusion that Tuggle’s attorney opened the door to inquiry about his postarrest silence. The defense attorney clearly first raised the matter of Tuggle’s refusal to tell anyone during the prearrest period of his whereabouts on January 1-2, but only the prosecutor questioned Tuggle about his silence following the arrest. The statement to the contrary in the state court's opinion is not fairly supported by the record. 28 U.S.C. § 2254(d)(8). C. When a district judge refers a habeas corpus petition to a magistrate for hearing and recommendations for disposition, and a party files timely objections to the proposed findings and recommendations, a judge of the referring court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1) (1982). The district judge in the present case states in an amended order and judgment: This matter having been considered by U.S. Magistrate W. David King; it appearing that the magistrate has filed his report and that the petitioner has filed his objections to magistrate’s report; the court having considered de novo those portions of the magistrate’s report to which objection is made by the petitioner; the court has determined that there appears to be no factual disputes which would warrant a hearing; and the court having determined that the magistrate’s report should be accepted in whole and the findings of fact and conclusions of law be fully incorporated by reference herein. The Commonwealth argues that the district court failed to comply with § 636(b)(1) because it did not “articulate” its reasons for overruling the objections. No authority is cited for this assertion, and we know of none. When circumstances demonstrate that a district court has not conducted the required de novo review, the case must be remanded for compliance with the statute. See Hill v. Duriron Co., 656 F.2d 1208 (6th Cir.1981) (record disclosed that transcripts of proceedings before the magistrate had not been filed when district court overruled objections based on evidentiary issues). However, that is not the situation here. The statement of the district court in this case satisfies us that the requirement of a de novo review was met. See United States v. Larson, 760 F.2d 852, 857 (8th Cir.), cert. denied, — U.S. -, 106 S.Ct. 143, 88 L.Ed.2d 119 (1985) (statement in order that district judge made de novo review of record and all objections to magistrate’s findings and recommendations was sufficient.) No further articulation was required. IV. It is not a violation of due process for a prosecutor to ask a criminal defendant about prearrest silence. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). In overruling Tuggle’s objections to the prosecutor’s questions about his prearrest silence the state trial judge made the distinction between the two situations and exhibited a clear understanding of the Doyle rule. The trial judge had no opportunity to rule on the prosecutor’s questions about Tuggle’s postarrest silence because there was no objection. Nevertheless, this matter was not first raised by the defendant, and the prosecutor’s questions and comments about Tuggle’s postarrest silence violated Doyle. This court held in Martin v. Foltz, 773 F.2d 711, 715 (6th Cir.1985), that a Doyle error may be harmless. The test for harmless constitutional error is whether a court is “able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The district court did not consider whether the error in this case was harmless, although the record appears to sustain the Commonwealth’s claim that this issue was preserved for habeas review. If Tuggle had been convicted of murder, burglary, or arson, there is little doubt that the error could not have been harmless. There was no direct evidence placing Tug-gle in or near the Burke home after nightfall on January 1, 1982, and his possession of the jewelry was the only evidence linking him to those crimes. His response to this circumstantial evidence was that he was coerced into helping a man whom he feared dispose of the jewelry that was already in that person’s possession. The questions and comments of the prosecutor were intended to convey to the jury that this explanation was a recent fabrication, and thus remove doubt that Tuggle acquired the jewelry as part of a more serious crime sortie. The charge on which Tuggle was convicted, knowingly receiving stolen goods, stands on a somewhat different footing. There was direct evidence of the most damning type with respect to this charge. In fact, Tuggle admitted all elements of the offense. Kentucky Revised Statutes (KRS) 514.110 defines the offense as follows: A person is guilty of receiving stolen property when he receives, retains or disposes of movable property of another knowing that it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner. Tuggle testified that he recognized the jewelry as the property of Burke when it was shown to him and knew it was stolen, that he received it from his former partner in crime and that he disposed of it by delivering it to the undercover officer in exchange for $10,000. His defense was that Doug DeRose tricked him into handling the jewelry and then coerced him into making the delivery. During the trial no one concentrated on the relatively minor offense of receiving stolen goods. Naturally enough, their concern was with the more serious charges. It seems likely that the jury found the link between the jewelry and the murders too tenuous to serve as the sole evidence of guilt of two capital offenses and the other serious felonies. The jurors could have reached the conclusion that the Commonwealth did not prove guilt of those charges beyond a reasonable doubt without accepting Tuggle’s explanation of how he happened to be in possession of the jewelry. DeRose was a convicted felon and he and Tuggle had engaged in joint criminal activities previously, including “fencing” stolen property. The evidence of coercion was weak and totally unsubstantiated. Under these circumstances, the facts as disclosed in testimony of several witnesses and a taped recording of the transaction, not the prosecutor’s questions and comments, may have resulted in Tuggle’s conviction. This is a matter to be considered in the first instance by the district court. The judgment of the district court is vacated and the case is remanded to determine whether the constitutional error disclosed by this record was harmless beyond a reasonable doubt. Question: Are there two issues in the case? A. no B. yes Answer:

songer_casetyp1_7-2

F

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". UNITED STATES of America, Plaintiff, Appellee, v. CERTAIN LAND LOCATED IN the COUNTY OF BARNSTABLE, etc., et al., Defendants, Appellees. Appeal of Grace E. BESSAY, Defendant. No. 88-2029. United States Court of Appeals, First Circuit. Heard May 4, 1989. Decided Nov. 17, 1989. Jeffrey B. Axelrod, with whom Cynthia L. Amara, Gregor I. McGregor, McGregor, Shea & Doliner, P.C., William P. Homans, Jr., and Homans, Hamilton, Dahmen & Marshall, Boston, Mass., were on brief, for appellant. David C. Shilton, Appellate Staff, Land & Natural Resources Div., Washington, D.C., with whom Donald A. Carr, Acting Asst. Atty. Gen., Jeremiah T. O’Sullivan, U.S. Atty., Nicholas C. Theodorou, Asst. U.S. Atty., Boston, Mass., Jacques B. Gelin, Maria A. Iizuka, Dept, of Justice, Washington, D.C., and Robin Lepore, Office of Sol., Dept, of Interior, Boston, Mass., were on brief, for U.S. Before BOWNES and TORRUELLA, Circuit Judges, and RE, Judge. The Honorable Edward D. Re, Chief Judge of the United States Court of International Trade, sitting by designation. RE, Judge: Defendant-appellant, Grace E. Bessay, appeals from a judgment of the United States District Court of the District of Massachusetts which held that her “cottage” was not “improved property,” and, therefore, was not exempt from condemnation under the Cape Cod National Seashore Act, 16 U.S.C. § 459b et seq. (1982) (the Act). The district court concluded that, “[fjirst, the cottage does not qualify as a one-family dwelling[,] [and] [s]econd, the evidence is insufficient to establish that the same person owned both the cottage and land on which it rested as of September 1, 1959.” United States v. Certain Land Located in the County of Barnstable, No. 67-988-N, slip op. at 6 (D.Mass. Sept. 15, 1988). The question presented on this appeal is whether the cottage owned by Bessay is “improved property” within the meaning of the Act, and, therefore, exempt from condemnation. Since we hold that the district court correctly held that Bessay’s cottage was not “improved property” because it did not qualify as a “one-family dwelling,” we affirm. Hence, it is unnecessary to decide the issue of the date of ownership of the cottage and the land. BACKGROUND This case is one of a series that resulted from the 1967 condemnation of 251 acres of land in Provincetown, Massachusetts, pursuant to the Act, by the United States Department of the Interior. It traces its origins to a dispute between Andrew Fuller, Bessay’s predecessor in interest, and adjoining landowners, who are referred to as the Beede Group. Fuller claimed ownership of a certain structure or “shack” and the surrounding land through the adverse possession of his predecessor in interest, Dorothy Fearing. On January 30, 1978, the Beede Group filed a petition for a determination of title, requesting a finding that they owned the entire 251 acres in question. The District Court for the District of Massachusetts issued an order “declaring the Beedes to be seised and possessed of a good title to the entire tract in fee simple.” United States v. Certain Land Located in the County of Barnstable, 491 F.Supp. 1252, 1256 (D.Mass.1980). The court also declared that “Mr. Fuller ha[d] failed to show that the Fearings acquired a good title by adverse possession, and ...[,] [therefore,] Fuller ha[d] no title to any land on the locus and owns only the shack itself.” Id. at 1257 (citations omitted). The executrix of Fuller, Grace Bessay, appealed to this court, and we reversed on the question of adverse possession. We held that “[t]he Beedes were not only not the true owners, they could not even claim prior constructive possession of the lot.... Bessay, on the other hand, ha[d] possessory title tracing back through Fuller to Dorothy Fearing_” United States v. Certain Land Located in the County of Barnstable, 674 F.2d 90, 95 (1st Cir.1982). On that appeal, we declined to “reach any claim against the government on account of the shack or lot being ‘improved property,’ ” and remanded the case to the district court. Id. at 96. On remand, the district court made certain determinations as to deed measurements and ownership of the land. Most pertinent here is its finding “that the cottage owned by Grace Bessay does not constitute ‘improved property’ under the Cape Cod National Seashore Act and is therefore subject to condemnation by the government.” Certain Land Located in the County of Barnstable, No. 67-988-N, slip op. at 9. In the present case, Bessay appeals only that portion of the decision of the district court which relates to the “improved property” exemption under the Act. DISCUSSION Because the increasing popularity of Cape Cod threatened to jeopardize the historic and scenic integrity of the area, in 1961, Congress established the Cape Cod National Seashore Act, 16 U.S.C. § 459b et seq. (1982), to ensure the preservation of the region. Rather than exclude all persons from owning or living on the land within the seashore, persons who had owned homes in the area for a certain period of time were permitted to remain. In pertinent part, the Act provides that the authority of the Secretary of the Interi- or to acquire property in the Cape Cod region shall: (1) ... be suspended with respect to all improved property located within such area in all of the towns referred to in section 459b of this title for one year following August 7, 1961. (2) Thereafter such authority shall be suspended with respect to all improved property located within such area in any one of such towns during all times when such town shall have in force and applicable to such property a duly adopted, valid zoning bylaw approved by the Secretary in accordance with the provisions of section 459b-4 of this title. 16 U.S.C. § 459b-3(b) (1982) (emphasis added). Under the Act, “improved property” is defined as: a detached, one-family dwelling the construction of which was begun before September 1, 1959 ... together with so much of the land on which the dwelling is situated, the said land being in the same ownership as the dwelling, as the Secretary shall designate to be reasonably necessary for the enjoyment of the dwelling for the sole purpose of noncommercial residential use, together with any structures accessory to the dwelling which are situated on the land so designated. The amount of the land so designated shall in every case be at least three acres in area, or all of such lesser amount as may be held in the same ownership as the dwelling.... 16 U.S.C. § 459b-3(d) (emphasis added). As we stated in our decision in United States v. 7.92 Acres of Land (I), 769 F.2d 4, 8 (1st Cir.1985), there is “no doubt that the ‘improved property’ exemption of the Act has been designed and interpreted to prevent the eviction of bona fide or actual homeowners from established residences, thereby accommodating ‘the legitimate interests of existing residents.’ ” (quoting S.Rep. No. 428, 87th Cong., 1st Sess., reprinted in 1961 U.S.Code Cong. & Admin. News 2212, 2220) (emphasis in original). In the present case the Town of Prov-incetown has enacted zoning ordinances approved by the Secretary. Consequently, in determining whether Bessay’s cottage qualified for the “improved property” exemption, the district court had to decide whether the cottage was a “detached, one-family dwelling” within the statutory definition. The district court held that the cottage did not qualify for the exemption. Bessay, in her brief, contends that the “plain language of the Act mandates that [the cottage] be classified as a dwelling entitled to improved property status.” In her reply brief she further argues that “[t]he Department improperly urges the [c]ourt to employ a theory of statutory interpretation that ignores the plain and ordinary meaning of the word ‘dwelling.’ ” We disagree. The nature and purpose of the Act, as well as the meaning of “dwelling,” is not new to this court. In 7.92 Acres of Land (I), Bessay acquired two tracts of land in 1963 where there existed the remains of a structure that had been built in the 1930’s. Bessay stated that, after 1959, but prior to 1963, the structure was partially burned. Sometime after 1963, the remaining portion of the structure was also burned. Bessay claimed that “since there [was] evidence that a ‘dwelling’ existed on her land prior to 1959, she ha[d] ‘rebuilding rights,’ and, therefore, [was] entitled to an exemption from condemnation [as ‘improved property’] under section 459b-3 of the Act.” 7.92 Acres of Land (I), 769 F.2d at 7. We held that “[s]ince there was no dwelling on Bessay’s land at the time of the taking, and the land [was] unbuildable, ... [Bessay] ha[d] no rebuilding rights.... ” Id. at 9. In addition, we noted that: [T]he structure ... was never served by utilities, had no waste disposal facilities, and permits for such services or facilities were never obtained or issued. Clearly, the legislative history and the case law interpreting the Act reveal that Congress did not intend to include within the definition of “improved property” the kind of structure which may have existed on Bessay’s land. Id. at 8; see generally P. Rohan & M. Reskin, Condemnation Procedures & Techniques § 14.04[4] (Supp.1988). In United States v. 7.92 Acres of Land (II), No. 86-1825, slip op. at 2 (1st Cir. Aug. 31, 1987) [831 F.2d 281 (table)], cert. denied, 484 U.S. 1011, 108 S.Ct. 711, 98 L.Ed.2d 661 (1988), the structure in question “consisted of a ten by ten foot shack. It contained no plumbing, no electricity, no septic system and no foundation.” (citations omitted). The structure contained a “chemical toilet [and] a primer stove.” Id. Bessay stated that she “used rain water for washing and brought in fresh water for drinking.” Id. In 1972, Bessay applied to the National Park Service for a Certificate of Suspension from condemnation on the ground that her property was “improved property” within the meaning of the Act. Her application was denied by the Department, and the district court held that the property was not “improved.” See United States v. 7.92 Acres of Land (II), No. 75-3546-C, slip op. at 6 (D.Mass. Mar. 31, 1982). In affirming, we noted that, in light of our discussion of “improved property” in 7.92 Acres of Land (I), and because of the lack of “permits for utility service or waste disposal,” it was evident that “Bessay’s property was not improved so as to suspend the Secretary’s condemnation powers.” 7.92 Acres of Land (II), No. 86-1825, slip op. at 2-3. The structure in the present case, which is referred to by Bessay as a “cottage,” consists of a two room wooden structure, eighteen and-a-half by sixteen-and-a-half feet, with a five foot wide porch along its length, on a foundation of wooden posts or pilings imbedded in the sand. The cottage has no plumbing, no electricity, no insulation, no built-in waste disposal or bathing facilities. It is lighted by kerosene lamps, and, is serviced by gas appliances, a water pump located approximately 200 feet east of the structure, and a portable chemical toilet. It cannot be questioned that, guided by what we have said in our prior cases, Bes-say’s cottage is not a “dwelling.” Bessay, nonetheless, claims that the cottage at issue in this case differs from the structures that we examined in the prior cases. In her reply brief, she argues that, unlike the structure in 7.92 Acres of Land (I), where “there was no existing structure on the property, at the time of the taking, and the land was unbuildable because it was a coastal bank,” here her cottage “has been located on the property at all times relevant to this appeal” and “has been inhabited continuously during the warmer months.... ” Furthermore, she adds that this case differs from the one in 7.92 Acres of Land (II) because in this case her “house and its foundation are significantly larger and more durable than those in [7.92 Acres of Land (II)]” and “[ejlectric utilities, have never been available at [this] site, whereas they were available at the ... site [in 7.92 Acres of Land (II)].” In our present inquiry it is noteworthy that the district court found that “[p]rior to trial, Bessay herself agreed that the structures in the present case and in United States v. 7.92 Acres of Land (II) ... were substantially similar.” Certain Land Located in the County of Barnstable, No. 67-988-N, slip op. at 7. Our examination of the record also confirms that, in a “Joint Status Report” prepared before trial, Bes-say did “agree that the structures in the present case and in [7.92 Acres of Land (II)] are substantially similar.” Hence, notwithstanding the distinctions that are stressed by Bessay on this appeal, the district court was correct in concluding that the distinctions “are insufficient to convert the cottage into ‘improved property.’ ” Id. Furthermore, from the description of the cottage and from what we said in our prior cases, it is clear that “Congress did not intend to include within the definition of ‘improved property’ the kind of structure which ... existed [here].” See 7.92 Acres of Land (I), 769 F.2d at 8. Notwithstanding the explanations offered at the trial and in Bessay’s appellate briefs, it is crystal clear that, without electricity and plumbing, the cottage did not meet the Minimum Standards of Fitness for Human Habitation promulgated by the Massachusetts Department of Public Health on March 8, 1955, and the Province-town Health Department Regulations adopted on July 15, 1957. The Provincetown Health Department Regulations require approved septic systems, piped in water supply and an adequate number of “water closets, lavatories, bathtubs or showers_” The Regulations also state that “[e]very kitchen sink, lavatory and bathtub or shower ... shall be properly connected to both hot and cold water lines.” (emphasis in original). Additionally, the Massachusetts Minimum Standards of Fitness for Human Habitation require “a kitchen sink in good working condition and properly connected to water and sewer systems ... [and] [w]here connection ... is not practicable, a dwelling shall be served by cesspools, septic tanks or other means of subsurface disposal of sewage. ...” At the trial, both Bessay and her witness, Peter Clemons, acknowledged that there are no pipes which connect a water supply to the cottage, that the kitchen sink is not connected to the water, that there is no bathtub or shower, and that there are no water heating facilities in the cottage. See Record at 60-61, 112, 116, Certain Land Located in the County of Barnstable (No. 67-988-N). Hence, Bessay’s contention that the cottage meets the criteria set forth in the Massachusetts Minimum Standards of Fitness for Human Habitation is contradicted by the facts and the trial testimony. In her reply brief, as an alternative argument, Bessay contends that the Department “incorrectly asserts that a structure must meet standards found in local and state health laws in order to be considered a ‘dwelling’_” (emphasis in original). According to Bessay, “[t]he Act merely provides that the Department shall issue regulations specifying standards for approval by the Department of a town’s zoning bylaws.” She asserts that “[t]he Provincetown Zoning Bylaw ... does not make any mention of local or state health statutes_” (emphasis in original). The Act provides that the authority of the Secretary to acquire property by condemnation shall be suspended as to all improved property “when such town shall have in force and applicable to such property a ... valid zoning bylaw approved by the Secretary_” 16 U.S.C. § 459b-3(b)(2). This provision, which suspends the Secretary’s power to condemn improved property during the existence of a valid zoning bylaw, was enacted because “Congress could not enact local zoning ordinances to avoid condemnation....” 7.92 Acres of Land (I), 769 F.2d at 8. The legislative history of the Act acknowledges that: If the Federal Government ... is to establish a national seashore in such a way as not to interfere with the continued ownership and enjoyment of ... property by private landowners ..., it is only reasonable that the communities involved adopt zoning laws which will assure that the property within the seashore will be used in a manner consistent with the purposes of the seashore. S.Rep. No. 428, 87th Cong., 1st Sess., reprinted in 1961 U.S.Code Cong. & Admin. News 2212, 2235. “Once such a bylaw is approved [by the Secretary], the Secretary becomes powerless to condemn improved property within that town[ ] ... as long as that improved property is put to a use consistent with the bylaw.” United States v. Certain Lands in Truro, 476 F.Supp. 1031, 1033 (D.Mass.1979). Prior case law had defined “improved property” consistently with the requirements of state and local law. It is not unreasonable, therefore, to look to this criteria when examining the cottage. Furthermore, as stated by the district court in United States v. 7.92 Acres of Land (II), “[w]hether a particular structure conforms with existing state health laws is pertinent, objective evidence with respect to its legal status as a dwelling.” No. 75-3546-C, slip op. at 6. CONCLUSION In agreement with our prior decisions as to the nature and purpose of the Act, and the findings and conclusions of the district court, we hold that the structure that is the subject of this litigation is not “improved property” within the meaning of the Cape Cod National Seashore Act. Since we agree with the district court that Bessay’s “cottage does not qualify as a one-family dwelling,” and, therefore, is not exempt from condemnation as “improved property,” we need not decide whether the land and building were in the same ownership in September of 1959. Therefore, the judgment of the district court is affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:

sc_decisiondirection

B

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. HENSLEE, COLLECTOR OF INTERNAL REVENUE, v. UNION PLANTERS NATIONAL BANK & TRUST CO. et al. No. 90. Argued December 14, 1948. Decided January 3, 1949. Arnold Raurn argued the cause for petitioner. With him on the brief were Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack, Lee A. Jackson and Harry Baum. Sam Polk Walker argued the cause for respondents. With him on the brief was Roane Waring. Per Curiam. Respondents are the executors and trustees of the estate of William Bate Williams. They brought this action for refund, with interest, of $35,899.12 of federal estate taxes and interest paid under protest. The relevant facts, set forth in respondents’ complaint and admitted by the Collector’s motion to dismiss, are as follows: William Bate Williams died in 1943. Under the terms of his will, the entire gross estate of $508,411.17 was bequeathed to respondents to hold in trust for the testator’s “beloved mother, Elizabeth Bate Williams, for and during her natural life, with the full power and authority herein conferred. “I hereby direct both my executors and my trustees to pay to my mother the sum of Seven Hundred Fifty (750.00) Dollars a month to be used by her as she sees fit. In the event the income from my estate is not sufficient to pay the said Seven Hundred Fifty ($750.00) Dollars each month, then my executors and trustees are hereby empowered, authorized and directed to encroach on the corpus of the estate to pay said amount and to sell any of my property, real or personal, for this purpose. “In addition to this amount my said executors and trustees are authorized and empowered to use and expend in their discretion any portion of my estate, either income or principal, for the pleasure, comfort and welfare of my mother. “The first object to be accomplished in the administration and management of my estate and this trust is to take care of and provide for my mother in such manner as she may desire and my executors and trustees are fully authorized and likewise directed to manage my estate primarily for this purpose.” The will went on to provide for distribution of the corpus of the estate remaining at the mother’s death. Twenty-five per cent of the total remaining estate was bequeathed to the testator’s cousin, and stated sums in cash were left to other named legatees. After these legacies, the balance of the estate was directed to be paid over to four named charities, in equal shares. At the time of the testator’s death the estate was earning a net income of approximately $15,000 per year, $6,000 more than the amount directed to be paid, at $750 per month, to the testator’s mother. The mother at that time was eighty-five years old, lived on substantially less than $750 per month, and had independent investments worth approximately $100,000 which netted her an income of about $300 per month. A woman of moderate needs and without dependents, she died three years later without having requested respondents to invade the trust corpus in her behalf. The disputed estate tax liability resulted from respondents’ attempt to deduct from the gross estate the portion bequeathed to the four charities, in reliance on the charitable deduction provision of § 812 (d) of the Internal Revenue Code. The Commissioner denied the deduction. The Collector here resists the refund claim, on the ground that the possibility of invasion of the corpus on behalf of the testator’s mother prevented the ultimate charitable interest, at the testator’s death, from being “presently ascertainable, and hence severable from the interest in favor of the private use,” within the meaning of the applicable Treasury Regulation. On the authority of Merchants Bank v. Commissioner, 320 U. S. 256, the District Court granted the Collector’s motion to dismiss. 74 F. Supp. 113. The Court of Appeals reversed. 166 F. 2d 993. It held that, notwithstanding the language of the testamentary provision for the "pleasure, comfort and welfare” of the mother, the complaint’s allegations of the mother’s great age, independent means and modest tastes raised a triable issue of fact as to whether the trust corpus was threatened with invasion and the charitable interest hence subject to depletion in favor of the testator’s mother. We agree with the District Court that this case is governed by the decision in the Merchants Bank case and that the suit should be dismissed. It is apparent on the face of the complaint that this testator’s will did not limit the trustees’ disbursements to conformity with some ready standard — as where, for example, trustees are to provide the prime beneficiary with such sums as “may be necessary to suitably maintain her in as much comfort as she now enjoys.” Ithaca Trust Co. v. United States, 279 U. S. 151, 154. The stated income here directed to be paid to the mother was “to be used by her as she sees fit.” Beyond this the trustees were empowered to invade or wholly utilize the corpus of the estate for the mother’s “pleasure, comfort and welfare,” bearing in mind the testator’s injunction that “The first object to be accomplished ... is to take care of and provide for my mother in such manner as she may desire . . . .” As in the Merchants Bank case, where the trustees had discretion to disburse sums for the “comfort, support, maintenance, and/or happiness” of the prime beneficiary, so here we think it the “salient fact . . . that the purposes for which the widow could, and might wish to have the funds spent do not lend themselves to reliable prediction.” 320 U. S. 256, 258, 262. We do not overlook the unlikelihood that a woman of the mother’s age and circumstances would abandon her customary frugality and squander her son’s wealth. But, though there may have been little chance of that extravagance which would waste a part or consume the whole of the charitable interest, that chance remained. What common experience might regard as remote in the generality of cases may nonetheless be beyond the realm of precise prediction in the single instance. The contingency which would have diminished or destroyed the charitable interest here considered might well have been insured against, but such an arithmetic generalization of experience would not have made this charitable interest “presently ascertainable.” “Rough guesses, approximations, or even the relatively accurate valuations on which the market place might be willing to act are not sufficient.” Merchants Bank v. Commissioner, supra at 261. Nor do we think it significant that the trust corpus was intact at the mother’s death, for the test of present ascertainability of the ultimate charitable interest is applied “at the death of the testator.” Ibid. The charitable deduction is a matter of congressional grace, and it is for Congress to determine the advisability of permitting amendment of estate tax returns at such time as the probable vesting of the charitable interest has reduced itself to unalterable fact. Reversed-. Mr. Justice Douglas and Mr. Justice Jackson dissent upon the grounds stated in dissent in Merchants Bank v. Commissioner, 320 U. S. 256, at 263. 26 U. S. C. §812 (d), 53 Stat. 124-125, as amended by Revenue Act of 1942, §408 (a), 56 Stat. 949, and Revenue Act of 1943, §511 (a), 58 Stat. 74-75. “If a trust is created for both a charitable and a private purpose, deduction may be taken of the value of the beneficial interest in favor of the former only insofar as such interest is presently ascertainable, and hence severable from the interest in favor of the private use. . . .” U. S. Treas. Reg. 105 § 81.44 (1942). Cf. id. at §81.46: “If the legatee, devisee, donee, or trustee is empowered to divert the property or fund, in whole or in part, to a use or purpose which would have rendered it, to the extent that it is subject to such power, not deductible had it been directly so bequeathed, devised, or given by the decedent, deduction will be limited to that portion, if any, of the property or fund which is exempt from an exercise of such power.” In view of the express priority accorded the mother’s wishes, respondents’ fiduciary duty to the ultimate beneficiaries, private and charitable, was ineffective to guarantee preservation of any predictable fraction of the corpus for disposition after the mother’s death. The testator, indeed, made the gifts to charity subordinate not only to his mother’s interest but to that of all the private beneficiaries, stating in his will that the charitable interest “is a residuary bequest . . . and is not to infringe on any of the other legacies here-inbefore provided.” “. . . [T]he fundamental question in the case at bar, is not whether this contingent interest can be insured against or its value guessed at, but what construction shall be given to a statute. Did Congress in providing for the determination of the net estate taxable, intend that a deduction should be made for a contingency, the actual value of which cannot be determined from any known data? Neither taxpayer, nor revenue officer — -even if equipped with all the aid which the actuarial art can supply — could do more than guess at the value of this contingency. It is clear that Congress did not intend that a deduction should be made for a contingent gift of that character.” Humes v. United States, 276 U. S. 487, 494. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspecifiable 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. BUTLER et al. v. DEXTER No. 75-623. Decided April 19, 1976 Per Curiam. This is an appeal under 28 U. S. C. § 1253 from an order of a three-judge District Court enjoining the appellants from prosecuting the appellee on the felony charge that his motion picture projector is a “criminal instrument” under § 16.01 of the Texas Penal Code. Since no substantial question about the constitutionality of § 16.01 has been raised, we dismiss the appeal for want of jurisdiction in this Court. The facts of this case are relatively simple. The ap-pellee, Richard Dexter, ran the Fiesta Theatre in San Antonio, Tex., which in June and July 1974 was exhibiting the film “Deep Throat.” On three separate occasions, an officer of the San Antonio police force paid for admission, entered the theater, and viewed the film. The officer, on each occasion, then wrote out a “Motion for Adversary Hearing” to determine whether there was probable cause to seize the film for violating the Texas obscenity laws. Each time, a magistrate held a short “hearing” in the lobby of the theater, at which he heard the testimony of the police officer, then viewed the film. Each time, the magistrate then issued a warrant to seize the film and to seize the projector as a “criminal instrument” under § 16.01 of the Texas Penal Code. Ap-pellee was then arrested and charged with “commercial obscenity” in violation of Texas Penal Code, § 43.23, and “use of a criminal instrument” in violation of § 16.01. The charge of commercial obscenity is a Class B misdemeanor, carrying a fine not to exceed $1,000, confinement not to exceed 180 days, or both. Appellee did not, according to the trial court, pursue any complaint about these charges in the federal court. He was brought to trial on these charges in the state courts and they are not in issue here. His challenge, rather, was against the prosecutor’s charging him with violations of the criminal instruments statute for his possession of ordinary 16-mm. movie projectors. Violation of that statute is a third-degree felony, and carries a penalty of from 2 to 10 years’ confinement and a fine not to exceed $5,000. Although the felony complaints were lodged and appellee was forced to post some $31,000 in bonds, these charges were never presented to the grand jury. A “criminal instrument,” for purposes of the Texas statute, is anything “specially designed, made, or adapted for the commission of an offense.” From an examination of the “clear language of the statute” and from an examination of the unofficial “practice commentary” to the statute, the District Court concluded that “[b]y no stretch of the imagination could this statute be used to cover the plaintiff’s actions or the possession of an ordinary portable 16 millimeter motion picture projector with removable interchangeable reels.” From its conclusion as to the obvious inapplicability of the statute, and from the prosecutor’s failure to present the charges to the grand jury, the District Court found that “[cjharging the plaintiff with a § 16.01 violation . . . cannot have been undertaken with any design to actually convict the plaintiff of the crime. .. . Such a blatant use of an inappropriate statute, which bootstrapped the misdemeanor offense into a felony was effective in requiring that bail for a felony offense be set, not once but several times. The authorities could not believe, however, that Dexter would ultimately be convicted.” Appellants present several contentions regarding the jurisdiction of the District Court and the correctness of its decision. We do not reach these questions, however, as we have concluded that we have no jurisdiction to consider this case on direct appeal. Jurisdiction is predicated on 28 U. S. C. § 1253, granting the right of direct appeal from an order “granting an . . . injunction in any civil action . . . required by any Act of Congress to be heard and determined by a district court of three judges.” Title 28 U. S. C. § 2281 provides that “[a]n . . . injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute . . . shall not be granted . . . upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges . . . .” Under this statute a three-judge court is required if “a complaint seeks to enjoin a state statute on substantial grounds of federal unconstitutionality, . . . even though nonconstitutional grounds of attack are also alleged . . . .” Florida Lime Growers v. Jacobsen, 362 U. S. 73, 85 (1960). However, in this case the District Court ruled that the actions of the appellants were not taken in the enforcement of the statute and thus no serious question about the constitutionality of the statute was presented. As noted above, the District Court found that the felony “criminal instruments” charges were made in bad faith and without any design actually to convict ap-pellee on those charges. Rather, the felony charges were made as part of a pattern of harassment by the San Antonio police designed to force appellee to stop exhibiting “Deep Throat.” But the arrests and the charges were not made in any attempt to enforce § 16.01. Nor was the injunction granted on the ground that § 16.01 was unconstitutional; rather, it was granted on the ground that the local officials had acted unconstitutionally in using that statute as a pretext for arrest and the setting of felony bonds when they knew that the statute was inapplicable and that no conviction could ever be obtained. Since no substantial question concerning the constitutionality of § 16.01 was presented to the District Court, a three-judge court was not required. Cf. Bailey v. Patterson, 369 U. S. 31 (1962). A somewhat better argument might be made that the prosecutor’s actions were part of an effort to enforce the commercial obscenity statute, albeit in a somewhat irregular manner. However, it could not be contended that the District Court grounded its injunction in any way on the unconstitutionality of the commercial obscenity statute; the constitutionality of that statute was not even considered in this case. Since a three-judge court was not required in this case, the appeal should have been taken to the Court of Appeals for the Fifth Circuit. Since the time for appeal may have passed, we vacate the judgment and remand to the District Court so that it may enter a fresh decree from which a timely appeal can, if desired, be taken. Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90 (1974); Moody v. Flowers, 387 U. S. 97 (1967). It is so ordered. Texas Penal Code Ann. § 16.01 (1974): “Unlawful Use of Criminal Instrument “(a) A person commits an offense if: “(1) he possesses a criminal instrument with intent to use it in the commission of an offense; or “(2) with knowledge of its character and with intent to use or aid or permit another to use in the commission of an offense, he manufactures, adapts, sells, installs, or sets up a criminal instrument. “(b) For purposes of this section, ‘criminal instrument’ means anything that is specially designed, made, or adapted for the commission of an offense. “(c) An offense under this section is a felony of the third degree.” Although the appellee has not moved to dismiss the appeal, this Court must take notice on its own motion where jurisdiction does not appear. Brown Shoe Co. v. United States, 370 U. S. 294, 306 (1962). There was another occasion where substantially the same events occurred, but appellee was not arrested, although a theater employee named William Walker was. Tex. Penal Code Ann. § 12.22 (1974). Tex. Penal Code Ann. § 12.34 (1974). Appellants argued below that the District Attorney believed he was precluded from pursuing those charges by the restraining order issued by the federal court. However, the restraining order specifically provided that "no pending state criminal prosecutions are enjoined and the State is free to bring to trial and try any such cases.” The District Judge also informed the appellants on at least two occasions during the hearings that the restraining order did not bar the bringing of indictments on any pending charges. See n. 1, supra. Universal Amusement Co. v. Vance, 404 F. Supp. 33, 48, 51 (SD Tex. 1975). Id., at 48. Cf. Phillips v. United States, 312 U. S. 246, 252 (1941): “But an attack on lawless exercise of authority in a particular case is not an attack upon the constitutionality of a statute conferring the authority .... It is significant that the United States in its complaint did not charge the enabling acts of Oklahoma with unconstitutionality, but assailed merely the Governor’s action as exceeding the bounds of law.” This situation is, of course, to be distinguished from an attack on a statute said to be unconstitutional “as applied.” See also Ex parte Bransford, 310 U. S. 354 (1940). We have no occasion to consider whether the District Court was correct in deciding that § 16.01 did not — and that appellants knew it did not — authorize appellants’ actions. Nor do we consider whether, having so decided, the court was empowered to grant appellee relief enjoining the State from prosecuting him on the pending felony charges purportedly filed pursuant to that section. We hold only that by having made that decision, the court removed from the case any possibility that the statute might be enjoined on the grounds of its unconstitutionality. This ease was consolidated in the District Court with several other cases, at least some of which did bring into question the constitutionality of a state statute. Each case before this Court, however, must' be considered separately to determine whether or not this Court has jurisdiction to consider its merits. 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_attyfee

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 court's ruling on attorneys' fees 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". In re the ESTATE OF Michael Patrick SMITH and Carolyn Finnell, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, and People of the State of Colorado, ex rel., J.D. MacFarlane; Attorney General for the State of Colorado; Colorado Department of Health; Colorado Board of Health; Colorado Department of Social Services; Colorado Board of Social Services, Plaintiffs-Intervenors, v. Thomas J. O’HALLORAN, doing business as Heritage House Nursing Care Center, individually and in his capacity as Administrator of Heritage House Associates; Heritage House Associates, a limited partnership, doing business as Heritage House Nursing Care Center; Oscar Gross; H. Sol Ceronsky, Jack D. Feuer; M.J. Beitscher; Harry Berman; Bernard Ceronsky; Louis L. Fox; Howard D. Greyber; Martin Gross; Solomon Gross; Arnold Heller, M.D.; Barry B. Melnick; Manuel Nash; Henry G. Foley, in his capacity as Executive Director of the Colorado Department of Social Services; Thomas J. Gillgannon, in his capacity as Acting Director of the Medical Assistance Division of the Colorado Department of Social Services; Margaret Marshall; Warren A. Woalaver; Manuel M. Diaz; John H. Fowler; Joanna Paterson; Thomas C. Hickman; Gilbert R. Slade; James H. Vincent, in their official capacity as constituting the Colorado Board of Social Services; Edward Dreyfus, M.D., in his capacity as Director of the Colorado Department of Health; William M. Covode; Robert R. Sabin; Warren A. Broaderson; John Eeliff, M.D.; J.W. Kriss, D.D.S.; Ruth M. Wright; Richard Bluestein; Charles Mitchell; Margaret D. Lewis, in their official capacity as constituting the Colorado Board of Health, Defendants, Louis Sullivan, M.D., in his capacity as Secretary of the Department of Health and Human Services, Defendant-Appellee. No. 90-1105. United States Court of Appeals, Tenth Circuit. April 22, 1991. Rehearing Denied July 2, 1991. Edwin S. Kahn (Terre Lee Rushton and Christine L. Murphy with him on the briefs), Denver, Colo., for plaintiffs-appellants and plaintiffs-intervenors. John F. Daly (Stuart M. Gerson, Asst. Atty. Gen., Michael J. Norton, U.S. Atty., Michael Jay Singer with him on the brief), Washington, D.C., for defendant-appellee. Before ANDERSON, BARRETT and McWILLIAMS, Circuit Judges. BARRETT, Senior Circuit Judge. Plaintiffs-appellants seek review of three orders of the district court denying in part and granting in part their request for attorneys’ fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. §§ 2412(b) and (d)(1)(A) and the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988. A summary of the lengthy litigative history will facilitate our review. Plaintiffs initiated this class action in 1975 against the Secretary of Health and Human Services (Secretary) seeking relief under 42 U.S.C. § 1983 on behalf of medicaid recipients residing in nursing homes in Colorado. Plaintiffs alleged that the Secretary had a statutory duty under 42 U.S.C. §§ 1396-1396n (1982), commonly referred to as the Medicaid Act, to develop and implement a system of nursing home review designed to ensure that medicaid recipients residing in medicaid certified nursing homes actually receive the optimal medical and psychological care they are entitled to under the Medicaid Act. The plaintiffs further alleged that the enforcement system developed by the Secretary was “facility oriented” and not “patient oriented,” and thereby failed to meet the statutory mandate of the Act. On February 8, 1983, the district court dismissed plaintiffs’ claims and entered judgment in favor of the Secretary, finding that although a “patient oriented” system was feasible, the Secretary did not have the duty to introduce and require the use of such a system. Estate of Smith v. O’Halloran, 557 F.Supp. 289 (D.Colo.1983). Specifically, the district court found that: Particularly at issue in this case is ... [the] ... development of the forms required for the states to demonstrate that facilities participating in the Medicaid program under an approved state plan meet the conditions of participation which are contained in the Act. Form SSA-1569 is the form which HHS has required the states to use. It is said to be defective because it is “facility-oriented” rather than “patient-oriented.” That characterization is appropriate and HHS has admitted it repeatedly. ****** It is clear from the evidence in this case that it is feasible for the Secretary to require the use of a patient care management system which would control the assessment of patient needs, facilitate the development of an appropriate patient care plan, provide the mechanism for monitoring the delivery of care by the facility itself ... and probably improve the quality of health care services provided for all Medicaid recipients. The question then, is not whether such a system is possible or feasible, or whether it is desirable. The issue before this court is whether the failure to introduce and require the use of such a system is a violation of a statutory duty. The answer is no. ****** Based on the evidence presented at trial and on my analysis of the Medicaid Act, I hold that the Secretary’s failure to introduce and require the use of a patient care management system of the sort advocated by the plaintiffs is not a violation of her statutory duties under the Act. Therefore, the plaintiffs’ claims against the federal defendant must be dismissed. 557 F.Supp. at 295, 299. Plaintiffs appealed. On October 29, 1984, this court reversed and remanded, holding that the Secretary’s failure to promulgate patient oriented regulations was an abdication of her duty and that the Secretary’s failure to follow the Act’s focus on a patient oriented enforcement system was arbitrary and capricious. Estate of Smith v. Heckler, 747 F.2d 583 (10th Cir.1984). We there held that: After carefully reviewing the statutory scheme of the Medicaid Act, the legislative history, and the district court’s opinion, we conclude that the district court improperly defined the Secretary’s duty under the statute.... Nothing in the Medicaid Act indicates that Congress intended the physical facilities be the end product. Rather, the purpose of the Act is to provide medical assistance and rehabilitative services. 42 U.S.C. § 1396. The Act repeatedly focuses on the care to be provided, with facilities only being part of that care.... * * * * * * ... In fact, the quality of care provided to the aged is the focus of the Act. Being charged with this function, we must conclude that a failure to promulgate the regulations that allow the Secretary to remain informed, on a continuing basis, as to whether facilities receiving federal money are meeting the requirements of the Act, is an abdication of the Secretary’s duty.... The district court made a factual finding that the Secretary’s current method of informing herself as to whether the facilities in question are satisfying the statutory requirements is “facility oriented” rather than “patient oriented”.... Having determined that the purpose and the focus of the Act is to provide high quality medical care, we conclude that by promulgating a facility oriented enforcement system [in lieu of a patient oriented system] the Secretary has failed to follow that focus and such failure is arbitrary and capricious. 747 F.2d at pp. 589-590. On April 29, 1985, the district court ordered the Secretary to file a plan of action and timetable to be followed in compliance with this court’s remand. On May 14, 1985, plaintiffs filed an application for $352,689 in attorneys’ fees pursuant to § 1988 and the EAJA. On June 10, 1985, the Secretary filed a plan. On August 9, 1985, the district court entered an opinion and order in which it denied plaintiffs’ motion for attorneys’ fees. Estate of Smith v. Heckler, 622 F.Supp. 403 (D.Colo.1985). In so doing, the district court found that attorneys’ fees were not recoverable under § 1988 against a federal defendant whose challenged action was based on federal rather than state law. The court utilized the same basic reasoning in finding that plaintiffs were not entitled to recover attorneys’ fees under § 2412(b), but the court further determined that attorney fees were not recoverable under § 2412(d)(1)(A) since the Secretary’s position was reasonable and therefore substantially justified. The court observed: It is true that this court’s decision was reversed by the Tenth Circuit Court of Appeals. However, in view of the fact that this court saw fit to rule in favor of the Secretary on every claim asserted against her, it cannot be said that the Secretary’s position, both legal and factual, was not reasonable. 622 F.Supp. at p. 408. Within its opinion and order, the district court ordered that the Secretary, by October 31, 1985, “develop and publish a notice of proposed rule making ... regarding a new system which will enable the Secretary to perform the duty prescribed by the Tenth Circuit Court of Appeals ...,” 622 F.Supp. at p. 412. On October 4, 1985, plaintiffs moved for relief from or amendment to judgment. Plaintiffs alleged that in view of certain amendments to § 2412(d) which had become effective on August 5, 1985, and which applied to pending eases, the district court should reconsider its finding of substantial justification vis a vis their claim for attorneys’ fees under § 2412(d)(1)(A). On June 13, 1986, the Secretary published a Final Rule. Thereafter, plaintiffs moved for declaratory judgment alleging that the Rule was inadequate. On March 24, 1987, the district court entered an opinion and order in which it found that the Rule was inadequate because it failed to provide a sufficient description of or actual substance of the proposed system. Estate of Smith v. Bowen, 656 F.Supp. 1093, 1096 (D.Colo.1987). The court found that “[t]he refusal of the Secretary to be bound by specific procedures, guidelines and forms is a dereliction of his duty as defined in this litigation.” Id. The court also found that the procedure utilized by the Secretary for providing comment on the Rule was flawed in that it did not provide sufficient time for meaningful comment and that “[t]he Secretary’s failure to extend the period [for comment] pursuant to the numerous requests to do so was arbitrary and capricious.” 656 F.Supp. at 1099. Lastly, the court directed that the Secretary publish a notice of proposed rule-making on or before June 1, 1987. Upon the Secretary’s motion, the time for publication was extended to July 1, 1987. On April 22, 1987, plaintiffs filed a supplemental application for attorneys’ fees and costs for services from May 7, 1985, through April 22, 1987. On July 1, 1987, the Secretary published a notice of proposed rule. Plaintiffs subsequently filed a motion for contempt or in the alternative for an order of mandamus, alleging that the Secretary had failed to publish a notice of proposed rulemaking in accordance with the prior order of the district court. On December 18, 1987, the district court entered an opinion and order finding that “[t]he law of this case is clear,” that the Secretary had failed to comply with its prior order, and that such failure constituted contempt of court. Estate of Smith v. Bowen, 675 F.Supp. 586, 589-90 (D.Colo.1987). The court also directed the Secretary “to promulgate a rule” in accordance with its order. Id. The Secretary appealed the contempt finding to this court but later dismissed the appeal and subsequently published new regulations in conformity with our remand and the orders of the district court. On January 19, 1988, plaintiffs filed a second supplemental application for attorneys’ fees and costs incurred from October 5, 1985, through January 19, 1988. Plaintiffs’ October 4, 1985, motion for relief from or amendment to judgment, directed to the district court’s August 9, 1985, opinion and order, was “overlooked” by the district court until March 3, 1988. On that date, the district court entered a minute order denying the motion after finding “that there is nothing persuasive presented which would change the conclusions reached in the subject order.” (R., Vol. II, Tab 46). On June 17, 1988, more than three and one-half years following our reversal and remand in Estate of Smith v. Heckler, 747 F.2d 583, the Secretary promulgated regulations in compliance with our remand and the repeated orders of the district court. On March 15, 1990, the district court entered an order disposing of plaintiffs’ two supplemental applications for attorneys’ fees and costs from May 7, 1985, and January 19, 1988. In so doing, the court found that: For attorneys’ fees purposes, the definitive order in this case is that of March 24, 1987. In that order, this court explicitly directed the Secretary to promulgate specific and binding procedures, guidelines, and forms, and set out the necessary procedural course for the promulgation of a NPRM [notice of proposed rule making] that would satisfy the mandates of this court and the Court of Appeals. The Secretary did not comply with those directives, and subsequently was found in contempt. From the issuance of the March 24, 1987 order, the law of this case was clear, and the Secretary’s non-compliance unreasonable. The Secretary’s actions thus were not “substantially justified” under the EAJA, and the plaintiffs are entitled to the fees that they incurred because of those actions. (R., Vol. II, Tab 54, at p. 7). Thereafter, the district court awarded plaintiffs’ attorneys’ fees of $12,231.25, representing $125 per hour for the 97.85 hours of work performed by plaintiffs’ counsel after the district court’s order of March 24, 1987. In awarding plaintiffs’ attorneys’ fees at $125 per hour, the court acknowledged that the plaintiffs’ attorneys were entitled to a fee enhancement under the EAJA inasmuch as their “experience over the fifteen year course of this litigation rendered them uniquely qualified to aid this court in identifying and remedying the deficiencies in the Secretary’s compliance with the applicable court orders.” (R., Yol. II, Tab 54, at p. 8.). On appeal, plaintiffs challenge the district court’s orders of August 9, 1985, and March 3, 1988, denying attorneys’ fees and costs from the commencement of this litigation to May 7, 1985, as well as that portion of the March 15, 1990, order denying fees from May 7, 1985, to March 24, 1987. The Secretary has not cross-appealed from that portion of the March 15, 1990, order awarding attorneys’ fees to plaintiffs from March 24, 1987, to March 15, 1990. Plaintiffs contend that: (1) they are entitled to attorneys’ fees under § 2412(d)(1)(A) since the commencement of the action; (2) the court erred in denying their request for attorneys’ fees under § 1988; and (3) they are entitled to attorneys’ fees under § 2412(b). Because of its dispositive nature, our discussion will be limited to plaintiffs’ first contention. We review a district court’s application of the EAJA under an abuse of discretion standard. Pierce v. Underwood, 487 U.S. 552, 562, 108 S.Ct. 2541, 2548, 101 L.Ed.2d 490 (1988) (“We think that the question of whether the Government’s litigating position has been ‘substantially justified’ is ... likely to profit from the experience that an abuse-of-discretion rule will permit to develop”). Plaintiffs contend that they are entitled to attorneys’ fees under § 2412(d)(1)(A) for work done since the inception of the case. Plaintiffs argue that the district court abused its discretion in denying all pre-con-tempt fees. We agree. The EAJA is a waiver of sovereign immunity and therefore must be strictly construed. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 3277, 77 L.Ed.2d 938 (1983); United States v. Charles Gyurman Land & Cattle Co., 836 F.2d 480, 483 (10th Cir.1987). Under § 2412(d)(1)(A), a prevailing non-government party “shall” be awarded fees “unless” the court finds that the position of the government was “substantially justified” or that special circumstances make an award unjust: A three way classification is thus envisioned: 1) the non-government party prevails and the government’s position is not substantially justified, 2) the non-government party prevails and the government’s position is substantially justified, and 3) the non-government party does not prevail. Only in the first of these cases “shall” the court award attorney fees. Conversely, the court may not award fees in the second and third cases. United States v. Charles Gyurman Land & Cattle Co., 836 F.2d at 483. Under the EAJA, the government bears the burden of showing that its position was substantially justified. Hadden v. Bowen, 851 F.2d 1266, 1267 (10th Cir.1988). To do so, the government must prove that its case had a reasonable basis in law and in fact. Id. The term “substantially justified” has been defined as “justified in substance or in the main — that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, supra, 487 U.S. at 565, 108 S.Ct. at 2550. The fact that a district court, such as here, has upheld an agency’s decision does not establish that the agency’s position was substantially justified. Gatson v. Bowen, 854 F.2d 379, 380-81 (10th Cir.1988); Weakley v. Bowen, 803 F.2d 575, 579 (10th Cir.1986). Applying these standards to the instant case, we must hold that the district court erred in finding that the position of the Secretary was substantially justified under § 2412(d)(1)(A) from the commencement of this litigation until March 24, 1987, in light of this court’s prior holding that the Secretary had abdicated her duty under the Medicaid Act when she failed to promulgate patient oriented regulations and that her failure to follow the patient oriented focus of the Act was arbitrary and capricious. See Estate of Smith v. Heckler, 747 F.2d at 589-90. The district court abused its discretion, when, following our remand, it denied plaintiffs’ initial request for attorneys’ fees under § 2412(d)(1)(A) based on its finding that “in view of the fact that this court saw fit to rule in favor of the Secretary on every claim asserted against her, it cannot be said that the Secretary’s position, both legal and factual, was not reasonable.” Estate of Smith v. Heckler, 622 F.Supp. at 408. As set forth, swpra, the fact that a district court has upheld an agency’s decision does not establish that the agency’s position was substantially justified. Gatson v. Bowen; Weakley v. Bowen. Similarly, the district court abused it discretion when it denied, in part, plaintiffs’ supplemental applications for attorneys’ fees under § 2412(d)(1)(A) for services rendered from May 7, 1985, to March 24, 1987, based on its finding that “[f]or attorneys’ fees purposes, the definitive order in this case is that of March 24, 1987.” (R., Yol. II, Tab 54, at p. 7). This finding overlooks this court’s prior holding of October 29, 1984, (Estate of Smith v. Heckler, supra) that the Secretary’s failure to promulgate patient oriented regulations was an abdication of her duty and that the Secretary’s failure to follow the Act’s focus was arbitrary and capricious. Moreover, the finding also overlooks the fact that the Secretary did not promulgate her regulations in accordance with this court’s opinion and the repeated orders of the district court until June 17, 1988, some three and one-half years after our remand. After this court held that the Secretary’s failure to promulgate patient oriented regulations was an abdication of her duty under the Act and arbitrary and capricious, there was no justification for the district court’s subsequent findings that the Secretary’s actions were nevertheless substantially justified under § 2412(d)(1)(A) until March 24, 1987. 28 U.S.C. § 46(c) provides that eases and controversies shall be heard by a court of appeals panel of not more than three judges unless a hearing or rehearing en banc is ordered by a majority of the circuit judges of the circuit who are in regular active service. See also Tenth Circuit Rule 35. A panel of a court of appeals is not authorized to overrule a prior decision of the court; such overruling can only be done en banc. United States v. Berryhill, 880 F.2d 275, 277 (10th Cir.1989). Estate of Smith v. Heckler, supra, was a panel determination. A petition for rehearing with a suggestion for rehearing en banc was denied. Under these circumstances, that opinion is binding on this panel, just as it is binding on the district court. REVERSED AND REMANDED for further proceedings consistent herewith. . § 2412(b) provides in part: Unless expressly prohibited by statute, a court may award reasonable attorney fees and expenses of attorneys ... to the prevailing party in any civil action brought by or against the United States.... The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award. § 2412(d)(1)(A) provides in part: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ... unless the court finds that the position of the United States was substantially justified or the that special circumstances make an award unjust. . § 1988 provides in part: Every person who, under color of any statute, ordinance, regulation ... of any State ... subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges or immunities secured by the Constitution ... shall be liable to the party injured.... . In 1985 § 2412(d)(1)(A) was amended to further define "civil action” as one “including proceedings for judicial review of agency action”. The amendment applied to cases pending on or commenced on or after August 5, 1985. Ewing v. Rodgers, 826 F.2d 967, 968 n. 1 (10th Cir.1987). Question: Did the court's ruling on attorneys' fees favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_circuit

L

What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES AND TECHNICIANS, AFL-CIO, LOCAL 31 and National. Association of Broadcast Employees and Technicians, AFL-CIO, Respondents. No. 78-2045. United States Court of Appeals, District of Columbia Circuit. Argued Nov. 15, 1979. Decided July 23, 1980. Jesse T. Etelson, Atty., N.L.R.B., a member of the Bar of the Supreme Court of New York, pro hac vice, by special leave of Court, Washington, D.C., John S. Irving, Gen. Counsel and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C., were on brief, for petitioner. Robert Kruger, Roger H. Madon, New York City, was on brief, for respondents. Before McGOWAN and MacKINNON, Circuit Judges, and PRATT, United States District Judge for the District of Columbia. Sitting by designation pursuant to 28 U.S.C. § 292(a). Opinion for the Court filed by Circuit Judge MacKINNON.' MacKINNON, Circuit Judge. The National Labor Relations Board [NLRB or Board] found that various picketing and handbilling activities of the Local 81, National Association of Broadcast Employees and Technicians, AFL-CIO [Local 31], and the National Association of Broadcast Employees and Technicians, AFL-CIO [International] constituted unfair labor practices under § 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(i) and (ii)(B) (1976). The Board issued a cease and desist order, and required designated affirmative action. The case is before this Court upon the application of the NLRB pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1976) for enforcement of its order. I. Local 31 is the bargaining representative of ABC’s Washington News Bureau’s technicians, who operate electronic equipment in connection with ABC’s remote news “pickups” in the Washington area for radio and television broadcasts. The International is Local 31’s parent body. Recent bargaining negotiations were conducted on a nationwide basis by a negotiating committee consisting of a representative from Local 31 and from each of four other affiliated locals that similarly represent technicians at ABC’s facilities in other United States’ cities. Edward Lynch, the President of the International served as the coordinator and chief spokesman during the negotiations. The Committee called for a strike and economic action against ABC’s news coverage in Washington, D.C. on May 16,1977. It was arranged that the International would be the go-between for ABC and Local 31 for information as to where and when ABC would be covering news events for purposes of picketing. The International was also to outline the rules applicable to picketing at the various locations. ABC adopted a plan whereby it would set up reserved gates at the news locations for ABC employees usage only. Neutral individuals were to enter other posted entrances at the locations. ABC would also inform the union of these gates. Signs at the reserved gate read; This entrance is reserved for the employees of the American Broadcasting Company, its lessors-, subcontractors and vendors. All such persons working for, or doing business with the American Broadcasting Company must enter through this entrance only. This entrance is not to be used by anyone other than the above named persons. The signs at the neutral gates read: This entrance is not to be used by the employees of the American Broadcasting Company, its lessors, subcontractors and vendors. All such persons working for, or doing business with the American Broadcasting Company must enter only through the entrance specifically reserved for their use. President Lynch notified ABC that it was the International’s position that the reserved gate procedure should not apply to news coverage at locations other than at news stations. This case concerns picketing and handbill-ing away from ABC’s news stations at three separate events and locations: 1) coverage of Vice President Mondale’s speech at the Hyatt Regency Hotel in Washington; 2) coverage of Secretary of Transportation Brock Adams’ speech at the Mayflower Hotel in Washington; and 3) a speech made by Senator Edward Kennedy at the International Inn in Washington that ABC did not cover. The activity at each hotel will be discussed in detail. A. Hyatt Regency Hotel Activities The day before Vice President Mondale was to speak at the Hyatt Regency, Kevin Delany, ABC’s Assistant Washington Bureau Chief and Director of Television News informed the hotel’s banquet manager of the strike and discussed with her the separate entrance plan. The Hyatt designated a side entrance that led into the ballroom where the speech would be held as a reserved gate for ABC employees. Delany then informed the International of the arrangements, concluding that ABC expected any picketing would be confined to the ABC reserved gate. International President Lynch passed this information on to Local 31. The following morning Delany and Hyatt’s assistant banquet manager posted the entrance reserved for ABC. They also designated by posting as neutral entrances, barred to ABC personnel, the main hotel entrance on New Jersey Avenue and a nearby VIP entrance. There is no evidence that ABC personnel used any door but the reserved gate. However, neither ABC nor the union policed the entrances. ABC striking employees commenced picketing their reserved gate at approximately 11:00 or 11:15 that same morning. One union member passed out handbills in front of the neutral main entrance to the Hyatt to anyone entering the hotel. The handbill had been prepared by President Lynch of the International and given to Local 31 for distribution. Lynch’s reasoning was that the handbills would counteract the fact that the reserved gate for ABC was away from the public eye. Neither the picket signs nor the handbills specifically addressed the speech being covered by ABC, and numerous functions were being held in the hotel. Because of the union activity at the Hyatt, none of the CBS employees also present to cover the Mondale speech would enter the hotel, causing CBS to lose television and radio coverage of the event. Pursuant to a phone call from the hotel’s banquet manager, ABC’s Delany returned to the site and observed the handbilling at the main entrance. He entered the neutral main entrance to call his ABC superior, whereupon the union commenced picketing the main entrances in front of the hotel. B. Mayflower Hotel Activities The circumstances of the union activity at this hotel were similar to those at the Hyatt. ABC decided to give television coverage to the speech Secretary of Transportation Brock Adams was scheduled to deliver at the Mayflower on June 16,1977. Kevin Delany arranged with the hotel’s Director of Security for the establishment of a reserved gate for exclusive use by ABC personnel. The Director of Security suggested a side entrance to the hotel that was also used as the entrance to the apartments in the hotel. They considered this entrance to be the least obstructive and obtrusive to Mayflower’s operations. Delany again informed International’s President Lynch, who explained the arrangements to Local 31. On the day of the speech, Delany and the Mayflower Director of Security posted the signs specifying the reserved gate, and then posted the neutral entrances at the main door and two other entrances. A number of entrances to the hotel were left unmarked. Later that morning, ABC’s Delany observed union members picketing in front of the hotel’s main entrance, and in front of one of the unposted entrances, in addition to the ABC reserved gate. The signs were the same as those used in the Hyatt picketing. The evidence before the Administrative Law Judge at the Board hearing showed that the ABC employees used the reserved gate, along with other individuals. Once again, neither ABC nor the union policed the gates. One ABC employee testified that prior to the day presently in question he had used the main entrance on work assignments, and had never used the entrance presently posted as the reserved gate. c. International Inn Activities ABC decided not to cover Senator Edward Kennedy’s speech scheduled for June 16, 1977, so no notice about the event was sent to the International. Nonetheless, Local 31 picketed the hotel, which resulted in a CBS employee delaying his entrance into the hotel. II The facts as described above are undisputed, and were adopted by the NLRB from the Administrative Law Judge’s opinion. The Board noted that § 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act are designed to cover secondary boycott activities. It applied the four tests of Sailors’ Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547 (1950) and the reserved gate doctrine from Local 761, International Union of Electrical Workers (General Electric Co.) v. NLRB, 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961) to conclude that the object of the Hyatt Regency Hotel handbilling was to reach employers and persons other than ABC in order to force them not to enter or patronize the hotel. The activity was merely an extension and integral part of the picketing at the ABC reserved gate. Recipients of the handbills and observers of the picketing were unable to determine what event was being boycotted. The Board did not consider the union’s disclaimer at the bottom of the handbill to be a serious plea by the union to persuade the public or other companies not to get involved. Since the handbilling was an extension of the picketing to the main entrance, and since it was intended thereby to bring economic pressure on the Hyatt Re-geney Hotel, CBS and others, to enmesh these neutrals in the union’s dispute with ABC, it constituted secondary activity in violation of the Act. The Board also held that the union’s activity was not protected consumer publicity. Finally, it held that the situs of the activity was not “primary”, which could have afforded the union more liberal picketing. Even though news broadcasting by its very nature involves roving assignments, the Board held that secondary activity at a common situs was involved and the union’s action was to be tested by the criteria enunciated in Moore Dry Dock, supra. The Board applied its reasoning regarding the union’s attempt to enmesh neutrals in the union’s dispute with ABC with equal force to the picketing of neutral or unpost-ed gates at the Mayflower Hotel and found unpersuasive the union’s arguments that the gates were not proper “reserved gates” because some neutrals may have used them, or because they may never have been used before by ABC. No evidence was shown that ABC personnel used any entrance but the reserved gates on the days of the speeches. Thus the picketing, like the handbilling, constituted a violation of § 8(b)(4)(i) and (ii)(B). Finally, the Board found, since ABC was not even covering the speech in question, that the union’s picketing at the International Inn was a blatant violation of § 8(b)(4)(i) and (ii)(B). For all of the union activities described above, the Board held that both Local 31 and the International were liable in that their conduct was closely intertwined. III. The Supreme Court and this Court have emphasized that it is a primary function and responsibility of the Board “to resolve the conflicting interests that Congress has recognized in its labor legislation.” NLRB v. Insurance Agents’ International Union, 361 U.S. 477, 499, 80 S.Ct. 419, 432, 4 L.Ed.2d 454 (1960); Retail Store Employees Union, Local 1001 v. NLRB, 627 F.2d 1133 at 1147 (D.C.Cir. 1979) (en banc) rev’d on other grounds, NLRB v. Retail Store Employees Union, - U.S. -, 100 S.Ct. 2372, 65 L.Ed.2d 377 (1980). For this reason, courts are to give deference to the Board’s statutory construction. NLRB v. Local 103, International Association of Iron Workers, 434 U.S. 335, 350, 98 S.Ct. 651, 660, 54 L.Ed.2d 586 (1978). With these principles in mind, we affirm the Board’s decision in this case. IV. The first issue to be determined is whether the hotels were a primary or secondary situs for ABC employees on the day of the speeches. Generally speaking, union picketing occurring at the primary employer’s premises and seeking only the disruption of its normal operation is considered primary and thus protected activity, whereas picketing extending beyond the premises of the primary employer to those of a neutral employer and designed to disrupt the latter’s operations is secondary and prohibited. Compare NLRB v. International Rice Milling Co., 341 U.S. 665, 671, 71 S.Ct. 961, 964, 95 L.Ed. 1277 (1951), with NLRB v. United Brotherhood of Carpenters, 184 F.2d 60 (10th Cir. 1950), cert. denied, 341 U.S. 947, 71 S.Ct. 1011, 95 L.Ed. 1371. Initial logic would lead to the conclusion that the hotels were not the primary situs for ABC. However, the union argues that traditional notions of situs should not apply to the broadcasting industry. Since news coverage is one of ABC’s main businesses, and since its employees who cover news events must travel to gather the news, the company does have a number of temporary situses that are ambulatory. In many instances, contrary to most industrial or construction site settings, there are no such things as entrances or gates to a situs for news coverage, i. e. fires, streetside crimes, parades, demonstrations. The coverage is often a one time event of short duration. Thus, the union maintains that since ABC’s primary business is conducted at these sites, each location should be considered the primary situs of the employer for union activity. However, while news gathering is an important segment of television and radio, so is entertainment and education and advertising. We conclude that broadcasting should not be treated differently under this section of the Act. Once the news reporters and technicians are away from the news station, they are away from their employer’s primary situs. Nothing in the legislative history indicates broadcasters should warrant special treatment. And, as noted in the Board’s opinion in this case, the very broad language used in describing unfair labor practices in § 8(b)(4)(i) and (ii)(B) indicates that no industry exclusion was contemplated. Thus, we hold that the hotels in this instance were a secondary situs for union activity. The union relies heavily on Local 25, National Association of Broadcast Employees (Taft Broadcasting Co.), 194 N.L.R.B. 162 (1971) to support its argument that the news locations are primary situses. In that case, the Board held that live coverage of a hockey game from a broadcasting booth within a stadium was primary activity for the television personnel working in the booth. Once the “microphones, and the transmission lines were activated during the hockey games”, id. at 165, the booth became an extension of the television station. However, live coverage involves a much closer connection with a television station than conventional filming of news events. There is nothing in this record to indicate that ABC was furnishing instantaneous live coverage as in Taft Broadcasting. The Court reserves the question of the correctness of the Taft Broadcasting for a case where facts similar to it are directly before us. Finally, we acknowledge that even had we concluded that the news locations were primary situses, the activity could have been transformed into prohibited secondary activity because of the union’s noncompliance with the reserved gates. Courts recognize the establishment of reserved gates either on the primary employer’s property, or on common situses. Once a reserved gate is set up, the Court then needs to evaluate the facts under the Moore Dry Dock guidelines, as we do in V. V. The second issue before this Court is whether the union picketing and handbill-ing was lawful primary activity, .or illegal secondary activity. In Local 761, International Union of Electrical Workers (General Electric Co.) v. NLRB, 366 U.S. 667, 673, 81 S.Ct. 1285, 1289, 6 L.Ed.2d 592 (1961), the Supreme Court remarked that “[important as is the distinction between legitimate ‘primary activity’ and banned ‘secondary activity’, it does not present a glaringly bright line.” The key factor is whether the union activity is aimed at the primary employer or whether it is also aimed at pressuring the secondary employer. We focus, therefore, upon the union's objective. NLRB v. International Rice Milling Co., 341 U.S. 665, 672, 71 S.Ct. 961, 964, 95 L.Ed. 1277 (1951); International Brotherhood of Electrical Workers, Local 480 v. NLRB, 413 F.2d 1085, 1089 (D.C.Cir.1969). To aid in this determination, the Board developed guidelines in Moore Dry Dock. Compliance with the guidelines raises a presumption of valid primary activity. General Electric Co., 366 U.S. at 677, 81 S.Ct. at 1291. However, extrinsic evidence may also be used to establish that picketing has a secondary objective. Id. Ultimately, the Court must look to the totality of the circumstances to determine whether the activity was lawful. Helgesen, Inc. v. International Assoc. of Bridge, Structurai & Ornamental Ironworkers, Local 498, 548 F.2d 175, 183 (7th Cir. 1977). In Moore Dry Dock the Board attempted to protect neutral employers from the economic effects of boycotting activities by employees of other employers located at a common worksite. The guidelines aid in determining whether the union’s object was primary and lawful, or secondary and calculated to enmesh neutral employers and employees in the union’s dispute with the primary employer. The guidelines require that 1) the picketing be strictly limited to times when the situs of the dispute is located on the secondary employer’s premises, 2) at the time of the picketing the primary employer is engaged in his normal business at the situs, 3) the picketing is limited to places reasonably close to the location of the situs, and 4) the picketing disclose clearly that the dispute is with the primary employer. 92 N.L.R.B. at 549. Under the first test, it is undisputed that the picketing at the Hyatt Regency Hotel and the Mayflower Hotel was limited to times when the situs of the dispute was located on the secondary employers’ premises. The ABC technicians only picketed and passed out handbills the morning of the scheduled speeches. It is also undisputed that the primary employer was engaged in his normal business of covering news events at the time of the picketing and handbill-ing. Concerning the picketing at the International Inn, we fully agree with the Board that the union activity was a violation of § 8(b)(4Xi) and (ii)(B), since the primary employer had no intention of covering the Kennedy speech, and was in fact not present. The Union does not contest this finding. Compliance with the third criterion presents the problem. Under Moore Dry Dock, the picketing must be limited to places reasonably close to the location of the situs. The union had ample opportunity to picket at the reserved gate. The Supreme Court and this Court have upheld the use of reserved gates under most circumstances. Local 761, International Union of Electrical Workers (General Electric Co.) v. NLRB, 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961); United Ass’n of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry v. NLRB, 416 F.2d 1120, 1125 (D.C.Cir.1969). At the Hyatt, the picketing extended beyond the ABC reserved gate in the form of the hand-billing activity in front of the main entrance. The handbills specifically addressed the picketing in progress at the reserved gate, and offered the assistance of the union members to show the recipient the picketing. The handbills appealed to the recipient not to enter the hotel, without ever addressing the event being boycotted. We affirm the Board’s finding that the hand-billing was an extension of the picketing which was lawful at the reserved gate. However, since the handbilling was conducted away from the reserved gate and thus away from the situs that was lawful for primary activity, the union failed to comply with the third criteria of Moore Dry Dock. By its picketing at the Mayflower Hotel it also failed to comply. Very specific reserved gates had been established, but the union instead chose to picket at neutral and unposted entrances. The union argues that the reserved gates were improper because they were at a distance from thé main entrance and were otherwise tainted. However, there is no basis for such claims. Since the objective of the picketing is to reach the ABC employer and employees it is irrelevant that the reserved gates were located away from the main entrance of the hotel. The fact that the employees of ABC may never have used these gates before is also irrelevant, since they had ample warning of the location of the gates that they were to use, and there is no evidence of employee confusion. Again, because there is no evidence of misuse of the entrances or confusion, and because of the ample warning, it is irrelevant that some of the entrances at the Mayflower were unmarked. Further, if neutral individuals had entered the reserved gate, as the union claims happened, this would not taint the reserved gate. Their use of such entrance would in fact help the union, which was purportedly trying to publicize the dispute. Finally, the fact that the gates were not policed is also irrelevant in the absence of evidence to show that ABC employees entered the neutral gates. Therefore, the establishment and use of the reserved gates in this case was proper and untainted. The last test of Moore Dry Dock, whether the picketing discloses clearly that the dispute is with the primary employer, was also not met by the union in its activities at either the Hyatt or the Mayflower. Although the signs and handbills specified that the strike was against ABC, they urged individuals not to enter the hotel in its entirety. In addition, the union did not describe the event being covered by ABC, or where it was being held in the hotel. This failure to designate the event, and calling instead for a blanket boycott of the hotel, also supports the conclusion that under the totality of the circumstances test the union had a secondary objective. Indeed, they were trying to “induce or encourage” individuals other than ABC employees not to enter the hotels. Therefore we conclude that the designation and use of the reserved gates were proper in the instant case. ABC management did all it was required to do, with the assistance of the hotel management, to properly post the gates, and to inform the union of times and places. Yet, the union disregarded these arrangements, and purposefully picketed and handbilled the entire hotel in order to influence neutral individuals not to enter the hotel. These actions constitute unlawful secondary boycotts in clear violation of § 8(b)(4)(i) and (ii)(B). VI. The union also maintains that its activity was lawful because it was advising the public concerning a product of an employer with whom the union had a primary dispute. The NLRA exempts such publicity, other than picketing, from the secondary boycott prohibitions under 29 U.S.C. § 158(b)(4). Thus, the union attempts to persuade this Court that the handbilling activity at the Hyatt Regency Hotel constituted lawful consumer publicity. Consumer activity was evaluated and upheld by the Supreme Court in NLRB v. Fruit & Vegetable Packers Local 700 (Tree Fruits), 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964) and recently by this Court in Retail Store Employees Union, Local 1001 v. NLRB, 627 F.2d 1133 (1979) (en banc), rev’d on other grounds, NLRB v. Retail Store Employees Union, - U.S. -, 100 S.Ct. 2372, 65 L.Ed.2d 377 (1980). Although it is conceivable that ABC’s work could be considered a product capable of being the subject of consumer picketing, see Great Western Broadcasting Corp. v. NLRB, 356 F.2d 434 (9th Cir. 1966), Tree Fruits and Retail Store Employees preclude classification of the handbilling as such in this case. Contrary to the activity in Tree Fruits, the handbilling here was not meant to persuade customers of the hotel not to “buy”, “use” or “go to” the struck “product”. Instead, it appealed to all individuals not to enter the hotels. When consumer picketing is employed only to persuade customers not to buy the struck product, the union’s appeal is closely confined to the primary dispute. The site of the appeal is expanded to include the premises of the secondary employer, but if the appeal succeeds, the secondary employer’s purchases from the struck firms are decreased only because the public has diminished its purchases of the struck product. On the other hand, when consumer picketing is employed to persuade customers not to trade at all with the secondary employer, the latter stops buying the struck product, not because of a falling demand, but in response to pressure designed to inflict injury on his business generally. In such case, the union does more than merely follow the struck product; it creates a separate dispute with the secondary employer. 377 U.S. at 72, 84 S.Ct. at 1071. We conclude that the union’s dispute with ABC overflowed to the point of creating a separate dispute with the hotels. VII. The final issue is whether the International union should be held responsible for the prohibited secondary activities of Local 31. We hold that it should. It was involved in contract negotiations between the local and ABC, the local union is financially dependent on the International, the International administers a strike fund in which the local participates, the International informed the local of the picketing rules, its President informed ABC that it objected to the use of reserved gates in these instances, it drafted the handbills that specified that both the International and the local were on strike with ABC, its officials observed the picketing, and most importantly, it acted as a go-between with ABC and the local as to locations and times and gates at the hotels. This is simply too much involvement for the International now to say that it did not participate and should be shielded from responsibility. For these reasons, we grant the Board’s application to enforce its order against Local 31 and the International. Judgment accordingly. . The applicable statutes provide: (b) It shall be an unfair labor practice for a labor organization or its agents- . (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is- * * * * * * (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing; * ⅜⅞ ⅝! * * * Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution; . The Board’s decision and order are reported at National Association of Broadcast Employees and Technicians, AFL-CIO, Local 31, 237 N.L.R.B. No. 222 (1978). . Delany entered the main entrance of the hotel after observing the allegedly illegal handbilling in front of the hotel. All parties agree that this action tainted the reserved gate process. However, the challenge in this action addresses the activities of the union prior to Delany’s entrance at the neutral gate. . The two kinds of picket signs read: a) NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES & TECHNICIANS ON STRIKE against ABC NABET, Local 31, AFL-CIO b) NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES & TECHNICIANS ABC UNFAIR to EMPLOYEES NABET, Local 31, AFL-CIO .These handbills read: PLEASE DO NOT ENTER ! ! THIS EVENT IS APPEARING ON UNFAIR ABC TELEVISION NABET AFL-CIO is on STRIKE against ABC. NABET Local 31 Pickets have been Banished to the back alley, or, around the corner; out of sight. The person distributing this handbill can show you where NABET AFL-CIO is PICKETING ABC’s broadcast of THIS EVENT. PLEASE DO NOT ENTER !! This handbill is addressed exclusively to the individual members of the public and is not an appeal to employees to refuse to perform any service nor is it an appeal to other Companies to refuse to perform any service. . The Supreme Court summarized these criteria as follows: (1) that the picketing be limited to times when the situs of dispute was located on the secondary premises, (2) that the primary employer be engaged in his normal business at the situs, (3) that the picketing take place reasonably close to the situs, and (4) that the picketing clearly disclose that the dispute was only with the primary employer. Local 761, International Union of Electrical Workers v. NLRB, 366 U.S. 667, 677, 81 S.Ct. 1285, 1291, 6 L.Ed.2d 592 (1961). If these four criteria are met, the union activity is held to be presumptively valid primary activity. . See footnote 5 supra. . See Section VI infra. . Such activity is protected under the proviso of § 8(b)(4). Meter v. General Drivers Local 120, 329 F.Supp. 1348, 1352 (D.Minn.1971). . The presence of reserved gates in the instant case also serves as a reason to distinguish this case from Taft Broadcasting, where there were none. The Board in the instant case used this distinction as a means of getting around Taft Broadcasting. It stated that “[wjhile there are some favorable statements made by the Trial Examiner in his decision adopted by the Board without comment, that case did not involve a ‘reserved gate’ and the picketing actually complied with Moore Dry Dock standards except for a short period of time.” 237 N.L.R.B. No. 222 at 15 n.29. . In the General Electric case, the Court approved the use of reserved gates as long as the neutral individuals using the reserved gates are not entering to perform tasks related to the normal operations of the struck employer. 366 U.S. at 680-81, 81 S.Ct. at 1293. Since the task of those neutral individuals entering the hotel was unconnected with the normal operations of ABC, this caveat is inapplicable. Various cases hold that if the neutral employees using the neutral reserved gate are making deliveries needed in the day-to-day operations of the primary employer, then picketing of these gates is considered primary activity. United Steelworkers v. NLRB (Carrier Corp.), 376 U.S. 492, 84 S.Ct. 899, 11 L.Ed.2d 863 (1964); Linbeck Const. Corp. v. NLRB, 550 F.2d 311 (5th Cir. 1977). . See note 1, supra. . This Court restated the Tree Fruits test: The test of “threaten[ingj, coercfing], or restrain [ing]” which we thus distill from Tree Fruits is whether the challenged picketing confines its appeal to the struck product in order to reduce the primary employer’s market therefore, or whether the picketing projects its force beyond these boundaries. Retail Store Employees Union, Local 1001 v. NLRB, 627 F.2d 1133 at 1144-1145 (1979) (en banc), rev’d on other grounds, - U.S. -, 100 S.Ct. 2372, 65 L.Ed.2d 377 (1980). Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:

songer_injunct

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 the validity of an injunction or the denial of an injunction or a stay of injunction 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". DE CASTRO v. BOARD OF COM’RS OF SAN JUAN. No. 3796. Circuit Court of Appeals, First Circuit. June 14, 1943. Hugh R. Francis and Gabriel de la Piaba, both of San Juan, Puerto Rico, for appellant. F. Fernandez Cuyar and H. Gonzales Blanes, both of San Juan, Puerto Rico, for appellee. Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges. MAGRUDER, Circuit Judge. On January 4, 1937, the Board of Commissioners of San Juan (the newly elected members of which took office on that day) appointed Carlos M. de Castro, appellant herein, as city manager of the Capital of Puerto Rico. Pursuant to § 22 of Act No. 99, Laws of Puerto Rico (1931) pp. 638-640, the said Board of Commissioners, after hearing upon charges, removed de Castro from office on April 5, 1939. The District Court of San Juan upheld the Board. On appeal the Supreme Court of Puerto Rico reversed the judgment of the district court and directed appellant’s reinstatement. The Supreme Court’s judgment which was rendered June 28, 1940, read as follows: “For the reasons set forth in the foregoing opinion, the judgment appealed from, which was rendered by the District Court of San Juan on August 21, 1939, is hereby reversed, and in its stead a new one rendered, annulling Ordinances No. 370, of January 5, 1939, and No. 373, of April 5, 1939, which decreed the suspension .and removal of the city manager, and in consequence thereof, ordering the reinstatement of the petitioner Carlos M. de Castro in his office of city manager, said reinstatement to date hack from January 5, 1939, when the petitioner was suspended from office and pay.” An appeal was duly allowed, and on July 30, 1940, the court below approved a supersedeas bond. This court affirmed the judgment of the Supreme Court of Puerto Rico on January 10, 1941. Board of Commissioners of San Juan v. De Castro, 1 Cir., 116 F.2d 806. Certiorari was denied on October 13. 1941, 314 U.S. 614, 62 S.Ct. 61, 86 L.Ed. 495. Shortly after our mandate went down to the Supreme Court of Puerto Rico the Board, on October 27, 1941, filed in that court a motion to stay the execution of its judgment of June 28, 1940 (which we had affirmed) insofar as it ordered the reinstatement of appellant, on the ground that meanwhile appellant’s term of office as city manager had expired. Appellant filed an opposition to this motion, and after a hearing thereon, the Supreme Court of Puerto Rico on January 14, 1942, entered its judgment, from which the present appeal is taken reading as follows: “For the reasons set forth in the foregoing opinion, the motion filed by the Board of Commissioners of San Juan on October 27, 1941, is granted, and in consequence thereof the execution of the judgment of this court of June 28, 1940, is stayed insofar as it decrees the reinstatement of petitioner Dr. Carlos M. de Castro in the office of city manager of the capital because the term for which he was appointed expired in February, 1941.” If the court below was correct in its conclusion that appellant’s term of office expired at some time subsequent to its judgment of June 28, 1940, ordering appellant’s reinstatement, we think it is manifest that that court had jurisdiction to stay the execution of its judgment insofar as it decreed reinstatement, despite the fact that the said judgment had been affirmed by this court. See Puerto Rican Code of Civil Procedure, § 7, subdivision 8. Appellant urges that the issue as to his tenure of office had become res judicata in his favor, because in his brief before the Supreme Court of Puerto Rico at the earlier hearing he had advanced the contention that the city manager holds office during good behavior. But that court in its opinion of June 28, 1940, did not go into the question of the tenure of the office at all, and did not need to, because at that time appellant’s four-year term, which the Board claims was the extent of his tenure, had not expired. Certainly, when we affirmed on the previous appeal we had no idea that we were passing on the tenure of the office. We affirmed a judgment holding that appellant had been improperly removed and ordering his reinstatement. How long appellant should retain his office after reinstatement was quite another question. When the Supreme Court of Puerto Rico, upon remand from us, regained jurisdiction over its judgment of June 28, 1940, a new situation was then presented. It was then inappropriate, if appellant’s term of office had meanwhile expired, for the Supreme Court of Puerto Rico to carry into execution its decree of reinstatement. This brings us to the merits, the question whether under the applicable statute the city manager holds office for a life tenure (during good behavior), or as contended by the Board, for a definite term of four years coincident with the four-year terms of the members of the Board which appointed him. Act No. 99 of the insular legislature approved May 15, 1931, established a special government for the body politic to be known as the “Capital of Puerto Rico”. Relevant portions of this Act, Laws P. R. (1931) p. 626, and of amendatory Act No. 10, Laws P. R. (1937) p. 131, are copied in the footnote. The legislative powers are conferred upon a governmental body known as the “Board of Commissioners of San Juan”, As originally constituted by § 9 of the Act, this was a continuing body, composed of five commissioners, appointed by the Governor and confirmed by the Senate, with staggered terms, the term of one commissioner expiring each year. Section 50 of the Act, however, provided that at the general elections in 1936 and every four years thereafter the commissioners should be elected by popular vote, the commissioners previously appointed by the Governor under § 9 to hold office until the first Monday in January, 1937. Act No. 10, approved March 24, 1937, increased the membership of the Board by providing that the Governor should forthwith appoint, with the advice and counsel of the Senate, four additional commissioners to serve with the five commissioners who had been elected in 1936. For the future it was provided that the nine members of the Board should take office on the second Monday in February following each general election, which seems to imply that the four appointed commissioners are to hold office for four years, as in the case of those elected by popular vote. Section 10 creates the offices of city manager, treasurer, director of public works, director of health and charities, school director, auditor and secretary of the Capital. Section 21 provides that the city manager shall be the chief executive of the Capital; “he shall be appointed by the Board of Commissioners created by this Act and shall hold office during good conduct.” [Italics ours.] Procedure for removal of the city manager by the Board “for just cause” after hearing is set forth in § 22. Section 26 provides that the city manager shall appoint the various departmental heads previously mentioned, except the auditor. No specific provision is made as to the tenure of these officers so appointed by the city manager, but § 27 provides that they may be removed by the city manager, for just cause after hearing, the removal provisions being the same as those empowering the Board to remove the city manager. Section 36 provides that the auditor shall be appointed by the Board of Commissioners. No specific provision is made as to the auditor’s term of office; but he also may be removed by the Board for just cause after hearing. It is to be observed that the legislature has dealt in various ways with the tenure of officers and employees of the city government. The commissioners have fixed terms of years. Of the two officers to be appointed by the Board, the city manager “shall hold office during good conduct”; the auditor’s tenure is not stated. Nor is any tenure stated for the other offices to which the city manager has the appointing power. “Employees” are appointed for the term of the appointing officer. Act No. 99 supersedes, so far as concerns the capital city, the Municipal Law of April 28, 1928, Laws, P.R.(1928) No. 53, p. 334, under whch the chief executive was a mayor, elected for a fixed term, though subject to impeachment by the municipal assembly. Appellant contends that the legislature, in providing that the city manager should hold office “during good conduct,” evidenced a clear and unambiguous purpose to introduce experimentally in the city of San Juan a new type of city government, under which the chief executive or city manager would hold office during good behavior “without being tied to the whims and uncertainties of partisan politics.” The court below, however, reached the conclusion that “the tenure of office of the city manager of the capital is that of four years, provided that during the same he observe good behavior.” It is difficult for us to see how § 21 could mean anything different in 1937, and thereafter, from what it meant in 1931, when the new form of government was instituted. There is no basis for saying that the first city manager, appointed in 1931, held a four year term, for at that time the tenure of office of the commissioners themselves was not four years, and their terms were staggered so that only one of the five commissioners went out of office each year. But passing that difficulty, suppose it had been provided from the outset that the whole body of commissioners should be elected by popular vote every four years, as § 50 provided for 1936 and thereafter. It might then be implied that the auditor, whose tenure is not specifically stated, holds office during a four year term, coinciding with that of the commissioners. The only other alternative would be (1) that the auditor holds office at the pleasure of the Board, which would seem to be contrary to the implication of the further provision that the auditor is removable by the Board for just cause, after notice and hearing, or (2) that the auditor holds office for life, subject to removal for cause. But a life tenure for public officers is the exceptional thing and will not be read into the statute by implication. Shurtleff v. United States, 1903, 189 U.S. 311, 316, 23 S.Ct. 535, 47 L.Ed. 828. Notwithstanding the provision that the city manager shall hold office “during good conduct,” the court below has read the statute as meaning that the city manager has the same limited tenure as that of the auditor, as to whose tenure the legislature is silent. Under this interpretation the phrase “during good conduct” in § 21 seems to be rendered meaningless and of no significance. The tenure of federal judges under Article III, § 1 of the Constitution is described as “during good Behavior,” which means for life, provided they behave themselves. Cf. Matter of Hennen, 1839, 13 Pet. 230, 258, 10 L.Ed. 138. Nobody ever supposed' that “during good behavior” meant that the judge would hold office during the term of the president who appointed him, provided that he observed good behavior during that time. In Smith v. Bryan, 1902, 100 Va. 199, 203, 40 S.E. 652, 653, cited by the court below in another connection, it is stated: “An official tenure ‘during good behavior’ is for life, unless sooner determined for cause. And removal for cause implies a right to be heard, and a trial in one form of procedure or another.” The steps in the reasoning of the court below are as follows: (1) Life tenure for public officers is the exception; hence should not be read into the statute by implication but only if the intention of the legislature to that effect appears to be so evident as to permit of no doubt. This is an accepted canon of construction, for which the court properly cites Shurtleff v. United States, 1903, 189 U.S. 311, 23 S.Ct. 535, 47 L.Ed. 828. That case involved the tenure of the office of general appraiser of merchandise. It was provided in the act creating the office that the appraisers should be appointed by the President with the advice and consent of the Senate and might be removed from office at any time by the President for inefficiency, neglect of duty or malfeasance in office. Beyond that the statute was silent as to the tenure of the office. The court held that Congress had not clearly enough indicated an intention to make the tenure one for life subject only to removal for cause; and therefore that the act should be construed as leaving unrestricted the President’s implied power of removal without cause. But the significant thing is that the act there involved did not provide that appraisers should hold office “during good behavior”. The court pointed out (page 316 of 189 U.S., page 536 of 23 S.Ct, 47 L.Ed. 828) that “The tenure of the judicial officers of the United States is provided for by the Constitution; but, with that exception, no civil officer has ever held office by a life tenure since the foundation of the government”. How is the life tenure of judicial officers provided for in the Constitution except by the phrase that they shall hold office “during good Behavior”? The rule of interpretation laid down in the Shurtleff case, where the act in question did not use the phrase “during good Behavior”, should not be used to create an ambiguity in § 21 of the act now before us, where the legislature describes the tenure simply as “during good conduct”. (2) The court points to the “anomaly” which would result if the city manager were held to have a life tenure, from the fact that the treasurer, the director of public works, etc., might under § 26 be appointed “for a limited term to be fixed by the city manager,” while an employee attached to the office of the city manager, “for example, the messenger of his office, by the mere fact of being appointed by the city manager would hold his employment for life unless removed for just cause.” Along the same line, the court states that an uncalled for discrimination would be created between the employees appointed by the other officers and the employees appointed by the city manager, “as the former would hold their employments during the tenure of the appointing officer while the term of office of the employees appointed by the city manager would be for life.” But these “anomalies,” if such they be, are relevant only if it is assumed that there is doubt or ambiguity as to the meaning of § 21. (3) The court invokes the rule of construction that where the legal provision describing a term is uncertain or doubtful, an interpretation will be adopted which limits the term to the shortest time — in this 'case, “that of four years, which is the one of the majority, at least, of the Board of Commissioners which appointed” the city manager. This, again, assumes some ambiguity in § 21. (4) The court refers to the rule that in cases of doubt “the practical construction given to a statute by public officials and acted upon by the people” will be regarded as decisive. In this connection the court took judicial notice of the facts that at the general elections held in 1936 and 1940 the various political parties had indicated to the electorate in advance their respective choices for city manager, and that when the newly elected commissioners took office the board proceeded to appoint as city manager the candidate of the successful political party. Appellant objects that the court below ought not to have taken judicial' notice of these facts; that he had no opportunity to put in evidence other facts or explanations which would rob the judicially noticed facts of their significance, and thereby he was denied due process of law. But it is clear that an appellate court may take judicial notice of public acts and facts of common knowledge bearing on a doubtful issue of statutory construction. If the court below took judicial notice of some fact that wasn’t so, appellant, on appeal to us, by reference to official records or in some other appropriate way, could bring the true situation to our notice, and we in our turn, taking judicial notice of the relevant facts, could review any error in statutory interpretation committed by the court below as the result of a misapprehension of the facts judicially noticed by it. Appellant, however, has not undertaken to enlighten us on these matters. Indeed, appellant does not deny the fact, as stated by the court below, that appellant, himself was the preannounced choice for city manager of the winning party at the general elections of 1936. And there seems to be no doubt of the further fact, stated by the court below, that when the newly elected commissioners came into office on January 4, 1937, they proceeded at once to appoint appellant as city manager. Appellant is no doubt embarrassed by the argument ad hominem, namely, that appellant himself obtained the office of city manager upon an assertion of an interpretation of § 21 inconsistent with that which he now maintains. But we know of no principle of “estoppel” which would preclude appellant from taking this inconsistent position in the present proceedings. The interpretation put upon the Act by the local political parties and by the successive boards of commissioners would be a relevant consideration in determining the construction of the Act, if the Act itself is deemed to be doubtful or ambiguous in meaning. If we were free to take a wholly independent view of the point at issue we would be inclined to conclude that the meaning of § 21 is clear, and that the court below went beyond the permissible limits of interpretation in reading the clause “and shall hold office during good' conduct” as meaning that “the tenure of office of the city manager of the capital is that of four years, provided that during the same he observe good behavior.” But in Sancho Bonet v. Texas Co., 1940, 308 U.S. 463, 471, 60 S.Ct. 349, 353, 84 L.Ed. 401, the court said: “To reverse a judgment of a Puerto Rican tribunal on such a local matter as the interpretation of an act of the local legislature, it would not be sufficient if we or the Circuit Court of Appeals merely disagreed with that interpretation. Nor would it be enough that the Puerto Rican tribunal chose what might seem, on appeal, to be the less reasonable of two possible interpretations. And such judgment of reversal would not be sustained here even though we felt that of several possible interpretations that of the Circuit Court of Appeals was the most reasonable one. For to justify reversal in such cases, the error must be clear or manifest; the interpretation must be inescapably wrong; the decision must be patently erroneous.” We are not prepared to say that the judgment now under review is “inescapably wrong.” For many years this court has not had much luck in reversing the Supreme Court of Puerto Rico on questions of local law. As we pointed out in de La Torre v. National City Bank, 1940, 110 F.2d 976, 983, “though Congress has given us appellate jurisdiction over the Supreme Court of Puerto Rico in matters of local law where the value in controversy exceeds $5,000, the exercise of this jurisdiction is so restricted by the canon prescribed by the Supreme Court of the United States that appeals in such cases are likely to be futile and merely to cause needless delay and expense.” It may be pointed out that our function in this class of cases, technically, at least, is different from that of the Supreme Court of the United States upon review of decisions of state courts. There, the Supreme Court has no appellate jurisdiction in matters of state law, and hence it accepts as conclusive the decisions of the state tribunals in matters of local law. But Congress has given us, and the Supreme Court of the United States upon certiorari, appellate jurisdiction over the Supreme Court of Puerto Rico in matters of local law where the jurisdictional amount is involved. It may well be that as a matter of legislative policy we ought not to have this jurisdiction; the present case is a good example, involving as it does a political matter of strictly local concern in San Juan, Puerto Rico. But as the law now stands litigants bring these cases to us as a matter of right, and we have to pass on them. It is a bit humiliating to this court to be obliged to act practically as a rubber stamp, or else to be reversed by the Supreme Court of the United States. Incidentally, we have two lines of appellate jurisdiction from Puerto Rico, one from the United States District Court for Puerto Rico~ and the other from the Supreme Court, of Puerto Rico. 28 U.S.C.A. § 225. Appeals from the District Court may involve questions of local Puerto Rican law; so far as we know, the “inescapably wrong” rule has never been applied in such cases. Suppose, upon such an appeal, we should decide a question of local law which had never been passed upon by the Supreme Court of Puerto Rico, and that subsequently, in other litigation, the same question should come before that court. Would it be “inescapably wrong” if it should refuse to follow our previous ruling on the point? Or is the Supreme Court of Puerto Rico free in such a case to make its own interpretation of the local law, brushing aside an earlier decision of this court, which on the face of 28 U.S.C.A. § 225 has appellate jurisdiction over it? We have gone into this case at such length not in any spirit of complaint, because we recognize that the Supreme Court of the United States applies to itself the same self-denying canon which it imposes on us; and it may be a good thing. But to save future litigants from disappointment and futile expense, we wish to reiterate that our appellate jurisdiction in this class of cases is pretty much of a dead letter. The judgment of the Supreme Court of Puerto Rico is affirmed, with costs to the appellee. Act No. 99: “Section 9. — The legislative powers conferred by this Act on the Capital shall be exercised by a governmental body which shall be officially known as ‘Board of Commissioners of San Juan.’ This Board of Commissioners shall be composed of five members, who shall be appointed by the Governor of Porto Rico, with the advice and consent of the Insular Senate, for the following terms: One Commissioner for a term of one year; One Commissioner for a term of two years; One Commissioner for a term of three years; One Commissioner for a term of four years; One Commissioner for a term of five years. “None of the first five commissioners appointed in accordance with this Act shall assume his ofiice until his appointment has been confirmed by the Insular Senate. “Section 10. — There are also hereby created the offices of City Manager, Treasurer, Director of Public Works, Director of Health and Charities, School Director, Auditor and Secretary of the Capital. “Section 21. — The City Manager shall be the chief executive of the Capital; he shall be appointed by the Board of Commissioners created by this Act and shall hold office during good conduct. “Section 22. — The City Manager may be removed by the Board of Commissioners, for just cause, upon hearing and an opportunity to defend himself either in person or through attorneys. The following shall be causes for the removal of the City Manager: Any act of his constituting a felony; any act of his constituting a misdemeanor and implying moral turpitude; or carelessness, inexcusable negligence in the performance of his duties, or immoral or incorrect conduct in the exercise thereof. “Section 26. — The City Manager shall appoint the following officers: (1) Treasurer of the Capital; (2) Director of Public Works; (3) Director of Health and Charities; (4) School Director; (5) Secretary of the Capital. “Section 27. — The Treasurer, the Director of Public Works, the Director of Health and Charities, the School Director, and the Secretary of the Capital may be removed by the City Manager, for just cause, upon hearing and an opportunity to defend themselves either in person or through attorneys. The following shall be causes for the removal of said officers; Any act of theirs constituting a felony; any act of theirs constituting a misdemeanor and implying moral turpitude; carelessness, or inexcusable ignorance in the performance of their duties, or immoral or incorrect conduct in the exercise thereof. “Section 36. — The Auditor of the Capital shall be appointed by the Board of Commissioners. This official may be removed by the Board of Commissioners for just cause, after a hearing and an opportunity to defend himself either personally or by attorneys. Causes for removal of this official shall be any act performed by him which constitutes a felony; any act performed by him which constitutes a misdemeanor and implies moral turpitude; carelessness or inexcusable negligence, or immoral and incorrect conduct, in the discharge of his office. * * * * e * • “Section 39. — All appointments of employees shall be made by the respective officers, according to the department, of the Capital in which they render services. Said employees shall be appointed for the term for which each officer is appointed. The employees of the Capital may be removed for just cause by the officer appointing them, after a hearing and an opportunity to defend themselves. Any employee may be suspended from office and salary upon the preferment of charges against him by the corresponding official. “Section 50. — The Board of Commissioners created by this Act shall be elected by popular vote at the general elections to be held in 1936, and every four years thereafter. The Commissioners appointed by the Governor of Porto Eico in accordance with section 9 of this Act shall hold office until the first Monday in January of 1937.” Amendatory Act. No. 10: “Section 1. — Section 50 of Act No. 99, entitled ‘An Act to establish a special government for the Capital of Puerto Eico, and for other purposes’, approved May 15, 1931, as subsequently amended, is hereby amended to read as follows: “ ‘Section 50. — The Board of Commissioners created by this Act shall be composed of nine members. Five of these nine members shall be elected by the popular vote of the qualified voters of both precincts of San Juan at the general elections to be held in 1940 and each succeeding four years. The other four members shall be appointed by the Governor of Puerto Eico with the advice and consent of the Insular Senate. The nine members of the Board of Commissioners shall take office on the second Monday in February following each general election; Provided, That the five members of the Board of Commissioners elected at the general election of 1936 shall continue in office until the end of the terms for which they were elected, and said Board of Commissioners shall be increased in the manner indicated as soon as this Act takes effect. * * * * * * See People of Puerto Rico ex rel. Luis A. Castro, - P.R.R. -, decided by tbe Supreme Court of Puerto Rico July 29, 1942. Whose “life”? Presumably not that of the employee, for the idea in § 39 seems to be that the employee holds office during the tenure of the officer who appointed him. If appellant is correct, the tenure of the city manager is for life unless sooner terminated by his resignation or removal for cause. In Ms opposition to the motion of the Board for stay of execution of the judgment insofar as it ordered reinstatement, filed in the court below, appellant, referring to the tenure of his predecessor in the office, said: “The fact remains that Mr. Benitez Castaño did not cease in the exercise of his office because a part of the Board of Commissioners was again elected in 1936, but because of his voluntary resignation, effective many months after January, 1937.” But we note that in appellant’s original petition in the District Court of San Juan, seeking review of the Board’s order of removal, appellant recites that he “held the public office of City Manager, appointed therefor by the respondent Board on the 4th of January 1937.” In the complaining petition filed before the Board, seeking removal of appellant, it is recited: “The respondent, Carlos M. de Castro is and has been at all times stated in this petition City Manager having been appointed by the Board of Commissioners of the Capital for that office during good conduct, in the month of January 1937, the said Carlos M. de Castro having taken possession of said office on the 4th day of January 1937 temporarily and on the 19th day of March 1937, as proprietor.” Appellant’s answer, referring to this paragraph in the complaint, states: “He admits that he is City Manager, appointed by the Board of Commissioners of San Juan and has been in the discharge of his present office from the 4th day of January 1937 up to the present time.” In the court’s opinion in Rodriguez v. de Castro, 1937, 52 P.R.R. 275, 277, there is quoted a letter written by appellant stating that Mr. Jesús Benitez Castaño “ceased to be City Manager of the Capital on the 19th of March, 1937.” It may be surmised from all this that the newly elected board coming into office on January 4, 1937, asserted on that day its power to appoint, and did appoint, appellant as city manager, but that the incumbent, Mr. Benitez Castaño, at -first demurred, perhaps making the claim which appellant now makes on this appeal, that the city manager holds office “during good conduct”. Question: Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_respond2_1_4

F

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant. Gary H. SILVERBERG, Carol B. Silverberg, Plaintiffs-Appellants, v. THOMSON McKINNON SECURITIES, INC.; Michael Morton, Defendants-Appellees. No. 85-3349. United States Court of Appeals, Sixth Circuit. Argued Feb. 28, 1986. Decided April 10, 1986. Bruce Tyler Wick (argued), Cleveland, Ohio, for plaintiffs-appellants. Ron Tonidandel (argued), Spieth, Bell, McCurdy, & Newell, Cleveland, Ohio, for defendants-appellees. Before JONES and WELLFORD, Circuit Judges, and GILMORE, District Judge. Honorable Horace W. Gilmore, United States District Court for the Eastern District of Michigan, sitting by designation. WELLFORD, Circuit Judge. Plaintiffs Gary and Carol Silverberg appeal from a memorandum opinion and order of the district court granting judgment in favor of defendants Thomson McKinnon Securities, Inc. (Thomson) and its employee, Michael Morton. Plaintiffs alleged that the defendants fraudulently induced them to speculate in the options market and then mishandled their accounts. Plaintiffs appeal from the dismissal of their claims under the Securities Exchange Act of 1934 (Exchange Act) and the Racketeer Influenced and Corrupt Organizations Act (RICO). Defendant Thomson employed defendant Morton as a broker representative. Morton served as the plaintiffs’ account executive for various stock and stock option transactions. Plaintiffs allege that they lacked experience and were induced to invest in speculative stock options by Morton, who allegedly told them that options trading presented minimal risks. Upon his advice, plaintiffs sold 600 shares of Bally Manufacturing stock which they held as custodians for their son under the Ohio Uniform Gifts to Minors Act, and used the proceeds to speculate in the options market. Plaintiffs, as a result, allegedly experienced a net loss of $15,850, or approximately 88 percent of the capital involved. In addition, plaintiffs alleged receipt of inaccurate and incomplete information from the defendants, thus preventing them from minimizing their losses. Finally, plaintiffs claimed that Morton converted sixteen shares of Ashland Oil stock owned by them to his own use. These events occurred from May 1978 through January 1979. After initially filing complaints against the defendants with the Securities and Exchange Commission and the Chicago Board of Options, on January 16, 1980, plaintiffs filed a complaint against defendants in the Cuyahoga County, Ohio, Court of Common Pleas. The amended complaint in the state court action alleged causes of action based on fraud and deceit, failure to advise, breach of fiduciary duty, negligent record-keeping and willful concealment of records, conversion, violations of certain rules of the National Association of Securities Dealers, the Chicago Board of Options Exchange, the American Stock Exchange, and the New York Stock Exchange, and violations of § 17(a) of the Securities Act of 1933,15 U.S.C. § 77q, § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5 thereunder. The Cuyahoga County Court of Common Pleas dismissed the action without opinion some four years later, and the Silverbergs appealed. The Ohio Court of Appeals later reversed in part, affirmed in part, and then remanded the case for consideration of the plaintiffs’ common law claims (fraud and deceit, negligent mismanagement and concealment of records, breach of fiduciary duty, and conversion). The Ohio appellate court concluded that the plaintiffs’ claim based on a failure to advise and on violation of exchange rules, dealers’ association rules, and § 17(a) of the Securities Act of 1933 failed to state a claim in Ohio state court upon which relief could be granted. It also affirmed the dismissal of the Silver-bergs’ claims under § 10(b) of the Securities Exchange Act of 1934 for lack of jurisdiction. The Ohio Court of Appeals also noted in response to plaintiffs’ arguments made for the first time on appeal that the Silverbergs’ complaint did not contain any count alleging violations of RICO, 18 U.S.C. §§ 1961-1968, and concluded that the lower court had not dismissed any claim under that statute which was susceptible to appellate review. While plaintiffs’ appeal was pending in state court, they commenced this action in federal court by filing a complaint on March 23, 1984. District Court Judge Aid-rich noted that [comparison of the complaint in the state court action with the complaint in this action reveals that they raised nearly identical claims in the first seven counts. In count eight, the Silverbergs add a claim under RICO which was not presented to the state court. (Footnote omitted). On March 27, 1985, the district court granted defendants’ motion for summary judgment. I. Plaintiffs’ first argument on appeal is that the district court improperly held that their claim under the Exchange Act was barred by the statute of limitations. That act does not itself provide a period of limitations under § 10(b) of the Exchange Act, but the district court looked instead to the state statute of limitations applicable to the most closely analogous Ohio cause of action: Many courts which have considered this question have concluded that the state cause of action most analogous to § 10(b) claims is one for fraud. See, i.e., McNeal [v. Paine, Webber, Jackson & Curtis, 598 F.2d 888 (5th Cir.1979)] at 893 (Georgia’s general fraud statute most analogous). The brokers suggest that the most analogous state statutes are either Ohio Rev.Code § 1707.28 (Ohio’s blue sky law) which carries a three year statute of limitations, or Ohio Rev.Code § 2305.-09(C), Ohio’s four year statute of limitations for torts involving fraud. Some courts have applied the blue sky law of a state. See Pierson v. Dean, Witter Reynolds, Inc., 551 F.Supp. 497 (N.D.Ill. 1982); Tomera v. Galt, 511 F.2d 504 (7th Cir.1975) (Illinois blue sky law applied. Under either statute of limitations, the Silverbergs’ claims are time-barred. This action, commenced March 24, 1984, was filed more than five years after the wrongful acts alleged in their complaint. The Silverbergs argue that the statute of limitations in Ohio Rev.Code 2305.07, applicable to cause of action created by statute, should govern. It carries a six year statute of limitations. This argument was long ago rejected. This precise issue was considered in a suit filed in this district pursuant to the Securities Exchange Act of 1934. [Quotation omitted.] ... Connelly v. Balkwill, 174 F.Supp. 49, 63-64 (N.D.Ohio 1959), aff'd, [279] 174 F.2d [685] 686 (6th Cir.1960). Having inspected the three Ohio statutes in issue, this Court concludes that Ohio Rev.Code § 2305.09 is most analogous and contains the appropriate statute of limitations. The plaintiffs argue that it was error to refuse to apply Ohio’s six-year limitations period for liabilities created by statute, Ohio Rev.Code Ann. § 2305.07 (Page 1981). With respect to the choice of the appropriate Ohio statute of limitations in § 10(b) cases, the law in this circuit is settled. In Nickels v. Koehler Management Corp., 541 F.2d 611 (6th Cir.1976) (McCree, J.), cert. denied, 429 U.S. 1074, 97 S.Ct. 813, 50 L.Ed.2d 792 (1977), this court held, in an extensive opinion, that the four-year limitations period provided under Ohio law for fraud claims, Ohio Rev.Code Ann. § 2305.-09(C) (Page 1981), would govern in § 10(b) actions. The decision rejected Ohio’s two-year blue sky period of limitation and cited with approval a prior decision, Connelly v. Balkwill, 174 F.Supp. 49, 63-64 (N.D.Ohio 1959), aff'd, 279 F.2d 685 (6th Cir.1960) (per curiam), which had specifically rejected Ohio’s six-year limitations period for liabilities created by statute, Ohio Rev.Code Ann. § 2305.07, now pressed as appropriate by plaintiffs. Plaintiffs’ argument in support of the application of a longer statute of limitations is based primarily on Ohio court rulings. Plaintiffs’ contentions are without merit in this regard, because determining the statute of appropriate limitations for a federal cause of action is clearly a question of federal law, controlled by federal precedent. See Wilson v. Garcia, — U.S.-, 105 S.Ct. 1938, 1942-44, 85 L.Ed.2d 254 (1985) (holding federal courts not bound by New Mexico court ruling concerning state statute of limitations applicable to 42 U.S.C. § 1983 actions). Plaintiffs’ next contention, that Ohio’s saving statute should have been applied by the district court, is equally unpersuasive. As the district court noted, federal securities law expressly and unambiguously vests exclusive jurisdiction of a § 10(b) claim in federal district courts. 15 U.S.C. § 78aa. Plaintiffs cite no authority for the proposition that, where periods of limitations for federal law claims are borrowed from state law, federal courts are bound to follow state savings statutes as well. Generally, federal courts hold that where periods of limitation are so provided by state law, federal law, not state law, governs such matters as accrual of causes of action and tolling. See, e.g., Gaudin v. KDI Corp., 576 F.2d 708 (6th Cir.1978) (accrual); Biggans v. Bache Halsey Stuart Shields, Inc., 638 F.2d 605 (3d Cir.1980) (accrual and tolling); ITT v. Cornfeld, 619 F.2d 909 (2d Cir.1980) (accrual). We agree with the district court that, under federal law, commencement of an action in a clearly inappropriate forum does not equitably toll the statute of limitations. See Chambliss v. Coca-Cola Bottling Corp., 274 F.Supp. 401, 408-11 (E.D.Tenn.1967) (prior action which failed for lack of in personam jurisdiction does not toll federal securities limitation period), aff'd, 414 F.2d 256, 257 (6th Cir.1969); Lillibridge v. Riley, 316 F.2d 232 (5th Cir.1963). II. Plaintiffs also appeal the dismissal of their RICO claim. The district court held that plaintiffs’ RICO claim was barred by claim preclusion because they failed to allege a cause of action under RICO in their prior state court suit and, alternatively, by their failure to plead with specificity the necessary predicate acts for a RICO claim. Because we hold that plaintiffs’ RICO claim was barred by the statute of limitations, we do not reach the grounds relied upon by the district court. Where, as with RICO, “Congress has not established a time limitation for a federal cause of action, the settled practice has been to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so.” Wilson v. Garcia, — U.S.-, 105 S.Ct. 1938, 1942, 85 L.Ed.2d 254 (1985) (footnote omitted). In Wilson, which dealt with 42 U.S.C. § 1983, the Supreme Court set forth the steps to follow in deciding what statute of limitations should govern a federal cause of action for which no express limitations period is provided. We first must decide whether one limitations period should apply to all RICO actions or whether differents period should apply depending on the underlying facts and circumstances of the case as to the nature of the claim. 105 S.Ct. at 1944-47. Next, we must determine what state limitations period applies to the kind of action the court has found RICO to be. Finally, the court must determine whether that limitation period is consistent with the policies of RICO and, if not, what limitations period better serves those policies. Id. at 1949; see also DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 161-72, 103 S.Ct. 2281, 2289-94, 76 L.Ed.2d 476 (1983). In Wilson v. Garcia, the Supreme Court held that state limitations periods should be selected in § 1983 cases by making a generic characterization of the federal cause of action and applying on a uniform basis the state limitations period applicable to the most generally analogous state cause of action. 105 S.Ct. at 1944-47. The Court’s decision rested heavily on the fact that 42 U.S.C. § 1983 provided “a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nation,” id. at 1945 (quoting Mitchum v. Foster, 407 U.S. 225, 235, 92 S.Ct. 2151, 2158, 32 L.Ed.2d 705 (1972)), and because it “is, in all events, ‘supplementary to any remedy any State might have,’ McNeese v. Board of Education, 373 U.S. 668, 672, 83 S.Ct. 1433, 1435, 10 L.Ed.2d 622 (1963), it can have no precise counterpart in state law,” id. The federal RICO statute is not such a “uniquely federal remedy” as § 1983, and we hold that, as with most federal causes of action without incorporated periods of limitations, the selection of the applicable state limitations period in the individual case should be made on the basis of a characterization of the kind of factual circumstances and legal theories presented. See Aronchick, Statutes of Limitations in Civil RICO Actions, 3 RICO L.Rep. 174, 175 (1986) (“Most of the reported decisions ... reflect an ad hoc approach ____”). In rejecting generic characterization, we note that Congress specifically considered and rejected the enactment of a limitations period for civil RICO actions, thus declining to adopt a uniform limitations period for all RICO claims. See State Farm Fire and Casualty Co. v. Estate of Caton, 540 F.Supp. 673, 684 (N.D.Ind.1982). We have little difficulty in characterizing the plaintiffs’ RICO claim, based on the facts alleged and the legal theories asserted, as a cause of action most closely analogous to a state common law fraud action. Although proof of plaintiff’s claim may require proof of certain elements beyond those required to establish common law fraud, no closer analogy is available under Ohio law. In Steven Operating, Inc. v. Home State Savings, 105 F.R.D. 7, 10-12 (S.D.Ohio 1984) (Rice, J.), another Ohio district court reached the same conclusion, similarly rejecting analogies to liabilities created by statute and statutes imposing a penalty or forfeiture. Thus, we hold that the four-year statute of limitations for fraud, Ohio Rev. Code § 2305.09(C) (Page 1981), provides the applicable limitations period in this case. Further, we find that application of this limitations period is not in any way inconsistent with the underlying policies or remedial purposes of RICO. Arising on essentially the same factual allegations as plaintiffs’ securities fraud claim, which was held time-barred under a four-year limitations period, plaintiffs’ RICO claim is also barred by the statute of limitations. The judgment of the district court is AFFIRMED. Construing in a manner most favorable to the Silverbergs, the latest available date in their complaint is April 30, 1979, the date on which the allegedly converted shares of Ashland Oil were finally returned. . This statute provides in pertinent part: The district courts of the United States, and the United States courts of any Territory or other place subject to the jurisdiction of the United States shall have exclusive jurisdiction of violations of this chapter 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 chapter or the rules and regulations thereunder. 15 U.S.C. § 78aa. . See Wilson v. Garcia, 105 S.Ct. at 1948-49, 1940-41 (rejecting similar period of limitations). Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant? A. bank B. insurance C. savings and loan D. credit union E. other pension fund F. other financial institution or investment company G. unclear Answer:

songer_procedur

D

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Donald BROWNE d/b/a Bailey Distributors, Respondent. No. 182, Docket 89-4062. United States Court of Appeals, Second Circuit. Argued Sept. 20, 1989. Decided Nov. 28, 1989. Richard S. Boris, New York City (Neal D. Haber, Moss & Boris, New York City, of counsel), for respondent. Judith A. Dowd, Supervisory Atty., NLRB, Washington, D.C. (Joseph E. Desio, Acting General Counsel, Robert E. Allen, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Frederick C. Havard, NLRB, Washington, D.C., of counsel), for petitioner. Before VAN GRAAFEILAND, MESKILL and KEARSE, Circuit Judges. MESKILL, Circuit Judge: This is a petition for enforcement of a supplemental order of the National Labor Relations Board (“NLRB” or “Board”) pursuant to section 10(e) of the National Labor Relations Act (“NLRA” or “Act”), 29 U.S.C. § 160(e), directing Respondent Donald Browne, d/b/a Bailey Distributors (“Bailey” or “Company”), to pay discrimi-natee Timothy Nevins $171,912, plus interest, in back pay and to reinstate certain pension benefits. Notwithstanding the uncontested fact that Nevins’ New York State driver’s license was either suspended or revoked for most of the back pay period in question, the Board based its calculation of his back pay award on a “driver’s” commission rate. In resisting enforcement of the Board’s order, Bailey contends that Nevins’ back pay should not have been calculated at the “driver’s” rate for the period of time that Nevins’ was legally prohibited from serving as a driver of Bailey’s delivery trucks and that Browne’s April 27, 1987 offer of reinstatement tolled the Company’s back pay liability. We deny enforcement of the petition and remand for recalculation of the back pay award. BACKGROUND The genesis of this proceeding is a Supplemental Decision and Order of the NLRB, dated April 14, 1987 and reported at 283 N.L.R.B. 647 (First Supplemental Order), in which Browne, as owner and operator of Bailey Distributors, was found to have discriminatorily denied Nevins employment as a “driver’s helper” on January 5, 1981 in violation of sections 8(a)(1) & (3) of the NLRA, 29 U.S.C. §§ 158(a)(1) & (3). The 1987 order directed Browne to offer Nevins employment “in the position for which he is qualified and in which he would have been employed but for the discrimination against him,” and to fully compensate Nevins for “any loss of earnings or ... benefits suffered as a result of the discrimination against him.” Donald Browne d/b/a Bailey Distributors, 283 N.L.R.B. 647, 648 (1987). On August 5, 1987, we entered a consent judgment enforcing the order. Thereafter, by letter dated April 27, 1987, Browne offered Nevins a position with Bailey as a driver’s helper. In addition, pursuant to the issuance of a Backpay Specification and Notice of Hearing, a hearing to determine Bailey’s back pay liability was held before an Administrative Law Judge (AU) on November 30 and December 1, 1987. Testimony at the hearing established that between 1977 and January 2, 1981, Nevins was employed sporadically by Bailey as a relief driver and a driver’s helper. Nevins also worked briefly as a regular driver on a newly established route that was cancelled in September 1980 for economic reasons. Furthermore, on a number of occasions prior to 1981, Browne had informed Nevins that he would be given the next delivery route to become available and that Nevins should “hang in there” until one of the drivers retired. However, on January 5, 1981, following the termination of one of Bailey’s regular drivers, Nevins was offered continued employment only as a driver’s helper, and only on the condition that he accept forty to fifty dollars a day “off the books” — i.e., in contravention of the wage and benefit provisions of the collective bargaining agreement between the Soft Drink Workers Union and the New York Pepsi-Cola Distributors Association, Inc., of which Bailey is a member. Further testimony revealed that Nevins’ driver’s license had been either suspended or revoked for most of the six and one-half year back pay period in question. Although Nevins testified that on January 5, 1981 he held a valid Class 1 license, which authorized operation of Bailey’s large commercial delivery vehicles, see N.Y.Veh. & Traf.Law § 501 2(a) (McKinney Supp.1989), that license was suspended on June 16, 1982 for failure to pay certain summonses. Before this suspension was lifted, Nevins’ license was again suspended on March 29, 1983. On May 13, 1987, Nevins was issued a Class 5 license, which authorized only the operation of passenger vehicles and small commercial trucks. See id. § 501 2(e) (McKinney 1986). This license was revoked on June 23, 1987 for operating a vehicle without insurance. After surrender of his license on November 30, 1987, Nevins obtained a Class 5 “restricted use license” on December 21, 1987 pursuant to N.Y.Veh. & Traf.Law § 530 (McKinney Supp.1989), which provides, in pertinent part, that “[a] person whose driving license ... has been ... suspended or revoked ... and for whom the holding of a valid license is a necessary incident to his employment ... may be issued a restricted use license.” This license was suspended on November 11, 1988, but reinstated on January 10, 1989. Thus, during the period between June 12, 1982 and January 10, 1989 Nevins drove legally for approximately twelve months — i.e., from May 13, 1987 to June 23, 1987 and from December 21, 1987 to November 9, 1988. On January 29, 1988, the AU ruled, inter alia, that although Nevins was discrim-inatorily denied hire as a “driver’s helper,” he was entitled to back pay calculated at a “driver’s” commission rate from February 15, 1981 forward, since he would have been promoted to a driver’s position by that date. Furthermore, the AU rejected Bailey’s contention that Nevins’ lack of a valid Class 1 driver’s license from June 16, 1982 forward, mandated that his back pay be calculated at the driver’s helper rate. Finally, the AU concluded that Browne’s April 27, 1987 offer of reinstatement did not toll Bailey’s back pay liability, as the offer had been improperly tainted by threatening statements made by Browne to Nevins on May 7, 1987 — four days prior to Nevins’ written acceptance of the offer. On February 14, 1989, the NLRB affirmed the AU’s rulings and issued a Second Supplemental Order awarding Nevins $171,912, plus interest, in back pay and the restoration of certain pension benefits. The Board presently seeks enforcement of its Second Supplemental Order. DISCUSSION In resisting enforcement of the NLRB’s Second Supplemental Order, Bailey contends that (1) the NLRB erroneously concluded that Nevins’ back pay should be calculated at the “driver’s” rate for the period of time that his driver’s license was suspended or revoked; and (2) the NLRB erroneously concluded that Browne’s April 27, 1987 offer of reinstatement, “which was unconditionally accepted by Nevins,” did not toll the Company’s back pay liability. A. Standard of Review Section 10(c) of the NLRA, 29 U.S.C. § 160(c), provides, in pertinent part: If ... the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue ... an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter. 29 U.S.C. § 160(c). In fashioning a particular remedy pursuant to section 10(c) the NLRB is given broad discretion, Detroit Edison Co. v. NLRB, 440 U.S. 301, 316, 99 S.Ct. 1123, 1131, 59 L.Ed.2d 333 (1979), and its remedial choice is subject to limited judicial scrutiny. Shepard v. NLRB, 459 U.S. 344, 349,103 S.Ct. 665, 669, 74 L.Ed.2d 523 (1983); NLRB v. Local 3, Int’l Brotherhood of Elec. Workers, 730 F.2d 870, 879 (2d Cir.1984); Teamsters Local 115 v. NLRB, 640 F.2d 392, 399 (D.C.Cir.), cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 102 (1981). On review, this choice will not be disturbed “ ‘unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.’ ” Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 405, 13 L.Ed.2d 233 (1964) (quoting Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943)); see also Bagel Bakers Council of Greater New York v. NLRB, 555 F.2d 304, 305 (2d Cir.1977) (per curiam) (remedial choice can be reversed “only if ... the method chosen was so irrational as to amount to an abuse of discretion”). Underlying factual findings of the NLRB will be conclusive if they are supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e); see also Local 3, 730 F.2d at 876. B. The Merits 1. Back Pay Calculation The Board based Nevins’ back pay calculation on the earnings of three Bailey employees who had been hired as “driver’s helpers” and subsequently promoted to “drivers.” The ALJ’s finding that “had Nevins been employed as a helper by Browne [on January 5, 1981] ... he would have [eventually] become the driver of the fourth truck route” is adequately supported by substantial evidence. Our review therefore focuses on the Board’s method of calculating Nevins’ back pay after he became entitled to a “driver’s” position. Bailey argues that since a Class 1 license was functionally necessary for Nevins’ employment as a “driver,” back pay should not have been calculated at the “driver’s” commission rate during the period of time that Nevins was “legally prohibited from operating the Company’s trucks.” We agree. While the NLRB's discretion in formulating remedial orders necessarily extends to determining the appropriate method of back pay calculation, see Bagel Bakers Council, 555 F.2d at 305, the Board is required to adopt a formula that will yield a “close approximation ]” of the amount due. NLRB v. Brown & Root, Inc., 311 F.2d 447, 452 (8th Cir.1963). Furthermore, it is well settled that the General Counsel for the NLRB must establish the “gross amount of back pay due,” before the burden shifts to the employer to “establish facts which would negative the existence of liability ... or which would mitigate that liability.” Id. at 454; accord NLRB v. Overseas Motors, Inc., 818 F.2d 517, 521 (6th Cir.1987); Florence Printing Co. v. NLRB, 376 F.2d 216, 223 (4th Cir.), cert. denied, 389 U.S. 840, 88 S.Ct. 68, 19 L.Ed.2d 104 (1967); NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569, 576 (5th Cir.1966). In ruling that the General Counsel had carried this burden and adequately established Bailey’s back pay liability, the ALJ found that “Nevins could have driven [Bailey’s] trucks legally by the act of paying any outstanding fines. Nevins could have been issued a restricted license as a ‘matter of mere routine’ and his failure to pay his fines when he did not need a driver’s license does not operate to bar him from his entitlement to backpay.” The NLRB affirmed these rulings, noting simply that “Nevins was qualified for the job.” After reviewing the record, we are unable to conclude that these findings are supported by substantial evidence. Although the method by which the Board calculated the amount of Nevins’ back pay might have been appropriate if Nevins had legally retained his Class 1 license throughout the six and one-half year period in question, the choice was an irrational one in light of Nevins’ self-imposed legal disability to serve as a driver of Bailey’s delivery trucks from June 16, 1982 forward. Between the June 16, 1982 suspension of his purported Class 1 license and the May 13, 1987 issuance of a Class 5 license, Nev-ins voluntarily forfeited his New York State driving privileges by refusing to pay his outstanding summonses. Only subsequent to the June 23, 1987 revocation of his Class 5 license did Nevins become eligible for a section 530 restricted use license. See N.Y.Comp.Codes R. & Regs. tit. 15, § 135.7(8) (1987). However, contrary to the ALJ’s conclusion that a Class 1 restricted license would have been issued as a “matter of mere routine,” section 530 provides, in pertinent part, that “[t]he issuance of a restricted use license ... shall be in the discretion of the commissioner of motor vehicles.” N.Y.Veh. & Traf.Law § 530(1) (emphasis added). Furthermore, a restricted license “shall be denied to any person ... [who] has had a series of convictions, incidents and/or accidents ..., which in the judgment of the commissioner tends to establish that the person would be an unusual and immediate risk upon the highways." N.Y.Comp.Codes R. & Regs. tit. 15, § 135.7(9). The only record evidence to inferentially support the AU's conclusions regarding Nevins' eligibility for a Class 1 license is the erroneous stipulation that on November 30, 1987, the first day of the back pay hearing, Nevins secured a Class 5 restricted use license by paying his outstanding summonses. In point of fact, Nevins did not obtain a Class 5 restricted use license until December 21, 1987--nearly three weeks after the termination of the back pay hearing. No evidence was proffered by the General Counsel to indicate that had Nevins applied for a Class 1 license, as opposed to a Class 5 license, one would have been routinely issued. Under the circumstances, we are unable to conclude that the Board's underlying factual findings are supported by substantial evidence considered on the record as a whole. During the six and one-half year back pay period in question, Nevins held only Class 5 and Class 5 restricted use licenses, which were valid from May 13, 1987 to June 23, 1987 and from December 21, 1987 forward (excepting a two month suspension from November 11, 1988 to January 10, 1989), respectively. During the remainder of the six and one-half year back pay period Nevins was legally prohibited from operating any motor vehicle. Consequently, we conclude that the method chosen to calculate Nevins' back pay-i.e., basing the award on a "driver's" commission rate-amounted to an abuse of the Board's discretion. A more rational formula, and one that we sanction, would base Nevins' back pay award on a "driver's" rate only for the time that he held a valid Class 1 license and on a "driver's helper" rate for the remainder of the back pay period in question. Finally, we note that the NLRB’s “ ‘power to order affirmative relief under § 10(c) is merely incidental to the primary purpose of Congress to stop and to prevent unfair labor practices. Congress a general scheme authorizing the Board to award full compensatory damages for injuries caused by wrongful conduct.’ ” Shepard, 459 U.S. at 352, 103 S.Ct. at 670 (quoting International Union, United Automobile, Aircraft and Agricultural Implement Workers v. Russell, 356 U.S. 634, 642-43, 78 S.Ct. 932, 937-38, 2 L.Ed.2d 1030 (1958)). Thus, while a back pay award is “necessitated by the employer’s wrongful conduct,” Bagel Bakers Council, 555 F.2d at 305, its purpose is to effectuate national labor policies by making the aggrieved employee whole, and not to reward a discriminatee for being a scofflaw. By disregarding his legal obligations to promptly pay his traffic summonses and to insure his vehicle, Nevins voluntarily forfeited his New York State driving privileges and, consequently, his right to be compensated at the “driver’s” commission rate. 2. Offer of Employment Bailey contends that Browne's Apri] 27, 1987 offer to employ Nevins as a "help. er" tolled the Company's back pay liability. However, based on Nevins' uncontested testimony, the ALl found that the validity of the offer was undermined by a May 7, 1987 telephone conversation in whicI~ Browne told Nevins that: "[YIJou don't want to come back to work here. Some things have surfaced about you.... A lol of accidents happen around here. You don't want to come back to work here.' After reviewing the record, we conclude that the Board's finding of invalidity i~ amply supported by substantial evidence. Furthermore, Bailey's argument that the NLRB is estopped from contesting the va~ lidity of the reinstatement offer because Nevins "unconditionally" accepted it on May 11, 1987-four days after the improper statements were made-is without mer~ it, as the Company never complied with the Board's First Supplemental Order. It is well settled that a remedial offer of reinstatement must be firm, clear and unconditional. Canova v. NLRB, 708 F.2d 1498, 1505 (9th Cir.1983); Oil, Chemical and Atomic Workers Int’l Union v. NLRB, 547 F.2d 598, 601 n. 3 (D.C.Cir.1976), cert. denied, 429 U.S. 1078, 97 S.Ct. 823, 50 L.Ed.2d 798 (1977). The offer must also be made in good faith. NLRB v. Rice Lake Creamery Co., 365 F.2d 888, 894 (D.C.Cir.1966); NLRB v. Interurban Gas Co., 354 F.2d 76, 78 (6th Cir.1965); Lakeland Bus Lines, Inc. v. NLRB, 278 F.2d 888, 892 (3d Cir.1960). Moreover, under recent decisions of the NLRB, the acceptance of an invalid reinstatement offer does not toll the back pay period. See IMCO/Int’l Measurement & Control Co., 277 N.L.R.B. 962, 962 (1985); Sumco Mfg. Co., 267 N.L.R.B. 253, 258 (1983), enforced, 746 F.2d 1189 (6th Cir.1984) (per curiam), cert. denied, 471 U.S. 1100, 105 S.Ct. 2323, 85 L.Ed.2d 842 (1985). Based on the record, we are unable to conclude that Browne’s offer of reinstatement, as was mandated by the Board’s First Supplemental Order, was made in good faith. Whatever validity the April 27 letter to Nevins may initially have had as a remedial offer of employment, the offer was arguably undermined to the point of indirect revocation by Browne’s threatening statements of May 7, 1987, which are undenied on the record. See 1 S. Williston, A Treatise on the Law of Contracts § 55, at 178 (3d ed. 1957) (Any statement that “clearly implies unwillingness to contract according to the terms of the offer” may act as a revocation.). At a minimum, Browne’s statements made it clear that Nevins’ return was unwanted and were undoubtedly designed to deter his acceptance. As such, the threats so tainted the offer that it appears questionable at best, whether Nevins’ reinstatement was ever intended. We therefore reject Bailey's contention that Nevins’ acceptance of the tainted reinstatement offer tolled the Company’s back pay liability. CONCLUSION Because a Class 1 license was functionally necessary for Nevins’ employment as a “driver,” the Board abused its discretion by basing Nevins’ back pay award on a “driver’s” commission rate during the period when he was legally prohibited from operating Bailey's delivery trucks. The petition of the Board for enforcement of its Second Supplemental Order is denied and the cause is remanded for recalculation of Bailey’s back pay liability in accordance with this opinion. . During the six year hiatus between the events that gave rise to Nevins’ claim and the NLRB’s First Supplemental Decision, this case came before us on a petition to review an earlier order of the NLRB dismissing Nevins’ unfair labor practices complaint against Browne. Nevins v. NLRB, 796 F.2d 14 (2d Cir.1986). Concluding that the NLRB’s standard for determining whether to defer to an arbitral decision under Olin Corp., 268 N.L.R.B. 573 (1984), had not been satisfied, we vacated the order and remanded the matter to the NLRB for further proceedings. 796 F.2d at 19-20. On remand the NLRB ruled that Browne had violated sections 8(a)(1) & (3) of the NLRA, 29 U.S.C. §§ 158(a)(1) & (3), by conditioning Bailey’s offer to employ Nevins on his accepting sub-union scale wages and benefits. Donald Browne d/b/a Bailey Distributors, 283 N.L.R.B. 647, 648 (1987). . Although Browne did not testify, he apparently had no knowledge of Nevins’ lack of a valid New York State driver’s license until the first day of the back pay hearing, when Nevins disclosed this information on cross-examination. And while Nevins’ testimony regarding his driving record was sketchy at best, Bailey’s request for an adjournment to explore this "newly revealed” information was denied. Thereafter, albeit without the aid of Nevins' Abstract of Operating Record, the parties stipulated to certain aspects of the suspension and revocation of Nev-ins’ license. Upon receipt of the Abstract from the New York State Department of Motor Vehicles, Bailey then filed a Motion for Reconsideration with the NLRB pursuant to 29 C.F.R. § 102.48(d). The motion was denied by letter, dated June 16, 1989, on the ground that the case was pending before this Court. 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_origin

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. UNITED STATES of America, Plaintiff-Appellee, v. Robert L. SMITH, Defendant-Appellant. No. 88-2563. United States Court of Appeals, Tenth Circuit. March 29, 1990. David Cooper, Asst. U.S. Atty. (Benjamin L. Burgess, Jr., U.S. Atty., and Kurt J. Shernuk, Asst. U.S. Atty., with him on the briefs), Topeka, Kan., for plaintiff-appellee. Michael L. Harris, Asst. Federal Public Defender (Charles D. Anderson, Federal Public Defender, with him on the brief), Kansas City, Kan., for defendant-appellant. Before LOGAN and BALDOCK, Circuit Judges, and PHILLIPS , District Judge The Honorable LAYN R. PHILLIPS, United States District Judge for the Western District of Oklahoma, sitting by designation. PHILLIPS, District Judge. “Dates are important.” Derstein v. Van Buren, 828 F.2d 653, 654 (10th Cir.1987). So are prepositions. In this case we examine the chronology of a defendant’s criminal record and interpret the meaning of the preposition “within” in the context of a Sentencing Guideline utilized in computing a defendant’s criminal history category. Riding on the outcome of this interpretation is whether the defendant’s permissible sentencing range is 70 to 87 months, or 92 to 115 months. We hold that the higher range governs and AFFIRM the sentence imposed by the district judge. I. On June 24, 1988, defendant Robert L. Smith entered a plea of guilty in the United States District Court for the District of Kansas to one count charging him with the December 12, 1987 kidnapping of Linda Lampley, defendant’s former wife. [Vol. I at 3]. A presentence report was ordered and a sentencing hearing was set for September 16, 1988. The statutory penalty for kidnapping is a term of imprisonment for any term of years or for life. 18 U.S.C. § 1201(a). Because defendant’s kidnapping offense was committed after November 1, 1987, the Sentencing Reform Act of 1984 was applicable. Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, §§ 211-39, 98 Stat. 1837, 1987-2040 (1985) (“the Act”). The Probation Officer’s application of the Act’s Sentencing Guidelines (“the guidelines”) produced a recommended range of punishment from 92 to 115 months. This range was set forth in the presentence report. [Vol. II at 8]. Prior to the sentencing date, the parties were given an opportunity to lodge objections to the presentence report. Defendant’s objections focused on the Probation Officer’s computation of defendant’s criminal history category under the guidelines. Specifically, Smith objected to the Probation Officer’s inclusion of six points given for two state court sentences imposed on Smith after December 12, 1987, the date of the Lampley kidnapping, but prior to the September 16, 1988 sentencing proceeding on the kidnapping charge. [Vol. II at 15]. The six point addition to defendant’s criminal history score arose out of two sentences imposed by a Minnesota state court judge on March 22, 1988, more than three months after the December 12, 1987 kidnapping offense. [Vol. II at 5-7], Specifically, on March 22, 1988, in the District Court of Hennepin County, Minneapolis, Minnesota, Smith was sentenced to 15 months incarceration following his plea of guilty to the charge of being a convicted felon in possession of a handgun. Defendant committed this offense on December 30, 1987. Id. Also, on March 22, 1988, defendant’s probation from a 1984 felony assault conviction was revoked and defendant was sentenced to 21 months incarceration. The Minnesota state judge who sentenced the defendant ordered the two sentences to run concurrently. [Vol. II at 5-7]. As noted above, the sentencing for both of these Minnesota offenses occurred after the events which formed the basis of the kidnapping charge but prior to the sentencing on the kidnapping charge. On September 16, 1988, defendant appeared for sentencing in Kansas federal court on the kidnapping charge. Defendant objected to the presentence report on the ground that the 1988 Minnesota sentences did not qualify as “prior sentences” for purposes of computing defendant’s criminal history category for sentencing on the 1987 kidnapping. He argued that the guidelines only included as “prior sentences” those sentences imposed by a court prior to the commission of the instant offense. [Vol. Ill at 3-5]. Relying on guideline Section 4Al.2(a)(1), the government asserted that “prior sentence” meant any sentence previously imposed. [Vol. Ill at 5]. The district court overruled defendant’s objections, found the relevant guideline range to be 92 to 115 months, and sentenced appellant to a term of imprisonment of 92 months, the very bottom of the guideline range. According to defendant, had the trial court applied the guidelines correctly, and deleted the 1988 Minnesota sentences from defendant’s criminal history score on the 1987 kidnapping, his sentencing range would be 70 to 87 months. This appeal followed. The sole issue on appeal is whether the Minnesota sentences, imposed after the date of defendant’s kidnapping offense, but prior to the date of the sentencing on the kidnapping charge, are “prior sentences” for purposes of the guidelines. II. The Sentencing Reform Act of 1984 was enacted to achieve greater uniformity in the sentencing of federal crimes. Its provisions “are designed to structure judicial sentencing discretion, eliminate indeterminate sentencing, phase out parole release, and make criminal sentencing fairer and more certain.” S.Rep. No. 225, 98th Cong., 2d Sess. 65, reprinted in 1984 U.S. Code Cong. & Admin.News 3182, 3248. The Act provides that “[ejxcept as otherwise specifically provided, a defendant who has been found guilty of an offense described in any Federal statute ... shall be sentenced in accordance with the provisions of this chapter.” 18 U.S.C. § 3551(a) (Supp. V 1987) (current version at 18 U.S.C. § 3551(a) (1988)). The guidelines adopted pursuant to the Sentencing Reform Act are an integrated, comprehensive set of rules intended to replace the former system of federal sentencing. In January 1989, the Supreme Court upheld the constitutionality of the guidelines and the Sentencing Reform Act against challenges that the Act constituted an unconstitutional delegation of legislative authority and that, together with the guidelines, the Act violated the constitutional doctrine of separation of powers. Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The guidelines establish a recommended range of determinate sentences based in part on categories of offenses and the history and characteristics of the defendant. In general, a sentencing court must select a sentence within a guideline’s range but may depart from the guidelines if it “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b). This case does not involve an alleged improper departure, e.g., United States v. White, 893 F.2d 276, 277 (10th Cir.1990), but rather a challenge to the guideline range selected by the district court. This court reviews sentences imposed under the guidelines according to the statutory standard provided by the Sentencing Reform Act of 1984 and codified at 18 U.S.C. § 3742. Section 3742(e) provides, in relevant part: Consideration. — Upon review of the record, the court of appeals shall determine whether the sentence— (1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; (3) is outside the applicable guideline range, and is unreasonable, having regard for— (A) the factors to be considered in imposing a sentence, as set forth in chapter 227 of this title; and (B) the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or (4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable. While we must give “due deference to the district court’s application of the guidelines to the facts,” 18 U.S.C. § 3742(e), we review the application of the guidelines fully for errors of law. United States v. Kirk, 894 F.2d 1162 (10th Cir.1990) (“legal conclusions with respect to the guidelines are subject to de novo review”); United States v. Smith, 888 F.2d 720, 723 (10th Cir.1989); United States v. Otero, 868 F.2d 1412, 1414 (5th Cir.1989). The guidelines must be interpreted as if they were a statute or a court rule. Cf. Mistretta v. United States, 109 S.Ct. at 664-65; United States v. Goldbaum, 879 F.2d 811, 813 (10th Cir.1989). As with statutory interpretations, our analysis must begin with the language of the guidelines in question. In the absence of express contrary intent we must follow the clear and unambiguous language of the guidelines. United States v. Goldbaum, 879 F.2d at 813. III. Under the guidelines, a defendant’s criminal history category is to be determined independently of the offense level. United States v. Goldbaum, 879 F.2d 811 (10th Cir.1989); United States v. Reyes-Ruiz, 868 F.2d 698, 700 (5th Cir.1989). The rules for calculating a defendant’s criminal history category are delineated in Chapter Four of the guidelines. Under Section 4A1.1, points are given for each “prior sentence.” The term “prior sentence” is defined in guideline section 4A1.2(a)(l). A “prior sentence” is “any sentence previously imposed upon adjudication of guilt.... for conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1). The number of points given for each “prior sentence” is dependent on the length of the prior sentence. U.S.S.G. § 4Al.l(a)-(c). A “prior sentence of imprisonment” greater than one year and one month is given three (3) criminal history points. U.S.S.G. § 4Al.l(a). Here the two March 22, 1988 Minnesota sentences were undeniably imposed prior to the September 16, 1988 kidnapping sentence. Similarly, it is undisputed that the Minnesota sentences represented conduct which was not part of the kidnapping offense. Moreover, it is undisputed that both sentences were in excess of one year and one month. This, however, does not end our inquiry. Section 4A1.2(e) defines the applicable time period for prior sentences and provides: (1) Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant’s commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month that resulted in the defendant’s incarceration during any part of such fifteen-year period. (2) Any other prior sentence that was imposed within ten years of the defendant’s commencement of the instant offense is counted. (3) Any prior sentence not within the time periods specified above is not counted. Because defendant’s 92 month kidnapping sentence arose out of a December 12, 1987 kidnapping, defendant contends that the sentences imposed by the State of Minnesota on March 22, 1988, are not “within” the time period defined in Section 4A1.2: Appellant asserts that Section 4A1.2(e) is clear and it’s [sic] expression of intent unambiguous. A sentence of imprisonment longer than one year and one day [sic] imposed within fifteen years of “commencement of the instant offense” is counted. United States Sentencing Commission Guidelines Manual, Section 4A1.2(e), page 4.5. Otherwise it is not. Translating that statement into the factual context of this case, the applicable time period for counting a prior sentence of longer than one year and one day [sic] would include any such sentence imposed within fifteen years of December 12, 1987. The challenged sentences were not imposed within these parameters, and cannot be used to increase Appellant’s Criminal Record History Category. Appellant’s Brief at 5-6. Under defendant’s theory, any sentence imposed after the commission of the instant offense would not qualify as a “prior sentence.” The government, on the other hand, focuses on the meaning of the word “within”, as well as the Sentencing Commission’s Commentary and Supplementary Illustrations which accompany the guidelines. A careful review of these materials supports the government’s position. At oral argument government counsel observed that one who promises to arrive at a function “within” fifteen minutes of 10:00 a.m. fulfills that obligation if he/she arrives at 9:45 a.m. or 10:15 a.m. Support for this interpretation is found in Webster’s Third New International Dictionary (1981), which defines “within” as a preposition meaning “not longer in time than before the end or since the beginning of,” and “used as a function word to indicate a specified difference or margin of error.” Webster’s at 2627. One example provided by Webster’s is: “came within two percentage points of a perfect mark.” Another example provided is: “guessed her weight to within two pounds.” The plain meaning of the word “within” thus cuts against defendant’s assertion that only sentences imposed prior to December 12, 1987 qualify as “within” fifteen years of the defendant’s commencement of the instant offense. Defendant’s interpretation is also at odds with the clear intention of the Sentencing Commission as reflected by the “commentary” to guideline Section 4A1.2. Section 1B1.7 of the sentencing guidelines provides that the “commentary” to the guidelines may serve three purposes: (1) to interpret the guidelines or explain how they are applied; (2) suggest circumstances which may warrant departure from the guidelines; and (3) provide background information and factors considered in promulgating the guidelines and reasons underlying the guidelines. The commentary to Section 1B1.7 anticipates that “courts will treat the commentary much like legislative history.” U.S.S.G. § 1B1.7, commentary. Indeed, we view the commentary “essential in correctly and uniformly applying the guidelines.” United States v. Rutter, 897 F.2d 1558, 1561 (10th Cir.1990) (1990 WL 25690); United States v. Carroll, 893 F.2d 1502, 1511 (6th Cir.1990); United States v. Smeathers, 884 F.2d 363, 364 (8th Cir.1989); United States v. Ofchinick, 877 F.2d 251, 257 (3rd Cir.1989). Because guideline Section 4A1.2(e) is less than a model of clarity when read in light of the other criminal history guidelines, we have carefully examined the Commission’s commentary and illustrations to ascertain its meaning. The Commentary to Section 4A1.2 provides as follows: Prior sentence means a sentence imposed prior to sentencing on the instant offense, other than a sentence for conduct that is part of the instant offense. See, § 4A1.2(a). A sentence imposed after a defendant’s commencement of the instant offense, but prior to sentencing on the instant offense, is a prior sentence if it was for conduct other than conduct that was part of the instant offense. U.S.S.G. § 4A1.2, commentary (n. 1). The intent of the Sentencing Commission, as reflected in its commentary, supports the trial court’s decision to include the March 22, 1988, Minnesota sentences as “prior sentences” in this case. Further support for this interpretation is found in the Sentencing Commission’s Supplementary Illustrations. On January 7, 1988, the Sentencing Commission issued its Supplementary Illustrations for computing criminal history. One of the examples provided by the Commission is strikingly similar to the instant case, and provides a window to the Commission’s intent in the drafting of its “prior sentence” guidelines. The Supplementary Illustration provides in pertinent part as follows: I. CRIMINAL HISTORY CATEGORY AND INSTRUCTIONS AND DEFINITIONS FOR COMPUTING CRIMINAL HISTORY (§§ 4A1.1 and 4A1.2) The examples below illustrate the interaction of §§ 4A1.1 and 4A1.2 in the computation of criminal history points. A. Prior Sentence Defined. Example A. 2. The instant offense (a bank robbery) was committed on 11 — 1— 87. The defendant was arrested for that offense on 12-1-87 and is to be sentenced on 4-2-88. The defendant’s criminal history includes a conviction for assault resulting from an offense (involving a fight in a bar) committed on 11 — 12— 87 (at age 23). On 2-2-88, the defendant was sentenced to a $500 fine and restitution in the amount of $278 for that offense. One criminal history point is assigned under § 4Al.l(c) for the sentence imposed on 2-2-88. This sentence is a “pri- or sentence” because it was imposed pri- or to sentencing on the instant offense for conduct that was not part of the instant offense. Note that a “prior sentence” may include a sentence that was imposed after the commission of the instant offense for conduct that occurred either before or after the instant offense. See § 4A1.2(a)(l) and the Commentary to § 4A1.2 (Application Note 1). The Commission’s illustration is directly on point. Like the instant case, the illustration involves the same chronological sequence: a defendant’s commission of Crime A, the defendant’s subsequent sentencing on Crime B (which was not part of Crime A), and then a subsequent sentencing on Crime A. Under such circumstances, it is clear that the Commission intended for Crime B to qualify as a “prior sentence” when computing the criminal history category for Crime A. In the instant case, Crime A is defendant’s December 12, 1987, kidnapping, the sentencing on Crime B is represented by defendant’s March 1988, Minnesota sentences, and the sentencing on Crime A is represented by the September 1988 kidnapping sentencing. To the extent Section 4A1.2(e) is ambiguous regarding the meaning of the word “within”, the Commission’s commentary and illustrations resolve that ambiguity in favor of the government’s interpretation. The word “within” is not mere verbiage. It must have meaning and does have meaning, but not the meaning advanced by defendant. We read guideline Sections 4A1.-2(e) and 4A1.2(a)(1) to include as “prior sentences” the two March 1988, Minnesota sentences imposed after defendant’s December 12, 1987, kidnapping offense, but prior to defendant’s September 1988, sentencing on the kidnapping offense. Because we conclude that defendant’s permissible sentencing range was 92 to 115 months under the guidelines, and because the 92-month sentence imposed by the district court fell within this guideline range, we AFFIRM the sentence imposed by the United States District Court for the District of Kansas. AFFIRMED. . In the presentence report, 3 points each were given for the IS month and 21 month sentences. [Vol. II at 5-7], See United States Sentencing Commission, Guidelines Manual, § 4A1.2(k)(2) and commentary (n. 11). . At the time of his appearance in Kansas federal court, defendant was a Minnesota state prisoner, appearing by Writ of Habeas Corpus Ad Prosequendum. [Vol. II at 1], He was returned to Minnesota state custody following the federal sentencing proceeding. .Vol. Ill at 6, 11 and 14. This sentence was based on an offense severity rating of 26 and a criminal history category of IV. [Vol. II at 8]. . This computation is based on a criminal history category of II and an offense severity rating of 26. . The second sentence of Section 4A1.2(e)(l) was amended effective November 1, 1989, for purposes of clarification. See U.S.S.G. APP. C, numbered paragraph 262 at p. C.136. The amendment is not at issue in this appeal. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:

sc_certreason

B

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. SINOCHEM INTERNATIONAL CO. LTD. v. MALAYSIA INTERNATIONAL SHIPPING CORP. No. 06-102. Argued January 9, 2007 Decided March 5, 2007 Ginsburg, J., delivered the opinion for a unanimous Court. Gregory A. Castanias argued the cause for petitioner. With him on the briefs was Stephen M. Hudspeth. Douglas H. Hallward-Driemeier argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, Michael S. Raab, and Stephanie R. Marcus. Ann-Michele G. Higgins argued the cause for respondent. With her on the brief were Joshua Bachrach and Kevin L. McGee. Justice Ginsburg delivered the opinion of the Court. This case concerns the doctrine of forum non conveniens, under which a federal district court may dismiss an action on the ground that a court abroad is the more appropriate and convenient forum for adjudicating the controversy. We granted review to decide a question that has divided the Courts of Appeals: “[wjhether a district court must first conclusively establish [its own] jurisdiction before dismissing a suit on the ground of forum non conveniens?” Pet. for Cert. i. We hold that a district court has discretion to respond at once to a defendant’s forum non conveniens plea, and need not take up first any other threshold objection. In particular, a court need not resolve whether it has authority to adjudicate the cause (subject-matter jurisdiction) or personal jurisdiction over the defendant if it determines that, in any event, a foreign tribunal is plainly the more suitable arbiter of the merits of the case. I The underlying controversy concerns alleged misrepresentations by a Chinese corporation to a Chinese admiralty court resulting in the arrest of a Malaysian vessel in China. In 2003, petitioner Sinochem International Company Ltd. (Sinochem), a Chinese state-owned importer, contracted with Triorient Trading, Inc. (Triorient), a domestic corporation that is not a party to this suit, to purchase steel coils. Pursuant to the agreement, Triorient would receive payment under a letter of credit by producing a valid bill of lading certifying that the coils had been loaded for shipment to China on or before April 30, 2003. Memorandum and Order of Feb. 27, 2004, No. Civ. A. 03-3771 (ED Pa.), App. to Pet. for Cert. 48a-49a (hereinafter Feb. 27 Memo & Order). Triorient subchartered a vessel owned by respondent Malaysia International Shipping Corporation (Malaysia International), a Malaysian company, to transport the coils to China. Triorient then hired a stevedoring company to load the steel coils at the Port of Philadelphia. A bill of lading, dated April 30, 2003, triggered payment under the letter of credit. Id., at 49a. On June 8, 2003, Sinochem petitioned the Guangzhou Admiralty Court in China for interim relief, i. e., preservation of a maritime claim against Malaysia International and arrest of the vessel that carried the steel coils to China. In support of its petition, Sinochem alleged that the Malaysian company had falsely backdated the bill of lading. The Chinese tribunal ordered the ship arrested the same day. Id., at 50a; App. in No. 04-1816 (CA3), pp. 56a-57a (Civil Ruling of the Guangzhou Admiralty Court). Thereafter, on July 2, 2003, Sinochem timely filed a complaint against Malaysia International and others in the Guangzhou Admiralty Court. Sinochem's complaint repeated the allegation that the bill of lading had been falsified resulting in unwarranted payment. Malaysia International contested the jurisdiction of the Chinese tribunal. Feb. 27 Memo & Order, at 50a; App. in No. 04-1816 (CA3), pp. 52a-53a (Civil Complaint in Guangzhou Admiralty Court). The admiralty court rejected Malaysia International’s jurisdictional objection, and that ruling was affirmed on appeal by the Guangdong Higher People’s Court. App. 16-23. On June 23, 2003, shortly after the Chinese court ordered the vessel’s arrest, Malaysia International filed the instant action against Sinoehem in the United States District Court for the Eastern District of Pennsylvania. Malaysia International asserted in its federal court pleading that Sinochem’s preservation petition to the Guangzhou court negligently misrepresented the “vessel’s fitness and suitability to load its cargo.” Feb. 27 Memo & Order, at 50a (internal quotation marks omitted). As relief, Malaysia International sought compensation for the loss it sustained due to the delay caused by the ship’s arrest. Sinoehem moved to dismiss the suit on several grounds, including lack of subject-matter jurisdiction, lack of personal jurisdiction, forum non conveniens, and international comity. App. in No. 04-1816 (CA3), pp. 14a-20a, 39a-40a. The District Court first determined that it had subject-matter jurisdiction under 28 U. S. C. § 1333(1) (admiralty or maritime jurisdiction). Feb. 27 Memo & Order, at 51a-54a. The court next concluded that it lacked personal jurisdiction over Sinoehem under Pennsylvania’s long-arm statute, 42 Pa. Cons. Stat. §5301 et seq. (2002). Nevertheless, the court conjectured, limited discovery might reveal that Sinochem’s national contacts sufficed to establish personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2). Feb. 27 Memo & Order, at 55a-63a. The court did not permit such discovery, however, because it determined that the case could be adjudicated adequately and more conveniently in the Chinese courts. Id., at 63a-69a; Memorandum and Order of Apr. 13, 2004, No. Civ. A. 03-3771 (ED Pa.), App. to Pet. for Cert. 40a-47a (hereinafter Apr. 13 Memo & Order) (denial of Rule 59(e) motion). No significant interests of the United States were involved, the court observed, Feb. 27 Memo & Order, at 65a-67a; Apr. 13 Memo & Order, at 44a-47a, and while the cargo had been loaded in Philadelphia, the nub of the controversy was entirely foreign: The dispute centered on the arrest of a foreign ship in foreign waters pursuant to the order of a foreign court. Feb. 27 Memo & Order, at 67a. Given the proceedings ongoing in China, and the absence of cause “to second-guess the authority of Chinese law or the competence of [Chinese] courts,” the District Court granted the motion to dismiss under the doctrine of forum non conveniens. Id., at 68a. A panel of the Court of Appeals for the Third Circuit agreed there was subject-matter jurisdiction under § 1333(1), and that the question of personal jurisdiction could not be resolved sans discovery. Although the court determined that forum non conveniens is a nonmerits ground for dismissal, the majority nevertheless held that the District Court could not dismiss the case under the forum non conveniens doctrine unless and until it determined definitively that it had both subject-matter jurisdiction over the cause and personal jurisdiction over the defendant. 436 F. 3d 349 (2006). Judge Stapleton dissented. Requiring a district court to conduct discovery on a jurisdictional question when it “rightly regards [the forum] as inappropriate,” he maintained, “subverts a primary purpose of” the forum non conveniens doctrine: “protecting] a defendant from ... substantial and unnecessary effort and expense.” Id., at 368. The “court makes no assumption of law declaring power,” Judge Stapleton observed, “when it decides not to exercise whatever jurisdiction it may have.” Id., at 370 (quoting Ruhrgas AG v. Marathon Oil Co., 526 U. S. 574, 584 (1999), in turn quoting In re Papandreou, 139 F. 3d 247, 255 (CADC 1998)). We granted certiorari, 548 U. S. 942 (2006), to resolve a conflict among the Circuits on whether forum non conve niens can be decided prior to matters of jurisdiction. Compare 436 F. 3d, at 361-364 (case below); Dominguez-Cota v. Cooper Tire & Rubber Co., 396 F. 3d 650, 652-654 (CA5 2005) (per curiam) (jurisdictional issues must be resolved in advance of a forum non conveniens ruling), with Intec USA, LLC v. Engle, 467 F. 3d 1038, 1041 (CA7 2006); In re Arbitration Between Monegasque de Reassurances S. A. M. (Monde Re) v. NAK Naftogaz of Ukraine, 311 F. 3d 488, 497-498 (CA2 2002); In re Papandreou, 139 F. 3d, at 255-256 (forum non conveniens may be resolved ahead of jurisdictional issues). Satisfied that forum non conveniens may justify dismissal of an action though jurisdictional issues remain unresolved, we reverse the Third Circuit’s judgment. II A federal court has discretion to dismiss a case on the ground of forum non conveniens “when an alternative forum has jurisdiction to hear [the] case, and ... trial in the chosen forum would establish . . . oppressiveness and vexation to a defendant... out of all proportion to plaintiff’s convenience, or ... the chosen forum [is] inappropriate because of considerations affecting the court’s own administrative and legal problems.” American Dredging Co. v. Miller, 510 U. S. 443, 447-448 (1994) (quoting Piper Aircraft Co. v. Reyno, 454 U. S. 235, 241 (1981), in turn quoting Koster v. (American) Lumbermens Mut. Casualty Co., 330 U. S. 518, 524 (1947)). Dismissal for forum non conveniens reflects a court’s assessment of a “range of considerations, most notably the convenience to the parties and the practical difficulties that can attend the adjudication of a dispute in a certain locality.” Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 723 (1996) (citations omitted). We have characterized forum non conveniens as, essentially, “a supervening venue provision, permitting displacement of the ordinary rules of venue when, in light of certain conditions, the trial court thinks that jurisdiction ought to be declined.” American Dredging, 510 U. S., at 453; cf. In re Papandreou, 139 F. 3d, at 255 (forum non conveniens “involves a deliberate abstention from the exercise of jurisdiction”). The common-law doctrine of forum non conveniens “has continuing application [in federal courts] only in cases where the alternative forum is abroad,” American Dredging, 510 U. S., at 449, n. 2, and perhaps in rare instances where a state or territorial court serves litigational convenience best. See 14D C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3828, pp. 620-623, and nn. 9-10 (3d ed. 2007). For the federal court system, Congress has codified the doctrine and has provided for transfer, rather than dismissal, when a sister federal court is the more convenient place for trial of the action. See 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.”); cf. § 1406(a) (“The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.”); Goldlawr, Inc. v. Heiman, 369 U. S. 463, 466 (1962) (Section 1406(a) “authorize^] the transfer of [a] eas[e]... whether the court in which it was filed had personal jurisdiction over the defendants or not.”). A defendant invoking forum non conveniens ordinarily bears a heavy burden in opposing the plaintiff’s chosen forum. When the plaintiff’s choice is not its home forum, however, the presumption in the plaintiff’s favor “applies with less force,” for the assumption that the chosen forum is appropriate is in such cases “less reasonable.” Piper Aircraft Co., 454 U. S., at 255-256. III Steel Co. v. Citizens for Better Environment, 523 U. S. 83 (1998), clarified that a federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction). See id., at 93-102. “Without jurisdiction the court cannot proceed at all in any cause”; it may not assume jurisdiction for the purpose of deciding the merits of the case. Id., at 94 (quoting Ex parte McCardle, 7 Wall. 506, 514 (1869)). While Steel Co. confirmed that jurisdictional questions ordinarily must precede merits determinations in dispositional order, Ruhrgas held that there is no mandatory “sequencing of jurisdictional issues.” 526 U. S., at 584. In appropriate circumstances, Ruhrgas decided, a court may dismiss for lack of personal jurisdiction without first establishing subject-matter jurisdiction. See id., at 578. Both Steel Co. and Ruhrgas recognized that a federal court has leeway “to choose among threshold grounds for denying audience to a case on the merits.” Ruhrgas, 526 U. S., at 585; Steel Co., 523 U. S., at 100-101, n. 3. Dismissal short of reaching the merits means that the court will not “proceed at all” to an adjudication of the cause. Thus, a district court declining to adjudicate state-law claims on discretionary grounds need not first determine whether those claims fall within its pendent jurisdiction. See Moor v. County of Alameda, 411 U. S. 693, 715-716 (1973). Nor must a federal court decide whether the parties present an Article III case or controversy before abstaining under Younger v. Harris, 401 U. S. 37 (1971). See Ellis v. Dyson, 421 U. S. 426, 433-434 (1975). A dismissal under Totten v. United States, 92 U. S. 105 (1876) (prohibiting suits against the Government based on covert espionage agreements), we recently observed, also “represents the sort of ‘threshold question’ [that] . . . may be resolved before addressing jurisdiction.” Tenet v. Doe, 544 U. S. 1, 7, n. 4 (2005). The principle underlying these decisions was well stated by the Seventh Circuit: “[J]urisdietion is vital only if the court proposes to issue a judgment on the merits.” Intec USA, 467 F. 3d, at 1041. IV A forum non conveniens dismissal “den[ies] audience to a case on the merits,” Ruhrgas, 526 U. S., at 585; it is a determination that the merits should be adjudicated elsewhere. See American Dredging, 510 U. S., at 454; Chick Kam Choo v. Exxon Corp., 486 U. S. 140, 148 (1988). The Third Circuit recognized that forum non conveniens “is a non-merits ground for dismissal.” 436 F. 3d, at 359. Accord In re Papandreou, 139 F. 3d, at 255; Monde Re, 311 F. 3d, at 497-498. A district court therefore may dispose of an action by a forum non conveniens dismissal, bypassing questions of subject-matter and personal jurisdiction, when considerations of convenience, fairness, and judicial economy so warrant. As the Third Circuit observed, Van Cauwenberghe v. Biard, 486 U. S. 517, 527-530 (1988), does not call for a different conclusion. See 436 F. 3d, at 359-360. Biard presented the question whether a district court’s denial of a motion to dismiss on the ground oí forum non conveniens qualifies for immediate appeal under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949). Biard, 486 U. S., at 527. The Court held that a refusal to dismiss for forum non conveniens, an interlocutory order, does not fall within the circumscribed collateral order exception to the firm final judgment rule generally governing federal court proceedings. In that context, the Court observed that some factors relevant to forum non conveniens, notably what evidence will bear on the plaintiff’s claim or on defenses to the claim, “will substantially overlap factual and legal issues of the underlying dispute.” Id., at 529. That observation makes eminent sense when the question is whether an issue is so discrete from the merits as to justify departure from the rule that a party may not appeal until the district court has rendered a final judgment disassociating itself from the case. See Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978) (“To come within the ‘small class’ of decisions excepted from the final-judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.”). Biard’s point, however, does not carry over to the question here at issue. Of course a court may need to identify the claims presented and the evidence relevant to adjudicating those issues to intelligently rule on a forum non conveniens motion. But other threshold issues may similarly involve a brush with “factual and legal issues of the underlying dispute.” Biard, 486 U. S., at 529. For example, in ruling on the non-merits threshold question of personal jurisdiction, a court may be called upon to determine whether a defendant’s contacts with the forum relate to the claim advanced by the plaintiff. See, e. g., Ruhrgas, 526 U. S., at 581, n. 4 (noting that the District Court’s holding that it lacked personal jurisdiction rested on its conclusion “that Marathon had not shown that Ruhrgas pursued the alleged pattern of fraud and misrepresentation during the Houston meetings”). The critical point here, rendering a forum non conveniens determination a threshold, nonmerits issue in the relevant context, is simply this: Resolving a forum non conveniens motion does not entail any assumption by the court of substantive “law-declaring power.” See id., at 584-585 (quoting In re Papandreou, 139 F. 3d, at 255). Statements in this Court’s opinion in Gulf Oil Corp. v. Gilbert, 330 U. S. 501 (1947), account in large part for the Third Circuit’s conclusion that forum non conveniens can come into play only after a domestic court determines that it has jurisdiction over the cause and the parties and is a proper venue for the action. See 436 F. 3d, at 361-362. The Court said in Gulf Oil that “the doctrine oí forum non conveniens can never apply if there is absence of jurisdiction,” 330 U. S., at 504, and that “[i]n all cases in which . . . forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process,” id., at 506-507. Those statements from Gulf Oil, perhaps less than “felicitously” crafted, see Tr. of Oral Arg. 14, draw their meaning from the context in which they were embedded. The question presented in Gulf Oil was whether a court fully competent to adjudicate the case, i. e., one that plainly had jurisdiction over the cause and the parties and was a proper venue, could nevertheless dismiss the action under the forum non conveniens doctrine. The Court answered that question “yes.” As to the first statement — that “forum non conveniens can never apply if there is absence of jurisdiction” — it is of course true that once a court determines that jurisdiction is lacking, it can proceed no further and must dismiss the case on that account. In that scenario “forum non conveniens can never apply.” The second statement — that forum non conveniens “presupposes at least two forums” with authority to adjudicate the case — was made in response to the Gulf Oil plaintiff’s argument to this effect: Because the federal forum chosen by the plaintiff possessed jurisdiction and venue was proper, the court was obliged to adjudicate the case. See 330 U. S., at 504 (explaining that a court’s statutory empowerment to entertain a suit “does not settle the question whether it must do so”). Notably, in speaking of what the forum non conveniens doctrine “presupposes,” the Court said nothing that would negate a court’s authority to presume, rather than dis-positively decide, the propriety of the forum in which the plaintiff filed suit. In sum, Gulf Oil did not present the question we here address: whether a federal court can dismiss under the forum non conveniens doctrine before definitively ascertaining its own jurisdiction. Confining the statements we have quoted to the setting in which they were made, we find in Gulf Oil no hindrance to the decision we reach today. ITie Third Circuit expressed the further concern that a court failing first to establish its jurisdiction could not condition a forum non conveniens dismissal on the defendant’s waiver of any statute of limitations defense or objection to the foreign forum’s jurisdiction. Unable so to condition a dismissal, the Court of Appeals feared, a court could not shield the plaintiff against a foreign tribunal’s refusal to entertain the suit. 436 F. 3d, at 363, and n. 21. Accord In re Papandreou, 139 F. 3d, at 256, n. 6. Here, however, Malaysia International faces no genuine risk that the more convenient forum will not take up the case. Proceedings to resolve the parties’ dispute áre underway in China, with Sinochem as the plaintiff. Jurisdiction of the Guangzhou Admiralty Court has been raised, determined, and affirmed on appeal. We therefore need not decide whether a court conditioning a forum non conveniens dismissal on the waiver of jurisdictional or limitations defenses in the foreign forum must first determine its own authority to adjudicate the case. V This is a textbook case for immediate forum non conveniens dismissal. The District Court’s subject-matter jurisdiction presented an issue of first impression in the Third Circuit, see 436 F. 3d, at 355, and was considered at some length by the courts below. Discovery concerning personal jurisdiction would have burdened Sinochem with expense and delay. And all to scant purpose: The District Court inevitably would dismiss the case without reaching the merits, given its well-considered forum non conveniens appraisal. Judicial economy is disserved by continuing litigation in the Eastern District of Pennsylvania given the proceedings long launched in China. And the gravamen of Malaysia International’s complaint — misrepresentations to the Guangzhou Admiralty Court in the course of securing arrest of the vessel in China — is an issue best left for determination by the Chinese courts. If, however, a court can readily determine that it lacks jurisdiction over the cause or the defendant, the proper course would be to dismiss on that ground. In the mine run of cases, jurisdiction “will involve no arduous inquiry” and both judicial economy and the consideration ordinarily accorded the plaintiff’s choice of forum “should impel the federal court to dispose of [those] issue[s] first.” Ruhrgas, 526 U. S., at 587-588. But where subject-matter or personal jurisdiction is difficult to determine, and forum non conveniens considerations weigh heavily in favor of dismissal, the court properly takes the less burdensome course. For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. 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_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. TOLENTINO v. NEW YORK No. 09-11556. Argued March 21, 2011 — Decided March 29, 2011 Kristina Schwarz argued the cause for petitioner. With her on the briefs were Steven Banks, Andrew C. Fine, Lawrence T Hausman, and Richard Joselson. Caitlin J. Halligan argued the cause for respondent. With her on the brief were Cyrus R. Vance, Jr., Hilary Hassler, Alan B. Gadlin, Eleanor J. Ostrow, and Allen J. Vickey. Pratik A. Shah argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Katyal, Assistant Attorney General Breuer, Deputy Solicitor General Dreeben, and Scott A. C. Meisler Marc Rotenberg filed a brief for the Electronic Privacy Information Center et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the State of Massachusetts et al. by Martha Coakley, Attorney General of Massachusetts, and Randall E. Ravitz, Assistant Attorney General, by William H. Ryan, Jr., Acting Attorney General of Pennsylvania, and by the Attorneys General for their respective States as follows: Luther Strange of Alabama, John J. Burns of Alaska, John Suthers of Colorado, Joseph R. Biden III of Delaware, Pamela Jo Bondi of Florida, David M. Louie of Hawaii, Lawrence G. Wasden of Idaho, Gregory F. Zoeller of Indiana, James D. “Buddy” Caldwell of Louisiana, Douglas F. Gansler of Maryland, Chris Roster of Missouri, Steve Bullock of Montana, Jon Bruning of Nebraska, Catherine Cortez Masto of Nevada, Paula T. Dow of New Jersey, Gary K. King of New Mexico, E. Scott Pruitt of Oklahoma, Alan Wilson of South Carolina, Marty J Jackley of South Dakota, Greg Abbott of Texas, Mark L. Shurtleff of Utah, Kenneth T. Cuccineüi II of Virginia, J. B. Van Bollen of Wisconsin, and Bruce A. Salzburg of Wyoming; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the New York State Association of Chiefs of Police, Inc., et al. by Meir Feder. Per Curiam. The writ of certiorari is dismissed as improvidently granted. It is so ordered. 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_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". COVELL v. DISTRICT OF COLUMBIA. No. 6578. United States Court of Appeals for the District of Columbia. Argued March 4, 1936. Decided April 6, 1936. Tracy L. Jeffords and Edwin C. Dutton, both of Washington, D. C., for appellant. E. Barrett Prettyman and Chester H. Gray, both of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices. VAN ORSDEL, Associate Justice. This suit was brought in the Supreme Court of the Distinct of-Columbia by appellant, plaintiff below, against the District of Columbia for damages for injuries claimed to have been sustained as the result of a fall on a sidewalk which it was alleged was maintained in a dangerous and poorly lighted condition. At the conclusion of the evidence the trial court directed a verdict in favor of the District. From the judgment thereon, this appeal was taken. In her declaration, plaintiff alleged that she sustained injuries by reason of the negligence of the defendant in “allowing dirt, stone, pebbles and gravel to accumulate” on the “street and sidewalk known as Holmead Place between Monroe Street and Otis Place, Northwest, in the District of Columbia.” The District is then charged with notice of the dangerous condition of the sidewalk caused by the accumulation of pebbles and gravel thereon. Defendant filed a motion to require plaintiff to locate with more certainty the place at which she claimed to have fallen. As a result of that motion, a stipulation was entered into between counsel for plaintiff and counsel for defendant which fixed the exact location of the place where the plaintiff was thrown as on “the east side of Holmead Place between- Newton and Meridian Streets, N. W., nearly in front of premises numbered 3433 Plolmead Place, N. W., in the District of Columbia.” The motion for a directed verdict was sustained upon the ground that the evidence disclosed that plaintiff fell, not on the sidewalk, as alleged in her declaration, but on the tree space or parking between the sidewalk and the curb of the street. This tree space was shown to be 9.10 feet in width. The only witnesses as to the point where the plaintiff fell were the plaintiff herself and her daughter, who accompanied her at the time of the accident. Both witnesses testified positively that plaintiff fell on the cement sidewalk. It was argued that this evidence was discredited by the testimony of the plaintiff that after she stepped up on the curb from the street she had taken but. one or two steps when she fell, and that she must have fallen on the parking instead of on the sidewalk. If she did, this was claimed to constitute a fatal variance. While it is true that the plaintiff became somewhat confused in her cross-examination as to exactly how far she proceeded after stepping up on the curb, and as to whether or not there was any parking between the sidewalk and the curb of the street, her testimony and that of her daughter is positive that she fell on the cement sidewalk. In view of this confusion in the testimony, the case was one for the jury, and it was error to direct a verdict for the defendant when there existed an issue of fact so clearly calling for the determination of the jury. Many cases are cited by counsel for defendant wherein questions similar to that involved in the present case were decided, and great reliance is placed upon the case of District of Columbia v. Donaldson, 38 App.D.C. 259. In that case, however, there was no conflict in the testimony as to where the accident occurred. It was charged to have occurred on the sidewalk, due to a defect therein, whereas the uncontradicted evidence disclosed that it occurred on a path leading from the sidewalk across the parking to the street. There was no conflict in the evidence as in the present case. It is unnecessary to consider at length the question of notice. The contention of the District is that the accident occurred on the parking and that the averments of the declaration failed to charge any defect therein. The declaration, however, does clearly charge that the District negligently permitted the accumulation of dirt, stone, pebbles, and gravel on the sidewalk, and that the accident was caused as the result of this accumulation. There was sufficient evidence, of at least constructive notice, to the District of the condition of the sidewalk to justify the submission of the issue of negligence to the jury; and in view of tlie testimony that the accident occurred upon the sidewalk where this condition existed, the case should have been submitted to the jury on the issues of fact. The judgment is reversed, with costs. 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_decisiontype

B

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. ALBANESE v. N. V. NEDERL. AMERIK STOOMV. MAATS. et al. No. 523. Decided December 13, 1965. Philip F. DiCostanzo and Robert Klonsky for petitioner in No. 523. Sidney A. Schwartz and Joseph Arthur Cohen for petitioner in No. 557. Edmund F. Lamb for respondent N. V. Nederl. Amerik Stoomv. Maats. in Nos. 523 and 557 and for petitioner in No. 654. Arthur J. Mandell for the American Trial Lawyers Association Admiralty Section, as amicus curiae, in support of the petition in No. 523. Together with No. 557, International Terminal Operating Co., Inc. v. N. V. Nederl. Amerik Stoomv. Maats.; and No. 654, N. V. Nederl. Amerik Stoomv. Maats. v. Albanese et al., also on petitions for writs of certiorari to the same court. Per Curiam. The motion of the American Trial Lawyers Association for leave to file a brief, as amicus curiae, is granted. The petition for certiorari in No. 523, Albanese v. N. V. Nederl. Amerik Stoomv. Maats., is also granted. We believe that the judgment of the Court of Appeals setting aside the judgment for petitioner Albanese on the ground that the trial court incorrectly charged the jury on the issue of negligence is erroneous. Gutierrez v. Waterman S. S. Corp., 373 U. S. 206. In its opinion the Court of Appeals also stated that the District Court incorrectly instructed the jury as to the applicability of the Safety and Health Regulations for Longshoring on the question of the shipowner’s liability. But we do not read that court’s opinion as making this an independent ground for ordering a new trial. So we not only reverse the judgment of the Court of Appeals in the case of Albanese but reinstate the District Court’s judgment in his favor. The petitions in No. 557, International Terminal Operating Co. v. N. V. Nederl. Amerik Stoomv. Maats.; and No. 654, N. V. Nederl. Amerik Stoomv. Maats. v. Albanese, are denied. It is so ordered. 29 CFR §9.1 et seg. (1963), now 29 CFR § 1504.1 (1965), promulgated by the Secretary of Labor under the authority of Public Law 85-742, 72 Stat. 835, 33 U. S. C. §941 (1964 ed.). Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:

songer_respond1_3_3

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 concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "A" thru "E"". Your task is to determine which specific federal government agency best describes this litigant. CENTER FOR AUTO SAFETY, et al., Petitioners, v. Lee M. THOMAS, Administrator, Environmental Protection Agency, et al., Respondents, Automobile Importers of America, Inc., Ford Motor Company, et al., Intervenors. No. 85-1515. United States Court of Appeals, District of Columbia Circuit. Sept. 16, 1988. Roger J. Marzulla, Asst. Atty. Gen., and Peter R. Steenland, Jr., Anne S. Almy and Michael A. McCord, Attys., U.S. Dept, of Justice, and Lawrence J. Jensen, Acting Gen. Counsel, and Nancy A. Ketcham-Col-will, Atty., U.S. E.P.A., Washington, D.C., were on petition for limited rehearing and suggestion for rehearing en banc for respondents. Cornish F. Hitchcock, Alan B. Morrison and William B. Schultz, Washington, D.C., were on response of petitioners. Edward W. Warren, Arthur F. Sampson, III, John G. Mullan, Washington, D.C., and Thomas L. Arnett, Detroit, Mich, (for General Motors Corp.), and Charles H. Lockwood, II, Detroit, Mich, (for Auto. Importers of America, Inc.), were on Intervenors’ petition for limited rehearing with suggestion for rehearing en banc. Before WALD, Chief Judge, and ROBINSON, MIKVA, EDWARDS, RUTH BADER GINSBURG, STARR, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG and SENTELLE, Circuit Judges. Opinion PER CURIAM. ON PETITIONS FOR LIMITED REHEARING PER CURIAM: The Environmental Protection Agency (the “Agency”), respondent in the original proceeding, and representatives of the automotive industry intervening on behalf of the Agency have petitioned for a limited rehearing of the judgment of the en banc court set out at 847 F.2d 843 (D.C.Cir.1988). In the per curiam opinion accompanying that judgment, the court stated that although its members were evenly divided as to the existence of Article III standing on the original petitioners’ part, we would reinstate the panel decision in which standing had been found and a disposition made on the merits. This action was taken in light of the fact that there was no district court opinion and the agency itself had no cause to pass on the Article III standing issue. We ruled, however, that the reinstatement of the panel opinion was to have no prece-dential effect in future cases as to standing. After consideration of the arguments set forth in the petitions for rehearing submitted by the Agency and intervenors and in original petitioners’ reply thereto, we have decided that our original disposition was not an appropriate one. We now hold that as a majority of the en banc court was unable to satisfy itself that the court had jurisdiction, the court should not have taken any affirmative action on the merits, including reinstatement of the panel opinion. Accordingly, we now vacate the opinion and judgment of May 17, 1988, and deny the original petition for review, leaving the Agency decision in effect. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "A" thru "E"". Which specific federal government agency best describes this litigant? A. Benefits Review Board B. Civil Aeronautics Board C. Civil Service Commission (U.S.) D. Commodity Futures Trading Commission E. Consumer Products Safety Commission F. Copyright Royalty Tribunal G. Drug Enforcement Agency H. Environmental Protection Agency I. Equal Employment Opportunity Commission Answer:

songer_procedur

D

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. Vernon M. ELLIS, Plaintiff-Appellant, v. Elliott L. RICHARDSON, Secretary of Health, Education & Welfare, Defendant-Appellee. No. 72-2952 Summary Calendar. United States Court of Appeals, Fifth Circuit. Jan. 4, 1973. H. H. Gearinger, Chattanooga, Tenn., for plaintiff-appellant. John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., Kathryn Baldwin, Eric B. Chaikin, Dept. of Justice, Washington, D. C., for defendant-appellee. Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges. Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409. PER CURIAM: Appellant instituted this action in the district court seeking to review a denial of social security disability benefits. The district court issued an order of dismissal which was timely followed by appellant's Rule 59 motion to reconsider. Such motion was denied. Appellant filed another motion to reconsider under Rule 59 based upon substantially the same grounds as urged in the earlier motion. The second motion was likewise denied. Pursuant to Federal Rules of Appellate Procedure 4(a), appellant had sixty days from the entry of the order of dismissal to file a notice of appeal. The filing of the first Rule 59 motion terminated the running of the time for the appeal, but the second such motion based upon the same grounds did not. In this case appellant had sixty days from the denial of his first Rule 59 motion in which to file notice of appeal. Having failed to do so, we are therefore without jurisdiction to consider the merits of his claim and accordingly this appeal is hereby dismissed. . Fed.R.Civ.P. 59. 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_geniss

B

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. 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". Daryl Jay TALBOT, Appellant, v. James R. SCHLESINGER, Secretary of Defense, Department of Defense, et al., Appellees. No. 75-1132. United States Court of Appeals, Fourth Circuit. Argued Aug. 21, 1975. Decided Oct. 2, 1975. Seymour M. Teach, Norfolk, Va., for appellant. Edward R. Baird, Jr., Asst. U. S. Atty., and William B. Cummings, U. S. Atty. (on brief), for appellee. Before HAYNSWORTH, Chief Judge, and WINTER and CRAVEN, Circuit Judges. PER CURIAM: Daryl J. Talbot sought a writ of habeas corpus to obtain his release from the United States Navy for an alleged breach of his contract of enlistment. He alleged and testified that, as a former Marine and a skilled illustrator with a college degree in art education, he enlisted in the Navy as an Illustrative-Draftsman third class under the Direct Petty Officer Procurement Program on the understanding that he would be assigned to the same work in the Navy as he was performing in civilian life. The enlistment contract contained a disclaimer of promises and guarantees, but Talbot testified that he was led to believe that they applied only to his choice of geographic duty assignment. After enlistment, Talbot testified that his assignments, including one to the Amphibious Museum at the Little Creek Amphibious Base in Norfolk, Virginia, where his duties consisted of janitorial upkeep of the building, giving guided tours and mowing the lawn, were not within the understandings that he reached, and, for breach of contract, he was entitled to be released from service. The district court denied the writ on the grounds that Talbot was bound by the disclaimer which he signed and, in any event, the court was not to review his specific assignment'. We conclude that Talbot’s appeal is moot and should be dismissed. While at the time of trial Talbot was assigned to Amphibious Museum, we were told in argument, and the facts have been verified subsequent thereto, that Talbot has been reassigned to another berth. His commanding officer states that Talbot is used “as a draftsman in a drafting shop,” that he is doing “illustration drafting, art work for briefings, artistic concepts of various equipment and maps and charts,” that he is doing essentially what a civilian commercial “illustrator draftsman” would be doing, and that he is performing well and will receive an excellent evaluation. A post-argument written statement from Talbot largely corroborates this advice, although he complains that his duties are not sufficiently challenging to his artistic skills and his full artistic talents which were employed in civilian life are rarely employed in the Navy. Since it appears that in the main, Talbot’s alleged contractual understandings have been fulfilled, we think nothing remains to be decided even if it is assumed that we are free to apply common law principles of contract law to a contract of enlistment. Talbot is assigned and functioning as an Illustrative-Draftsman. We decline to review each work assignment that he receives within that classification. Appeal dismissed. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:

songer_respond1_5_3

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 "state government (includes territories & commonwealths)", specifically "bureaucracy providing services". Your task is to determine which specific state government agency best describes this litigant. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant at No. 87-3727, v. STATE OF DELAWARE DEPARTMENT OF HEALTH AND SOCIAL SERVICES, John A. Dillman, III, Director of State Personnel; Dwayne Olsen, Controller General, and Steven Golding, Budget Director. Appeal of STATE OF DELAWARE DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Marcilee A. Bierlein, Director of State Personnel; Donald C. Dryden, Controller General, and Scott R. Douglass, Budget Director, Appellants at No. 87-3748. Nos. 87-3727, 87-3748. United States Court of Appeals, Third Circuit. Argued June 3, 1988. Decided Jan. 13, 1989. Charles A. Shanor, General Counsel, Gwendolyn Young Reams, Associate General Counsel, Lorraine C. Davis, Asst. General Counsel, Dianna B. Johnston, Maria Beatrice Valdez (argued), Anne B. Thomas, Attys., E.E.O.C., Washington, D.C., for E.E.O.C. Regina M. Mullen, Susan H. Kirk-Ryan (argued), Deputy Attys. Gen., Delaware Dept, of Justice, Wilmington, Del., for State of Del. Dept, of Health and Social Services, Marcilee A. Bierlein, Director of State Personnel; Donald C. Dryden, Con-trailer General, and Scott R. Douglass, Budget Director. Before SEITZ, SLOVITER and HUTCHINSON, Circuit Judges. OPINION OF THE COURT HUTCHINSON, Circuit Judge. In this action under the Equal Pay Act, 29 U.S.C.A. § 206(d) (West 1978) (the Act), judgment was entered on a jury’s verdict that appellees, the Delaware Department of Health and Social Services (DHSS) and Delaware’s Director of State Personnel, had violated the Act and that their violation was willful. The district court subsequently granted appellees’ motion for judgment notwithstanding the verdict and conditionally granted their motion for a new trial. For the reasons which follow, we will reverse the order of the district court and direct it to reinstate the judgment entered on the six-member jury’s verdict of a willful violation. I. During the relevant time period, DHSS recognized three levels of Public Health Nurses (PHNs) and Physician’s Assistants (PAs). Pursuant to the statewide classification system then employed, PHNs I, II and III were compensated at pay grades 21, 22 and 28, while PAs I, II and III were compensated at pay grades 20, 22 and 24. In April, 1980, Donald Bloom, an employee at the Kent County Health Clinic (Clinic), was reclassified from PA II to PA III. As a result of his reclassification, Bloom was more highly paid than every PHN working at the Clinic, who were all female. Evidence at trial indicated that Bloom and the PHNs performed many of the same functions, but that PHNs had additional duties related to patient care and lab work which Bloom did not share. Some of the claimants also had various substantive or administrative functions beyond those required of Bloom or the PHN Is. Soon after Bloom’s promotion, the PHNs complained to their superiors that they were being paid less than he was for performing the same work. In March or April, 1981, they filed discrimination charges with the Equal Employment Opportunity Commission (EEOC). The EEOC notified DHSS of the charges in January, 1982 and of the possibility of Equal Pay Act violations on June 7, 1982. Pursuant to a DHSS audit completed in September, 1982, but made retroactive to July 1, 1982, PHNs and PAs were regraded. PHNs I, II and III were assigned pay grades 22, 23 and 24. PAs I and II were merged into PA I at a pay grade of 22 and PA Ills remained at pay grade 24. Bloom was reclassified as a PA I and his pay grade reduced from 24 to 22. The EEOC treated this as bringing appellees in compliance with the Act’s requirements as of July 1, 1982. On June 28, 1983, the EEOC instituted suit in the United States District Court for the District of Delaware. The EEOC asserted that appellees had willfully violated the Act by paying female PHNs less than Bloom for performing equal work and sought compensatory damages. Since a willful violation is subject to a three year statute of limitations, the EEOC sought recovery from June 29, 1980 to July 1, 1982, the date the wage disparity was eliminated. Trial commenced on December 1, 1986 before a six-person jury and two alternates. One juror was dismissed during the trial and replaced with an alternate. Immediately prior to charging the jury, the court initiated the following dialogue: THE COURT: Before we bring the jury in, we have one alternate left. Alice mentioned that two of the jurors are not feeling too well today. I, in the past, if the attorneys are agreeable, have permitted the alternate to stay and deliberate with the jury. I would not do it if there was any objection, and when I’ve done it, I mentioned ahead of time, and I didn’t today, but in view of the fact that we have two jurors who don’t feel well, do the attorneys have any feeling about permitting the alternate to remain and deliberate with the jury? MS. FLOWERS: Plaintiff does not. THE COURT: You have no objection? MS. FLOWERS: No objection. MS. MULLEN: Defendants have no objection, Your Honor. THE COURT: Okay, fine. I think, then, I will permit the alternate to remain and deliberate with the jury, and if by chance, one of the jurors becomes ill and cannot stay through the entire deliberations, we will still have a six-member jury left. Joint Appendix (Jt.App.) at 605-06. When these seven returned after their deliberations, the foreperson announced that the jury had reached a verdict finding that the appellees had violated the Act and had done so willfully. Id. at 619-20. A poll of the jury, however, revealed that the alternate had not been considered a voting member. Id. at 621. Upon questioning by the court, this individual agreed with the finding of an Equal Pay Act violation but not with the finding of willfulness. Id. at 622. The court entered judgment in accordance with the verdict announced by the foreperson and appellees moved for judgment notwithstanding the verdict or, in the alternative, a new trial. Since, in seeking a directed verdict, they argued only that they had proven the pay disparity was based on a “factor other than sex,” an affirmative defense specifically set forth in the Act, the district court refused to consider their post-trial attacks on the EEOC’s prima facie case in deciding the judgment n.o.v. motion. It agreed with appellees, however, that the evidence of DHSS’s job classification system compelled the conclusion that the pay disparity was based on a “factor other than sex,” thereby overcoming the EEOC’s pri-ma facie case and relieving appellees of any liability. The district court, as required by Federal Rule of Civil Procedure 50(c), also conditionally ruled on the new trial motion. Because it felt that appellees’ evidence on the affirmative defense overcame the prima facie case, the court concluded that the jury’s verdict was against the weight of the evidence. Relying on a Department of Labor regulation, the court also held that a finding for the EEOC on its prima facie case with respect to ten PHNs could not be sustained. Accordingly, it also granted a new trial for all claimants on this ground, reasoning that since the jury’s error “is likely to have affected the verdict of all thirteen of the PHNs, the interests of justice require that the new trial include all thirteen PHNs.” Delaware Dep’t of Health and Social Servs., 667 F.Supp. at 1068. On the issue of willfulness, the court determined that a new trial was warranted for two additional reasons. First, it held that the evidence at most demonstrated that appellees were negligent in not foreseeing the violations. Second, the court ruled that the jury consisted of seven voting members. Since the seven were not unanimous on whether appellees’ violation was willful, the court found that there was no valid verdict on this point. II. We first address, sua sponte, the question of our appellate jurisdiction. The jury was not asked to determine damages and no damages were specified when judgment was entered. Had appellees immediately appealed from that judgment instead of moving for judgment n.o.v. or a new trial, we would ordinarily be required to dismiss the appeal. An order which establishes liability without fixing the amount of recovery is generally not final. Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 743-44, 96 S.Ct. 1202, 1206, 47 L.Ed.2d 435 (1976). Here, however, the district court’s ruling on appellees’ post-trial motions resulted in entry of judgment in their favor. Moreover, the question of damages was not submitted to the jury for resolution, but was deferred for further proceedings. Where the jury was not to determine damages, we see no reason for holding that the district court’s failure to take steps to specify the extent of appellees’ liability, after concluding such liability did not exist as a matter of law, deprives its order of finality. This situation is not materially different from that which results when a district court grants a defendant’s motion for judgment n.o.v. after a plaintiff’s verdict in the liability phase of a bifurcated trial before the damages phase is begun. Such orders are routinely treated as appealable. See, e.g., Collins v. Illinois, 830 F.2d 692, 706 (7th Cir.1987) (reversing in part and remanding for determination of damages on Title VII retaliation claim); Thomas v. Bakery, Confectionery and Tobacco Workers Union Local # 433, 826 F.2d 755, 764 (8th Cir.1987) (reversing in part and remanding for determination of damages resulting from breach of collective bargaining agreement and duty of fair representation), cert. denied, — U.S. -, 108 S.Ct. 1019, 98 L.Ed.2d 984 (1988). This appeal is proper, and we turn to the merits. In doing so, we first set forth the standards governing our review. A ruling on a judgment n.o.v. motion is subject to plenary review. Aloe Coal Co. v. Clark Equipment Co., 816 F.2d 110, 113 (3d Cir.), cert. denied, — U.S. -, 108 S.Ct. 156, 98 L.Ed.2d 111 (1987). We review a decision to grant a new trial based on the weight of the evidence for an abuse of discretion, but we “must ensure that the trial court has not simply substituted its judgment of the facts and the credibility of the witnesses for those of the jury; in other words, the new trial must be necessary to avoid a miscarriage of justice.” Shanno v. Magee Indus. Enterprises, Inc., 856 F.2d 562, 567 (3d Cir.1988) (citations omitted). The validity of the Department of Labor regulation, which the district court relied upon as one ground for the grant of a new trial, presents a question of law and our review is therefore plenary. Link v. Mercedes-Benz of North America, 788 F.2d 918, 921 (3d Cir.1986). Finally, the question of whether the parties have reached an agreement to vary a jury’s normal size is a legal question subject to plenary review. III. With these general observations in mind, we first consider whether the entry of judgment n.o.v. for DHSS was proper. An Equal Pay Act case involves shifting burdens. A plaintiff establishes a pri- ma facie case by showing that employees of opposite sex were paid differently for performing “equal work”; that is, work of substantially equal skill, effort and responsibility, under similar working conditions. See Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974); Brobst v. Columbus Servs. Int'l, 824 F.2d 271, 274 (3d Cir.1987), cert. denied, _ U.S. _, 108 S.Ct. 777, 98 L.Ed.2d 863 (1988). The burden of persuasion then shifts to the employer to demonstrate the applicability of one of the four affirmative defenses specified in the Act. Corning Glass, 417 U.S. at 196, 94 S.Ct. at 2229; Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136 (5th Cir.1983). The district court, in granting appellees’ motion for judgment n.o.v., found that DHSS’s classification system was based on a “factor other than sex.” 29 U.S.C.A. § 206(d)(1)(iv). Since the appellees bore the burden of proof on this issue, their motion was properly granted only if the record shows that they established the defense so clearly that no rational jury could have found to the contrary. See Fireman’s Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1177 (3d Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977); Arkwright Mut. Ins. Co. v. Philadelphia Elec. Co., 427 F.2d 1273, 1275 (3d Cir.1970). In making this determination, we must view the evidence most favorably to the EEOC and accord it the benefit of all justifiable inferences. Bhaya v. Westinghouse Elec. Corp., 832 F.2d 258, 259 (3d Cir.1987), cert. denied, _ U.S. _, 109 S.Ct. 782, 102 L.Ed.2d 774 (1988); Aloe Coal, 816 F.2d at 113. As evidence of DHSS’s job classification system, appellees presented the testimony of John Dillman, Delaware Director of State Personnel. According to Dillman, the state employed a system developed by Hay & Associates: It’s a system by which you look at the various aspects of the job and what it takes in terms of knowledge, skills and abilities in order to perform a job. By doing this, it can break all jobs into factors which are common to each of those positions. It then assigns a value, or a weight, to the various factors, and what is required of the various factors, and the level of education, the level of experience, the level of expertise, that type of thing. It then assigns a weight to the value of all these factors combined and compares that value to, of course, finding [sic] point on a pay scale. Jt.App. at 485. ' William Steele, a state personnel officer responsible for the compensation and classification systems, also explained the system: Jobs are looked at using three anchors. The knowledge that is required in order to perform the job; the knowledge— know-how is the term that they use — and it is any type of knowledge you have to have when you come into the job in order to qualify for the position. The know-how is broken down into three sections: the required knowledge, any education and/or experience that is required in order to do the job, any management or supervisory skills that are required in order to do the job and any human relations factors that might be involved in the job. The second factor is the problem-solving that is required in the position. What kind of problems do you have? How much independent thinking do you have to have in order to do the work? And the third factor is the accountability, how much accountability does a person have to accomplish the function of the job, and what impact does that job have on the State as a whole? Id. at 596-97. Steele then testified that his office classified PHNs I and II on July 13, 1977, assigning a point total of 256 and a pay grade of 20 to the former position, and a point total of 314 and a pay grade of 22 to the latter. Id. at 597-99. Finally, even the EEOC’s expert witness on job classification, Dr. George Hagglund, stated that job classification systems which assign points to various aspects of a job are common in the public sector. Id. at 69-70. This evidence is sufficient to permit a jury to find that DHSS employed a recognized, facially neutral classification system. The district court, however, after finding that appellees had produced sufficient evidence to show that DHSS used such a system, required the EEOC to show that it was applied in a gender-biased manner. The only evidence of discriminatory application to which the district court refers was Bloom’s reclassification within four months of his request while the PHNs’ collective reclassification took approximately two years. The court held that the routine reclassification of one individual as opposed to a “regrading” of the PHN position, was a legitimate explanation for this difference which EEOC had not refuted. It concluded that “[b]ald speculation that the State was applying its facially neutral classification system in a sex-biased manner is not sufficient to support a verdict. ...” Delaware Dep’t of Health and Social Servs., 667 F.Supp. at 1064. This reasoning misperceives the nature of an Equal Pay Act case. The appellees had the burden of persuasion, not merely the burden of production, on their affirmative defense. On their judgment n.o.v. motion, the correct inquiry was not whether the EEOC introduced evidence that the apparently neutral classification system was misapplied, but whether, viewing the evidence most favorably to the EEOC, a jury could only conclude that the pay discrepancy resulted from operation of the system. Under this standard, the grant of judgment n.o.v. cannot be sustained. While appellees offered some evidence of the principles generally used in classifying positions, they did not demonstrate how the system operated with respect to the particular positions at issue. Thus, they made no effort to explain how the point totals for PHNs and PAs were assigned or to otherwise justify the discrepancy in pay grades. Instead, they merely produced testimony that the PHNs I and II were classified in July, 1977 and introduced into evidence the evaluation sheets prepared at that time. There was no evidence of the manner in which the PAs were classified and the only evaluations of those positions presented to the jury were from the reclassification which occurred in 1982. In the absence of further evidence, the jury lacked a fujl basis for comparing the evaluations of the PHNs and PAs during the relevant time period or for relating the procedures used in the reclassification to the method used in first setting up the Hay system. Therefore, a rational jury could remain unpersuaded. Cf. Maxwell, 803 F.2d at 447 (compliance with civil service requirements, without more, insufficient to establish affirmative defense of “merit system”); Marshall v. Kent State Univ., 589 F.2d 255, 255-56 (6th Cir.1978) (per curiam) (same). Similarly, a rational jury may have legitimately questioned whether Bloom was properly classified as a PA III. William Greve, DHSS’s Personnel Administrator, testified that Bloom’s promotion was justified because he was to function more independently, Jt.App. at 502-03, and a memorandum from Dr. George Bender, the PHNs' Health Officer, stated that Bloom had “more responsibility for' independent decision making.” Id. at 729. Bender’s memorandum further stated that Bloom was functioning as a “team leader,” and that although one PHN II also had this responsibility they were supervised at different levels. Id. Yet, there was no attempt to show that Bloom actually performed the duties in the PA III job description, and Bloom admitted he did not perform all those duties. Id. at 281-82. Ap-pellees also failed to explain why Bloom was reclassified under the new system as a PA I in September, 1982, retroactive to July 1, 1982. These deficiencies must be viewed in light of the EEOC’s proof that Bloom and the PHNs did the same work. Given this evidence, the jury was free to disbelieve appellees’ assertion that the pay disparity resulted from the neutral application of the classification system. Accordingly, judgment was improperly entered in favor of appellees. IV. Relying on the same reasoning which led it to grant judgment n,o.v., the district court concluded that appellees were entitled to a new trial because the jury’s finding that they had not established their affirmative defense was against the weight of the evidence. Its holding on this point appears to be inseparable from its erroneous view that the EEOC was required to show that the classification system was not neutrally applied. That the EEOC did not make such a showing cannot be grounds for a new trial. To the extent the district court’s opinion may be construed as a comment on the weight of the evidence under the correct legal standard, the court abused its discretion in granting a new trial on this theory. We find no basis in the record for concluding that the verdict was unjust. Shanno, 856 F.2d at 567. V. The district court instructed the jury in accordance with an administrative regulation which provides the following illustrations of “similar working conditions”: For example, if some sales persons are engaged in selling a product exclusively inside a store and others employed by the same establishment spend a large part of their time selling the same product away from the establishment, the working conditions would be dissimilar. Also, where some employees do repair work exclusively inside a shop while others employed by the shop spend most of their time doing similar work in customers’ homes, there would not be similarity in working conditions. On the other hand, slight or inconsequential differences in working conditions that, are essentially similar would not justify a differential in pay. 29 C.F.R. § 800.132 (1986). The court found this regulation applicable in the instant case since ten of the thirteen PHNs performed at least half of their duties at the patients’ homes while Bloom worked exclusively at the clinic. It concluded that the jury’s finding that those ten PHNs and Bloom performed their duties under similar working conditions was against the great weight of the evidence and that the interests of justice warranted a new trial on the remaining three PHNs’ claims as well. Delaware Dep’t of Health and Social Servs., 667 F.Supp. at 1067-68. Although the Act does not empower the Department of Labor to promulgate binding regulations, the above provision “should be given deference unless inconsistent with the statute.” Angelo v. Bacharach Instrument Co., 555 F.2d 1164, 1171 n. 10 (3d Cir.1977). In Corning Glass, the United States Supreme Court recognized the background against which the Act was adopted. Thus, it observed, Congress used terms which “incorporate[d] into the new federal Act the well-defined and well-accepted principles of job evaluation so as to ensure that wage differentials based upon bona fide job evaluation plans would be outside the purview of the Act.” Corning Glass, 417 U.S. at 201, 94 S.Ct. at 2231. Applying this principle to the statutory phrase “working conditions,” the Court stated: [Tjhe element of working conditions encompasses two subfactors: “surroundings” and “hazards.” “Surroundings” measures the elements, such as toxic chemicals or fumes, regularly encountered by a worker, their intensity, and their frequency. “Hazards” takes into account the physical hazards regularly encountered, their frequency, and the severity of injury they can cause. This definition of “working conditions” is not only manifested in Coming’s own job evaluation plans but is also well accepted across a wide range of American industry. Id. at 202, 94 S.Ct. at 2232 (footnotes omitted). To the extent the regulation conflicts with the Supreme Court’s construction of the statute, it is without effect. Here, the EEOC’s expert testified that he considered whether Bloom and the PHNs worked under similar working conditions by reference to the factors used by employers in setting wages, which coincide with the elements identified in Corning Glass. The examples in the regulation do not appear to be grounded in these concerns. Indeed, they were deleted in August 1986 when the Department of Labor issued revised regulations to reflect the Supreme Court’s interpretation of working conditions in Corning Glass. See 51 Fed.Reg. 29,816, 29,818 (1986); 29 C.F.R. § 1620.18 (1988). Under these circumstances, it was error to apply the cited examples, Wetzel v. Liberty Mutual Ins. Co., 449 F.Supp. 397, 405 (W.D.Pa.1978), and, given the testimony of the EEOC’s expert, the jury’s verdict clearly had substantial support in the record. Absent the regulation, there was no “basis in reason for [the district court’s] conclusions as to the weight of the evidence and the injustice of the verdict.” Shanno, 856 F.2d at 567 (quoting Lind v. Schenley Indus., 278 F.2d 79, 91 (3d Cir.) (in banc), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960)). Nor is there any merit to the court’s ruling that the jury either misconstrued or consciously disregarded the instructions. Jury instructions must be read as a whole. Link, 788 F.2d at 922; Walters v. Mintec/International, 758 F.2d 73, 76 (3d Cir.1985). After reciting the example from the regulation, the court proceeded to instruct the jury that, “On the other hand, slight or inconsequential differences in working conditions that are essentially similar would not justify a differential in pay. Such differences are not usually taken into consideration by employers or in selective [sic] bargaining in setting wage rates.” Jt.App. at 608. Thus, consistent with the instructions, the jury could properly have relied on Dr. Hagglund’s testimony in reaching its verdict. VI. The district court also granted a new trial on the issue of willfulness, concluding that the evidence was insufficient to support the jury’s verdict under our decision in Brock v. Richland Shoe Co., 799 F.2d 80 (3d Cir.1986), aff'd sub nom. McLaughlin v. Richland Shoe Co., — U.S. -, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988). There, we adopted the Supreme Court’s definition of “willfulness” as used in the Age Discrimination in Employment Act’s liquidated damages provision and held that the applicable test for purposes of the statute of limitations of the Fair Labor Standards Act (FLSA) was whether the employer knew or showed reckless disregard for whether its conduct violated the act. Id. at 83 (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985)). This position has now been endorsed by the Supreme Court. McLaughlin v. Richland Shoe Co., 108 S.Ct. at 1681. The district court recognized that memoranda setting forth the PHNs’ request were sent to the relevant state officials. Delaware Dep’t of Health and Social Servs., 667 F.Supp. at 1069-70. It noted, however, that neither these officials nor the PHNs considered the matter to be one of sex discrimination and determined that the evidence at most established negligence: Since there was no evidence that any state official actually knew there might be a problem with sex discrimination, the question presented to the jury basically became whether the state officials recklessly disregarded the potential EPA violation. Based on the evidence of what information the PHNs gave to the state personnel officials and of those officials’ familiarity with federal employment law, we can only conclude that none of the defendants recklessly disregarded the potential EPA violation. Nothing in the communications between the PHNs and the personnel officials indicate anything more than a simple failure to realize that sex discrimination could become an issue. We find from the evidence that the most that could reasonably be inferred is that the state officials were merely negligent in not foreseeing the potential sex discrimination involved in the PHNs’ request for a regrade. Id. at 1070. The EEOC asserts error, claiming that cases applying Thurston have “require[d] a showing that employers took some type of affirmative action to insure that their actions were not in violation of the law before they can prevail on the ‘willfulness’ issue” and that DHSS did not take such steps. Brief for Appellant at 40-41. Stated so broadly, the argument cannot survive Richland Shoe. In approving the Thur-ston formulation for use in cases under the FLSA, the Supreme Court rejected the Secretary of Labor’s proposed standard “that would deem an FLSA violation willful if the employer, recognizing it might be covered by the FLSA, acted without a reasonable basis for believing that it was complying with the statute.” Richland Shoe, 108 S.Ct. at 1682 (quoting petitioner’s brief). The Secretary’s approach, the Court reasoned, would “permit a finding of willfulness to be based on nothing more than negligence, or, perhaps, on a completely good-faith but incorrect assumption that a pay plan complied with the FLSA in all respects.” Id. Thus, the Court noted: If an employer acts reasonably in determining its legal obligation, its action cannot be deemed willful under either petitioner’s test or under the standard we set forth. If an employer acts unreasonably, but not recklessly, in determining its legal obligation, then, although its action would be considered willful under petitioner’s test, it should not be so considered under Thurston or the identical standard we approve today. Id. at 1682 n. 13. Accordingly, the failure to determine whether a challenged pay practice violates the Act must be tested against the Thurston and Richland Shoe standards and is not itself necessarily sufficient to support a finding of willfulness. The EEOC also maintains that, given the PHNs’ request for “equal pay for equal work,” appellees’ conduct rises to the requisite level. Dillman testified that he “probably dismissed” the use of this phrase since it “means something to me as a personnel analyst, from a legal standpoint, but I don’t know that it would have meant the same thing to a supervisor of employees who was concerned that her employees were not paid a high enough salary.” Jt.App. at 489. On the other hand, he stated, a complaint of sex discrimination would have prompted him to think in terms of a legal problem and would have distinguished the PHNs’ complaint from the numerous reclassification requests. Id. at 490. The EEOC contends that since DHSS officials knew the PHNs were female and Bloom was male, Dillman must have strongly suspected a violation of the Act when he saw the phrase “equal pay for equal work,” Brief for Appellant at 38, and that his testimony reveals that appellees “consciously chose to ignore a potential EPA violation and apparently counted on the nurses not recognizing that they had an EPA claim.” Reply Brief for Appellant at 12. The jury could have drawn the inference which the EEOC asserts is warranted— that Dillman, personnel director for the State of Delaware, must have entertained a strong suspicion of an Equal Pay Act violation which, with the most cursory investigation, would have led to actual knowledge. An experienced, responsible official cannot consciously turn his head and choose to ignore such information. If he does, his actions meet the standard of willfulness set forth in Richland Shoe. Accordingly, we cannot agree with the district court’s conclusion that the evidence at most permits an inference of negligence. In reaching this result, the court ostensibly relied on the state officials’ “familiarity with federal employment law,” Delaware Dep’t of Health and Social Servs., 667 F.Supp. at 1070, and reviewed the testimony of some state officials. However, it did not expressly address Dillman’s testimony. Regardless of whether the former officials acted willfully, a jury verdict of willfulness could be premised solely on Dillman’s actions and the record is sufficient to allow a jury to conclude that he acted willfully. Given the district court’s apparent failure to consider this possibility, we hold that it abused its discretion in granting a new trial. VII. Finally, the district court held that the parties had agreed to a seven-person jury. Since the alternate did not concur that ap-pellees’ violation of the Act was willful, the court determined that the verdict was not unanimous on willfulness and that a new trial was therefore required on this issue. This was error for the following reasons. Federal Rule of Civil Procedure 48 permits the parties to “stipulate that the jury shall consist of any number less than twelve.” The District of Delaware, however, has adopted a local rule providing for the trial of all civil actions by a jury of six, unless the parties stipulate to a lesser number. D.Del.R. 5.5(C) (1983). We need not decide whether the local rule prevents the district court from accepting a stipulation to a jury of more than six, nor whether such a construction of the rule would be valid. The rule establishes a standard jury size, allowing deviations only when the parties so stipulate. Upon review of the record, we are unable to say that these litigants reached an agreement to vary the usual number of six jurors. The parties expressed no objection to the district court’s suggestion of “permitting the alternate to remain and deliberate with the jury.” Jt.App. at 606 Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "bureaucracy providing services". Which specific state government agency best describes this litigant? A. Police B. Fire C. Taxation D. Human Services/Welfare/Health Care E. Streets and Highways F. Transportation G. Election processes H. Education I. Other Service Activity J. not ascertained Answer:

songer_r_natpr

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. BRAFFITH v. PEOPLE OF VIRGIN ISLANDS. Circuit Court of Appeals, Third Circuit December 10, 1928. No. 3881. D. H. Jackson, of Christiansted, St. Croix, Virgin Islands, for appellant. James C. Fox, of Christiansted, St. Croix, Virgin Islands, for the People. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. PER CURIAM. This appeal under the laws of the Virgin Islands is compulsory. Braffith v. People of Virgin Islands (C. C. A.) 26 F.(2d) 646. In view of the prisoner’s plea 'of guilty entered to a charge of murder in the first degree, our inquiry on this appeal has been directed, and limited, to a search for fundamental irregularities in the proceeding and to a possible abuse by the court of its discretion in determining the punishment. Braffith v. People of Virgin Islands, supra. On our review of the record, made with a care which the gravity of the case required, we found no errors of either kind. The judgment must therefore be affirmed. Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:

songer_direct1

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. 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 ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:

songer_usc1

35

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. KULESZA et al. v. AMERICAN CAR & FOUNDRY CO. et al. No. 7039. Circuit Court of Appeals, Seventh Circuit. Feb. 29, 1940. Rehearing Denied April 8, 1940. Harold O. Mulks, of Chicago, 111., for appellants. Samuel W. Banning and Ephraim Banning, both of Chicago, 111., for appellees. Before SPARKS, TREANOR, and KERNER, Circuit Judges. SPARKS, Circuit Judge. This action in equity was instituted by appellants on October 4, 1929. They alleged that they were all residents of Illinois, and were the equitable owners of United States Patent to Robinson, No. 886,-541. The patent issued on May 5, 1908. It expired in May, 1925, and Robinson died in December, 1925. Plaintiffs aver that they represent a class of 2,000 other joint equitable owners. They charge the American Car and Foundry Company with infringement of the patent, and demand an accounting for profits and damages resulting therefrom. The bill makes many others parties defendant, including the widow, as administratrix, of the patentee, and alleges that the defendants, aside from the Company, are claiming an unfounded title or interest adverse to that of plaintiffs, and they ask that plaintiffs' title be declared valid and that they be awarded damages for infringement. The defendants, other than the Company, "answered, alleging valid adverse interests, and admitting their residence' to be in Illinois. However, they agree with plaintiffs that the Company has infringed the patent, and .they all urge that the question of infringement be first adjudicated, and that the many conflicting interests of alleged title owners be subsequently determined. On motion of the American Car and Foundry Company, the court dismissed, the bill of complaint for want of jurisdiction, holding that plaintiffs lacked title to the patent, and were without power or capacity to maintain a suit for infringement. From this decree this appeal is prosecuted. It is clear that if the court’s ruling was sound with respect to the question of who may bring suit for infringement, the issue with respect to the adverse title between plaintiffs and the claiming defendants could not proceed because there was a lack of diverse citizenship of the parties. The questions here presented were before us in Kulesza v. Blair, 7 Cir., 70 F.2d 505, where the nature of appellants’ alleged title is fully set forth, and we decided them adversely to appellants’ contentions here. True, some evidence was taken in that case, but the allegations here are the equivalent of the facts presented there, and they constitute no basis for establishing title sufficient to maintain the suit within the purview of Sections 4919 and 4898 of the Revised Statutes, 35 U.S.C.A. §§ 67, 47. The decree here is affirmed on the authority of the Kulesza case, supra. 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_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. E. A. ADRIAENSSENS, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee. Marie EPPERSON, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee. Nos. 5790, 5791. United States Court of Appeals Tenth Circuit. Aug. 11, 1958. H.G. Bill Dickey, Tulsa Okl. (S. Joe Richard Tulsa, Okl., was with him on the brief), for appellants. Thomas R. Brett, Tulsa, Okl. (Robert D. Hudson, Tulsa, Okl., was on tne brief), for appellee. Before BRATTON, Chief Judge, and MURRAH and BREITENSTEIN, Circuit Judges BRATTON, Chief Judge. E. A. Adriaenssens and Marie Epperson, father and daughter, each instituted in the state court in Oklahoma an action against L. R. Phillips for the recovery-of damages for personal injury sustained in a traffic accident. Phillips died during the pendency of the actions and they were revived in the name of the administrator of his estate. Judgment for , , . , , plaintiff was entered m each case. About % , , ... ... five years later, Adriaenssens and his . , , ... ,, , daughter instituted m the state court ,. ,. . . . . T these actions against Allstate Insurance ® , Company, a corporation organized under ,. f ’ T,.fi . the laws of Illinois, to recover upon a .. , policy ot liability insurance issued to t.. .... . , . , „ . ,, Phillips m which the insurer obligated . , „ itselt to pay on behalf of the insured all .f, . , . , ,, sums within specified limits which the . . , ,, , insured should become obligated to pay , , ^ as. damages because of bodily injury sustamed by any P““n causedby acclde+nt arismg out 0±' *he ^rship, “amte?ance’ or use of hl^ ftomobde The actions were removed to the United States Court upon the ground of diversity of citizenship with the requisite amount in controversy. One defense interposed in each case was fraud in the procurement 0f the policy. Specifically, it was pleaded that in the application for the policy, Phillips falsely represented that his driver’s license had never been revoked. The causes were consolidated for trial and were tried to the court without a jury. The court found among other things that the representation was made in the application for the policy; that it was untrue; that the driver’s license of the insured had been twice revoked because of drunken driving; that the representation was material; that it was relied upon by the insurer; and that the policy would not have been issued if the revocationg of ^ licenge had been discIosed. Judgment was entered in each case denyjng recovery upon the policy; separate appeals were perfected; and the causes were submitted in this court upon a single record. The jurisdiction of the court to entertain the actions on removal from the state court is challenged. Treating the actions as being merely supplemental proceedings in the nature of garnishment for the collection of the judgments rendered in the state court, it is argued that they were not subject to removal. A like contention was advanced in London & Lancashire Indemnity Co. of America, v. Courtney, 10 Cir., 106 F.2d 277. There the holder of an unpaid judgment rendered in a state court in Oklahoma caused to be issued and served a writ of garnishment against a foreign corporation for the purpose of subjecting to the payment of the judgment the obligation of the garnishee under its policy of indemnity protection. The garnishee caused the proceeding to be removed upon the ground of diversity of citizenship with the requisite amount in controversy. The removability of the proceeding was challenged by motion to remand. ^ It was held in terms too clear for misunderstanding that the proceeding was in ef-feet an original and independent action, and that diversity of citizenship with the requisite sum in controversy being present, the proceeding was removable. ^ In like manner, these actions were original and independent actions between the holders of the judgments and the insurer. The issue between the parties was whether the insurer was liable under its policy issued^ to one who made a false representation of a material nature in order to obtain the coverage. And, being original and independent actions of that kind with diversity of citizenship and the requisite sum in controversy, they were open to removal. London & Lancashire Indemnity Co. of America v. Courtney, supra. The further contention advanced . ,, , , , „ is that under an applicable statute of Oklahoma, 47 O.S.1951 § 521(f), upon ,, ’ ... , * the occurrence of the traffic accident with resulting injury to appellants, the liability of the appellee upon its outstanding policy of insurance became absolute and could not thereafter be defeated upon the ground of fraud in the application, But the provision in the statute fixing absolute liability under a motor vehicle liability policy is limited to insurance eoverage furnished pursuant to a requirement to furnish proof of financial responsibility in compliance with 47 O.S. 1951 §§ 519, 520. United States Fidelity & Guaranty Co. v. Walker, Okl., 329 P.2d 852. There is no suggestion that the insured had ever been required to furnish proof of financial responsibility or that the policy issued to him had ever been certified under section 519 or 520; and therefore the provision contained in section 521(f) fixing absolute liability is without application, The substance 0f another conten£jon advanced is that since the application for the insurance was not attached to the Ucy it was not admissible in evidence and the insurer could not rely upon it for any purpose. Reliance is pIaced upon 36 0.S.1951 § 808 to sustain the contention. The statute was in force a^ £be time of the accident but has since been repealed. Section 9, page 238, Laws 0£ t955, O.S.1955 Supp. 300. The statute Provided in presently pertinent part that every policy of insurance provided for by Act should be issued upon the signed application of the person or pergons S0Ught to be insured; and that unjess a correct and complete copy of the application was attached to or endorsed on poijCy when delivered, the contents 0£ the application, or any part thereof, should not be admitted in evidence on be-ha.lf of the insurer for any purpose. The section of the statute was part of the chapter relating to accident and health insurance. Section 801 of such chap-j.er expressly limited the chapter to polic¡es 0f insurance against loss or expense from sickness, or from bodily injury or death by accident. And therefore a poli- „ , . .. „ cy of automobile liability insurance of ,, , . . . , ,, ... , ... the land involved here did not come with- ... „ ,. orio m the purview of section 808. Appellants invoke the doctrine of estoppel to prevent the appellee from relying upon fraud or misrepresentation in the application for the insurance. One ground of estoppel urged is that the appellee had constructive knowledge of the information available to it through the Department of Public Safety of Oklahoma; that a cheek of the record of the applicant for the insurance could and should have been made with such department, particularly in view of the statement contained in the application that the applicant had been arrested for a traffic violation; and that failure to malte such investigation estops appellee, The duty to investigate where notice of a fact or facts indicate misrepresentation is a relative one depending upon the par-tieular situation. But, absent exceptional or unusual circumstances, an insurer engaged in the business of issuing automobile liability insurance is not required in every case under peril of estoppel to make inquiry at the proper state agency with respect to official records throwing light upon the truth or falsity of the representation in the application that the driver’s license of the applicant has never been revoked. And the statement m t e application that the applicant had been fined $10.00 for running a red light, together with the further word of explanation that the light changed on him, did not require the insurer under pain of estoppel to make inquiry at the state agency or elsewhere as to whether the license of the insured had been revoked, The plea of estoppel upon the ground of failure to investigate was not well founded. Two other grounds of estoppel urged may be considered together. One is that a representative of the appellee secured repair estimates upon the automobile of appellants which was involved in the traffic accident and authorized the making of the repairs but later declined to pay the charge and appellants were thus required to pay it. And the other is that attorneys for appellee filed on behalf of the insured an answer in each of the two original cases in the state court and continued to act as attorneys for the insured for awhile after learning the facts with respect to the misrepresentatation in the application for the insuranee. Estoppels are equitable in nature, And it is essential to the appropriate application of the doctrine of equitable estoppel that the party against whom the plea is directed acted or failed to act with knowledge of the facts, or that he was in such position that he should have known them. Davies v. Lahann, 10 Cir., 145 F.2d 656; Chisholm v. House, 10 Cir., 183 F.2d 698. There was no showing here that at the time the repair estimates were obtained, at the time the making of the repairs was authorized, or at the time the answers were filed on behalf of the insured, appellee knew or was in such position that it should have known of the misrepresentation in the application for the insurance. Instead, it is a fair inference from the record as a whole that all of such acts took place before appellee learned or was in such position that it reasonably should have learned that the application contained the misrepresentation. And the attorneyg witMrew as attorneys for the insured months before entry of the judgments in the original cases. Accordingly; the asserted grounds of estop-pd are without solid footing. Finally, complaint is made that the court erroneously placed upon appellants the burden of proof respecting the issue of fraud in the application for the policy of insurance. It is argued that the court in effect required appellants to prove that there was no fraud on the part of the insured. Of course, the burden rested upon the appellee to establish by evidence its affirmative defense of fraud on the part of the insured. Recognizing SUch burden, the appellee introduced in evidence the application signed by the ingured and containing the representation that his driver’s license had never been revoked. Appellant introduced in evidence official records showing that on two separate occasions the driver’s liCense of the insured had been revoked upon the ground of drunken driving, And jt was stipulated that if a repregentative of appellee from its office in Kansas City, Missouri, were present he would testify that he was familiar with the policies of the company in respect to issuing insurance to persons whose driver’s license had been revoked; that determining whether to issue a policy, appellant relied upon the representations contained in the application; and that the policy in question would not have been issued if the appellant had known of the revocations of the license issued to the insured. That evidence — considered in its entirety — was sufficient to establish a prima facie case of fraud on the part of the insured in obtaining the issuance of the policy. The court did not place upon appellants the burden of proof respecting the issue of fraud. Instead, the court merely determined that appellee introduced evidence establishing a prima facie ease of fraud which was not met or overcome by persuasive countervailing evidence. The judgments are severally 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_district

H

What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". URQUHART et al. v. AMERICAN-LA FRANCE FOAMITE CORPORATION. No. 8645. United States Court of Appeals District of Columbia. Argued May 9, 1944. Decided Aug. 7, 1944. Writ of Certiorari Denied Dec. 4, 1944. See 65 S.Ct. 273. Mr. J. Matthews Neale, of Washington, D. C., with whom Mr. William A. Strauch, of Washington, D. C., was on the brief, for appellants. Mr. Oscar W. Jeffery, of New York City, with whom Messrs. Harry G. Kimball and Richard K. Stevens, both of Washington, D. C., were on the brief, for appellee. Before MILLER, EDGERTON, and ARNOLD, Associate Justices. ARNOLD, Associate Justice. Plaintiffs brought this action in the District of Columbia against the defendant, a non-resident corporation, for the infringement of two patents. The sole question involved in this appeal is whether the District Court had jurisdiction. Section 48 of the Judicial Code, 28 U.S.C.A. § 109, has been held by the Supreme Court to be the only statute which confers jurisdiction over a non-resident in an infringement suit. The statute reads as follows: “In suits brought for the infringement of letters patent the district courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or corporation, shall have committed acts of infringement and have a regular and established place of business. If such suit is brought in a district of which the defendant is not an inhabitant, but in which such defendant has a regular and established place of business, service of process, summons, or subpoena upon the defendant may be made by service upon the agent or agents engaged in conducting such business in the district in which suit is brought.” The defendant moved to dismiss the complaint and to quash service on the ground that (1) it had no established place of business in the District within the meaning of the above statute, and (2) no infringing acts occurred in the District. The court found for the defendant on both grounds and dismissed the complaint. From this order the plaintiffs appeal. The following facts appear in the record bearing on the question whether the defendant had an established place of business in the District of Columbia: Defendant is a New York corporation. It maintains an office in the District. Its name is displayed on the door and listed in the telephone directory. The office force consists of a manager, a stenographer and two salesmen. The salesmen not only take orders for the defendant’s products in the District but also in neighboring states. The return on the summons shows that service of process was had on the manager of the office. On the basis of these facts we believe that the court erred in finding that the defendant did not have an established place of business in the District of Columbia. Used in its ordinary sense the term certainly includes the defendant’s establishment; indeed, it would be difficult to imagine what other term could be applied to it since the office is permanent and the employment and activities substantial. The case on which the court below relies in concluding that the defendant did not have an established place of business is Tyler Co. v. Ludlow-Saylor Wire Co. It was there held that a non-resident corporation which shared an agent with another corporation did not have such an establishment within the meaning of the statute. But these are not the facts here. Recent cases have upheld jurisdiction in a patent infringement suit against defendants maintaining a permanent office coupled with substantial business activity. The second ground on which the order dismissing the action is based is that no act of infringement occurred in the District. This finding is based on affidavits. The court refused plaintiffs permission to take depositions for the purpose of disproving the allegations of defendant’s affidavits on the theory that Rule 26(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c permits discovery only after jurisdiction has been obtained. Therefore, depositions may not be taken in order to support a jurisdictional allegation. We believe that such an interpretation of Rule 26(a) is error. In many cases it would in effect make it impossible for a plaintiff to obtain counter-evidence against the defendants’ affidavits. The correct interpretation as we see it is found in Moore’s Federal Practice as follows: “Where the defendant serves in advance of answer a motion to dismiss under Rule 12(b), such as a foreign corporation moving to dismiss on the ground of the insufficiency of service of process, it would seem that the court should ordinarily grant leave to the plaintiff to take depositions on the issues of fact, if any, raised by the motion, such as matters relating to the question whether the foreign corporation is doing business in the state, and whether the person served is an agent of the corporation who is authorized to receive service of process under Rule 4(d) (3), (7).” The above quotation has been approved in the case of Jiffy Lubricator Co. v. Alemite Co. We recognize that the court has discretion under Rule 43(e) to decide on affidavits alone such a motion to dismiss as the one we are considering here. However, the court did not exercise its discretion in this case and in view of the terms of the affidavits it is likely that permission would have been granted to take depositions had the court thought it had power to do so. The record discloses, however, a preliminary question on which there should be a hearing and a finding before the court exercises its discretion on the request for depositions. It appears that plaintiffs are residents of Pennsylvania, maintaining no place of business in the District. The principal place of business of the defendant is in New York. No reason is disclosed by the plaintiffs why the suit should be brought in the District of Columbia, an apparently inconvenient forum for both parties. It is settled that district courts having jurisdiction by virtue of a federal statute have discretion to withhold the exercise of the jurisdiction conferred upon them where the parties are non-residents and where there is no want of another suitable forum. The reason for that discretion is to protect the courts against the abuse of the opportunity of non-residents to resort to their jurisdiction in the enforcement of claims against citizens of other states. As one writer has said: “Upon what has come to be known as the doctrine of forum non conveniens, some courts have, without resort to statute, refused to entertain jurisdiction in cases involving certain causes of actions when suit is between non-residents or aliens. The reasons for refusal vary considerably. They include unwillingness to extend local judicial facilities to non-residents or aliens when the docket may already be overcrowded; the belief that the non-resident plaintiff sought the forum to secure procedural advantages or to annoy the defendant, and the belief that the matter can be better tried elsewhere.” In determining whether the court should withhold exercise of jurisdiction in this case considerations such as the convenience of the parties, the existence of an adequate remedy at the residence of the defendant, the availability of witnesses and testimony, should govern. The order will be reversed and the cause remanded (1) for the court to determine whether it should retain jurisdiction over this case applying the principle of forum non conveniens, and (2) for the court to determine, in the exercise of its discretion, whether to take depositions, in the event the first issue is resolved in plaintiffs’ favor. Reversed and remanded. Stonite Products Co. v. Melvin Lloyd Co., 1942, 315 U.S. 561, 563, 62 S.Ct. 780, 86 L.Ed. 1026. 1915, 236 U.S. 723, 35 S.Ct. 458, 59 L.Ed. 808. Shelton v. Schwartz, 7 Cir., 1942, 131 F.2d 805, 808: “Nor should the term ‘a regular and established place of business’ be narrowed or limited in its construction. * * * A foreign corporation may have a regular and established place of business, although the business therein is merely securing orders and forwarding them to the home office of the nonresident corporation. To hold otherwise would be contrary to the factual information which is possessed by all and which must be attributed to Congress.” See also James P. Marsh Corp. v. United States Gauge Co., 7 Cir., 1942, 129 F.2d 161; Remington Rand Business Service, Inc., v. Acme Card System Co., 4 Cir., 1934, 71 F.2d 628. Cf. Phillips v. Baker, 9 Cir., 1941, 121 F.2d 752, certiorari denied 1941, 314 U.S. 688, 62 S.Ct. 301, 86 L.Ed. 551. But see Elevator Supplies Co. v. Wagner Mfg. Co., D.C.S.D.N.Y.1931, 54 F.2d 937, affirmed, 2 Cir., 1931, 54 F.2d 939. Moore’s Federal Practice (1938) 2467, 2468. D.C.N.D.1939, 28 F.Supp. 385. See also Watters v. Ralston Coal Co., D.C.M.D.Pa.1938, 25 F.Supp. 387. Contra: Fox v. House, D.C.E.D.Okl.1939, 29 F.Supp. 673. Commonwealth of Massachusetts v. Missouri, 1939, 308 U.S. 1, 19, 60 S.Ct. 39, 84 L.Ed. 3; Rogers v. Guaranty-Trust Co., 1933, 288 U.S. 123, 130, 131, 53 S.Ct. 295, 77 L.Ed. 652, 89 A.L.R. 720; Canada Malting Co. v. Paterson Steamships, Ltd., 1932, 285 U.S. 413, 418 and 423, 52 S.Ct. 413, 76 L.Ed. 837. Cf. Curley v. Curley, 1941, 74 App.D.C. 163, 120 F.2d 730; Melvin v. Melvin, 1942, 76 U.S.App.D.C. 56, 129 F.2d 39. Stumberg, Conflict of Laws (1937) 150. The confusion which has resulted from the increased interstate activity of corporations and the efforts of the courts to find some definite criteria for guidance has led one writer to conclude: “For certain purposes, hard and fast mechanical rules eventually become unsuitable and inadequate. Insofar as our present problem is concerned, it is obvious that the complexity of new situations must progressively increase. There is only one sufficiently elastic method of assuring adjustment and that is by reposing the determination of the border-line situations in the discretion of the court.” Dainow, The Inappropriate Forum (1935) 29 Ill.L.Rev. 867, 870. For collection of authorities ' see Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law (1929) 29 Col.L.Rev. 1; Foster, Place of Trial in Civil Actions (1930) 43 Harv.L.Rev. 1217, and Place of Trial — Interstate Application of Intrastate Methods of Adjustment (1930) 44 Id. 41. 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_method

I

What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc. HALLENBECK v. LEIMERT. No. 5185. Circuit Court of Appeals, Seventh Circuit. June 30, 1934. Rehearing Denied Sept. 28, 1934. Carroll J: Lord and Russell F. Locke, both of Chicago, 111., for appellant. Daniel M. Healy, of Chicago, 111., for appellee. Before ALSCHULER, SPARKS, and FITZIIENRY, Circuit Judges. FITZHENRY, Circuit Judge. Appellant is the receiver of the South Ashland National Bank and appellee the receiver of the Central Manufacturing District Bank. For convenience, the two banks will hereafter be referred to as the Ashland Bank and the Central Bank. The action was brought by the receiver of the Central Bank to recover moneys procured by the Ashland Bank by depositing for collection five cheeks aggregating $13,733. A jury was waived, and the trial court made findings of fact and conclusions of law and entered judgment against the defendant for $14,884.56, from which this appeal was taken. No bill of exceptions was signed, and we are therefore limited on this appeal to the question of whether the findings of fact, which were made a part of the record, justify the judgment. The trial court found that one James E. Hodgkinson was, during- March and April, 1932, a vice president of Hodgkinson & Durfee, Inc., and also vice president, a director, and owner of one-fourfch of the stock, of the Ashland Bank. Hodgkinson & Durfee had an account at the Central Bank. On March 26, 1932, Hodgkinson drew four cheeks of the corporation, aggregating $12,183.92, on the Central Bank, payable to the order of the Ashland Bank, and delivered them to the Ash-land Bank on the same day. On April 23, 1932, Hodgkinson drew an additional check of the corporation upon the Central Bank for $1,550, payable to himself, and on the same day he indorsed and delivered the check to the Ashland Bank. The four checks of March 26, 1932, were carried on the hooks of the Ashland Bank as assets of the bank until Saturday, April 23, 1932, when three of them and the one dated April 23, 1932, were deposited in the Federal Reserve Bank of Chicago. The fifth check, for $2,600, dated March 26, 1932, was forwarded to the First National Bank of Chicago for collection. Early on Monday morning, April 25, 1932, the four checks sent to the Federal Reserve Bank for collection were turned in to the Chicago Clearing House Association by the Federal Reserve Bank. In accordance with the rules of the clearing house, the Central Bank, by its check, settled the balance due the clearing house, and received the checks in question deposited with the Federal" Reserve Bank of Chicago, about 11:30 a. m., from a messenger of the Chicago Clearing House Association. Some time early in the afternoon, but after the “ Clearing House” balance had been settled, the Central Bank learned that the payment of these checks would create an overdraft in the account of llodgkinson & Durfee. The check for $2,600 was never presented at the clearing house. The First National Bank, to which ifc was sent for collection by the Ashland Bank, carried an account of the Central Bank as well as the Ashland Bank. It charged the amount of this check to the Central Bank and credited it to the account of the Ashland Bank and sent the check out by messenger to the Central Bank some time after noon. As soon, as the Central Bank learned of the overdraft that would be caused in the corporation’s account if these five cheeks were paid, it notified Hodgkinson by telephone, and, at 9:30' o’clock the next morning, returned the checks to the Ashland Bank and demanded reimbursement. This was refused by the bank, which had received and kept the proceeds of the five cheeks. During’ this time, the Federal Reserve Bank of Chicago and the First National Bank of Chicago were members of the Chicago Clearing House Association, while the Central Bank was an affiliated member of the association. A rule of the Chicago Clearing House Association in force at that time reads: “In order that the member banks presenting such items may have an opportunity to give special instructions as to the protest of unpaid items, that notice of non-payment of any such items drawn on banks 4 ® ® which aro ® - ,i! affiliated with members of the association * “ * and which have their places of business located * * on 32th Street or south thereof, be given by telephone before two-thirty o’clock (2:30) P. M. of the same day to the member banks presenting- such items through the Clearing House. * * v Upon these facts the trial court found that the checks in question were not paid by tile Central Bank on April 23, 1932, and appellant assigns this as error. It is conceded by both parties that, if payment were ac-tually made by the bank on which the cheeks were drawn (in this case the Central Bank) or if, instead of actual payment, an unconditional credit had been given, then, though it were later discovered that there were insufficient funds on deposit in the account of the maker to cover the checks, the payment would be absolute and irrevocable. The fact that the Central Bank g’ave its check in settlement of the clearing house balance and that the four checks went to make up a portion of this balance, does not in itself constitute final and irrevocable payment. Neither did the exchange of credits on the books of the First National Bank constitute final and irrevocable payment by the Central Bank of the chocks there in question. Brady on Bank Checks (2d. Ed.) 502; Sneider v. Bank of Italy, 184 Cal. 595, 194 P. 1021, 32 A. L. R. 993; Columbia-K. Trust Co. v. Miller, 215 N. Y. 191, 109 N. E. 179, Ann. Cas. 1917A, 348; Hentz v. National City Bank, 159 App. Div. 743, 144 N. Y. S. 979. The method of transacting- business followed by the clearing house association contemplates, that the members will immediately examine the various items which go to make up the balance and only the subsequent lapse of time without-electing to dishonor the check causes the settlement to become final. In the case of members of the clearing house, the time within which notice must be given is fixed by agreement. In the ease of banks not members of the clearing house, the provisions of the Negotiable Instruments Law must govern as to what length of time may elapse before the tentative payment becomes final and irrevocable. Appellant argues that, since the Central Bank never returned the cheeks to the clearing house and made no attempt to hold the clearing house association, the Federal Reserve Bank, or the First National Bank accountable, the clearing house settlement became final upon the lapse of time fixed by the rules. We cannot agree with this position. The Ashland Bank was not a member of, or affiliated with, the clearing house association, and is vested with no rights based upon its rules. 1 Morse on Banks and Banking (6th Ed.) 810; National Exchange Bank v. Ginn & Co., 114 Md. 181, 78 A. 1026, 33 L. R. A. (N. S.) 963, Ann. Cas. 1914C, 508; Brady on Bank Checks (2d Ed.) 503; 8 Michie on Banks and Banking, 165. In this respect, the case is distinguishable from Preston v. Canadian Bank of Commerce (D. C.) 23 F. 179. The Central Bank having elected to recover from the Ashland Bank directly, all that was necessary to bring the giving of notice of dishonor within the provisions of the Negotiable Instruments Law was that notice be given “before the close of business hours on the day following.” Smith-Hurd Rev. St. Ill. 1933, c. 98, § 124, Cahill’s Ill. Rev. Stat. 1933, c. 98, par. 124. In the instant ease the checks were tendered back to the Ashland Bank and demand for reimbursement made when the bank opened on the day following. The District Court properly held that the checks in question were not paid by the Central Bank on April 23, 1932. The notice given by the Central Bank to the Ashland Bank was in compliance with the terms of the Negotiable Instruments Law and the Ashland Bank was properly held liable to reimburse the Central Bank for the amount of the cheeks. The judgment of the District Court is affirmed. Question: What is the nature of the proceeding in the court of appeals for this case? A. decided by panel for first time (no indication of re-hearing or remand) B. decided by panel after re-hearing (second time this case has been heard by this same panel) C. decided by panel after remand from Supreme Court D. decided by court en banc, after single panel decision E. decided by court en banc, after multiple panel decisions F. decided by court en banc, no prior panel decisions G. decided by panel after remand to lower court H. other I. not ascertained Answer:

songer_appel1_1_4

J

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant. BUNGE CORPORATION, Plaintiff-Appellant, v. The LONDON AND OVERSEAS INSURANCE CO. et al., Defendants-Appellees. The LONDON AND OVERSEAS INSURANCE CO. et al., Third-Party Plaintiffs-Appellants, v. Brooks BANKER, as Treasurer of American Express Company, Third-Party Defendant-Appellee. No. 354, Docket 32015. United States Court of Appeals Second Circuit. Argued March 19, 1968. Decided May 6, 1968. See also D.C., 267 F.Supp. 406. Philip C. Scott, New York City (Marc J. Luxemburg, Robert J. Paulus, and Dewey, Ballantine, Bushby, Palmer & Wood, New York City, on the brief), for Plaintiff-Appellant. William Warner, New York City (William Garth Symmers, Frederick Fish, and Symmers, Fish & Warner, New York City, on the brief), for Defendants-Appellees and Third-Party Plaintiffs-Appellants. Peter H. Kaminer, New York City (Edwin J. Wesely, George I. Gordon, and Winthrop, Stimson, Putnam & Roberts, New York City, on the brief), for Third-Party Defendant-Appellee. Before FRIENDLY and HAYS, Circuit Judges, and CLARIE, District Judge. Of the District Court for the District of Connecticut, sitting by designation. HAYS, Circuit Judge: Bunge Corporation was one of the holders of warehouse receipts on vegetable oil stored in the tanks of a warehousing subsidiary of the American Express Company. In late 1963 it was discovered that a massive fraud had been perpetrated by one Tino De An-gelis, president of a vegetable oil concern, and that there was little or no oil in the tanks. Bunge brought suit on a contract of insurance against the issuing underwriters (hereinafter referred to collectively as “Lloyd’s”) to recover its losses. Jurisdiction is based on diversity of citizenship. Lloyd’s denied liability under the contract but served a third-party complaint on the American Express Company. Thereafter, Bunge entered into a settlement with American Express and gave it a general release. American Express then moved for summary judgment dismissing the third-party complaint. The court below granted the motion on the ground that the release given American Express by Bunge was binding on Lloyd’s. However, in response to an oral motion by counsel for Lloyd’s, the court also granted summary judgment dismissing the complaint in the main action, the action of Bunge against Lloyd’s. The court ruled that Bunge’s release of American Express had the effect of relieving Lloyd’s of any obligation to Bunge under the insurance contract. We affirm as to dismissal of the third-party complaint, but reverse as to dismissal of Bunge’s action against Lloyd’s. I. An insurer who has not paid its insured’s claim has no right in claims which the insured has against third parties. See, e. g., Meredith v. The Ionian Trader, 279 F.2d 471, 474 (2d Cir., 1960); Glens Falls Ins. Co. v. Wood, 8 N.Y.2d 409, 412, 208 N.Y.S.2d 978, 979-980, 171 N.E.2d 321, (1960); American Surety Co. v. Palmer, 240 N.Y. 63, 67, 147 N.E. 359 (1925). Since Bunge has executed a release, its rights against American Express are extinguished; thus, even if Lloyd’s were now to pay Bunge in full, it would succeed to no rights against American Express. It follows that the third-party complaint was properly dismissed. Lloyds’ contention that our decision in St. Paul Fire & Marine Ins. Co. v. United States Lines Co., 258 F.2d 374 (2d Cir. 1958), cert. denied, 359 U.S. 910, 79 S.Ct. 587, 3 L.Ed.2d 574 (1959), requires a contrary result is without merit. The court there found that the purposes of Rule 14(a) of the Federal Rules of Civil Procedure — avoidance of a multiplicity of suits and inconsistent adjudications — would be furthered by interpreting the Rule to permit an insurance company which had not made payment to implead a third party. The court did not purport to change the law of subrogation as to the rights of nonpaying insurers against such third parties. II. It is well settled that, at least after a denial of liability by an insurer, the insured may enter into a settlement with a third party without prejudicing its rights against the insurer. See, e. g., Vanguard Ins. Co. v. Polchlopek, 18 N.Y.2d 376, 382, 275 N.Y.S.2d 515, 520, 222 N.E.2d 383 (1966); Cardinal v. State, 304 N.Y. 400, 410-411, 107 N.E.2d 569 (1952), cert. denied as not timely applied for, 345 U.S. 918, 73 S.Ct. 729, 97 L.Ed. 1351 (1953); In re People ex rel. Emmet (Empire State Surety Co.), 214 N.Y. 553, 563-564, 108 N.E. 825 (1915). To require that the insured first fully litigate its dispute with the insurer before pursuing the third party would be manifestly unfair. The possibility of prompt reimbursement would be lost. Moreover, because of the financial condition of the third party or the size of other claims pending against it, it might be essential that redress against the third party be promptly pursued lest nothing remain to satisfy insured’s claim. On the other hand, the self-interest on the insured affords considerable protection to the insurer under the present rule. Recognizing the possibility that his suit against the insurance company may fail, the insured will attempt to recoup as much of his losses as possible from the third party. If the insurer is ultimately held liable, the amount so recovered will inure to its benefit. Of course, it remains open to Lloyd’s to challenge the settlement on the ground that it was entered into in bad faith; certainly an insured cannot claim as losses such amounts as it could have recouped in a good faith settlement. The judgment is reversed as to dismissal of Bunge’s complaint against Lloyd’s and affirmed as to dismissal of the third-party complaint. . Popularly known as the “salad oil swindle.” Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant? A. auto industry B. chemical industry C. drug industry D. food industry E. oil & gas industry F. clothing & textile industry G. electronic industry H. alcohol and tobacco industry I. other J. unclear Answer:

sc_caseorigin

087

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. CLAPPER, DIRECTOR OF NATIONAL INTELLIGENCE, et al. v. AMNESTY INTERNATIONAL USA et al. No. 11-1025. Argued October 29, 2012 Decided February 26, 2013 Auto, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined, post, p. 422. Solicitor General Verrilli argued the cause for petitioners. With him on the briefs were Acting Assistant Attorney General Delery, Deputy Solicitor General Kneedler, Anthony A. Yang, Douglas N. Letter, Thomas M. Bondy, Henry C. Whitaker, Robert S. Litt, Trida S. Wellman, and Bradley A. Brooker. Jameel Jaffer argued the cause for respondents. With him on the brief were Steven R. Shapiro, Alexander A. Abdo, Arthur N. Eisenberg, Christopher T. Dunn, and Charles S. Sims. Richard A. Samp, Megan L. Brown, and Claire J. Evans filed a brief for John D. Ashcroft et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the Canadian Civil Liberties Association et al. by Carmine D. Boccuzzi and Michael R. Lazerwitz; for the Center for Constitutional Rights et al. by Shayana Kadidal; for the Constitutional Accountability Center by Douglas T. Kendall, Elizabeth B. Wydra, and Rochelle Bobrojf; for the Electronic Privacy Information Center et al. by Marc Rotenberg; for Former Church Committee Members and Staff by Sidney S. Rosdeitcher, Jonathan Hafetz, and Barbara Moses; for the Gun Owners Foundation et al. by William J. Olson, Herbert W. Titus, John S. Miles, Jeremiah L. Morgan, and Gary G. Kreep; for the National Association of Criminal Defense Lawyers by John D. Cline and Joshua L. Dratel; and for the Reporters Committee for Freedom of the Press by Bruce D. Brown and Gregg P. Leslie. Briefs of amici curiae were filed for the Committee on Civil Rights of the Association of the Bar of the City of New York by Peter T. Barbur and James G. Felakos; and for the New York State Bar Association by Seymour W. James, Jr., and Gregory L. Diskant. Justice Alito delivered the opinion of the Court. Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. § 1881a (2006 ed., Supp. V), allows the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons” and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s approval. Respondents are United States persons whose work, they allege, requires them to engage in sensitive international communications with individuals who they believe are likely targets of surveillance under § 1881a. Respondents seek a declaration that § 1881a is unconstitutional, as well as an injunction against § 1881a-authorized surveillance. The question before us is whether respondents have Article III standing to seek this prospective relief. Respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under § 1881a at some point in the future. But respondents’ theory of future injury is too speculative to satisfy the well-established requirement that threatened injury must be “certainly impending.” E. g., Whitmore v. Arkansas, 495 U. S. 149, 158 (1990). And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able to establish that this injury is fairly traceable to § 1881a. As an alternative argument, respondents contend that they are suffering present injury because the risk of § 1881a-authorized surveillance already has forced them to take costly and burdensome measures to protect the confidentiality of their international communications. But respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending. We therefore hold that respondents lack Article III standing. I A In 1978, after years of debate, Congress enacted the Foreign Intelligence Surveillance Act (FISA) to authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes. See 92 Stat. 1783, 50 U. S. C. § 1801 et seq.; 1 D. Kris & J. Wilson, National Security Investigations & Prosecutions §§3.1, 3.7 (2d ed. 2012) (hereinafter Kris & Wilson). In enacting FISA, Congress legislated against the backdrop of our decision in United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U. S. 297 (1972) (Keith), in which we explained that the standards and procedures that law enforcement officials must follow when conducting “surveillance of ‘ordinary crime’ ” might not be required in the context of surveillance conducted for domestic national-security purposes. Id., at 322-323. Although the Keith opinion expressly disclaimed any ruling “on the scope of the President’s surveillance power with respect to the activities of foreign powers,” id., at 308, it implicitly suggested that a special framework for foreign intelligence surveillance might be constitutionally permissible, see id., at 322-323. In constructing such a framework for foreign intelligence surveillance, Congress created two specialized courts. In FISA, Congress authorized judges of the Foreign Intelligence Surveillance Court (FISC) to approve electronic surveillance for foreign intelligence purposes if there is probable cause to believe that “the target of the electronic surveillance is a foreign power or an agent of a foreign power,” and that each of the specific “facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.” § 105(a)(3), 92 Stat. 1790; see §§ 105(b)(1)(A), (b)(1)(B), ibid.; 1 Kris & Wilson §7:2, at 194-195; id., § 16:2, at 528-529. Additionally, Congress vested the Foreign Intelligence Surveillance Court of Review with jurisdiction to review any denials by the FISC of applications for electronic surveillance. § 103(b), 92 Stat. 1788; 1 Kris & Wilson §5:7, at 151-153. In the wake of the September 11th attacks, President George W. Bush authorized the National Security Agency (NSA) to conduct warrantless wiretapping of telephone and e-mail communications where one party to the communication was located outside the United States and a participant in “the call was reasonably believed to be a member or agent of al Qaeda or an affiliated terrorist organization,” App. to Pet. for Cert. 403a. See id., at 263a-265a, 268a, 273a-279a, 292a-293a; American Civil Liberties Union v. NSA, 493 F. 3d 644, 648 (CA6 2007) (ACLU) (opinion of Batchelder, J.). In January 2007, the FISC issued orders authorizing the Government to target international communications into or out of the United States where there was probable cause to believe that one participant to the communication was a member or agent of al Qaeda or an associated terrorist organization. App. to Pet. for Cert. 3Í2a, 398a, 405a. These FISC orders subjected any electronic surveillance that was then occurring under the NSA’s program to the approval of the FISC. Id., at 405a; see id., at 312a, 404a. After a FISC Judge subsequently narrowed the FISC’s authorization of such surveillance, however, the Executive asked Congress to amend FISA so that it would provide the intelligence community with additional authority to meet the challenges of modern technology and international terrorism. Id., at 315a-318a, 331a-333a, 398a; see id., at 262a, 277a-279a, 287a. When Congress enacted the FISA Amendments Act of 2008 (FISA Amendments Act), 122 Stat. 2436, it left much of FISA intact, but it “established a new and independent source of intelligence collection authority, beyond that granted in traditional FISA.” 1 Kris & Wilson §9:11, at 349-360. As relevant here, § 702 of FISA, 50 U. S. C. § 1881a (2006 ed., Supp. V), which was enacted as part of the FISA Amendments Act, supplements pre-existing FISA authority by creating a new framework under which the Government may seek the FISC’s authorization of certain foreign intelligence surveillance targeting the communications of non-U. S. persons located abroad. Unlike traditional FISA surveillance, § 1881a does not require the Government to demonstrate probable cause that the target of the electronic surveillance is a foreign power or agent of a foreign power. Compare §§ 1805(a)(2)(A), (a)(2)(B), with §§ 1881a(d)(l), (i)(3)(A); 638 F. 3d 118, 126 (CA2 2011); 1 Kris & Wilson § 16:16, at 584. And, unlike traditional FISA, § 1881a does not require the Government to specify the nature and location of each of the particular facilities or places at which the electronic surveillance will occur. Compare §§ 1805(a)(2)(B), (c)(1) (2006 ed. and Supp. V) with §§ 1881a(d)(l), (g)(4), (i)(3)(A); 638 F. 3d, at 125-126; 1 Kris & Wilson §16:16, at 585. The present case involves a constitutional challenge to § 1881a. Surveillance under § 1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment. Section 1881a provides that, upon the issuance of an order from the FISC, “the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year ..., the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” § 1881a(a). Surveillance under § 1881a may not be intentionally targeted at any person known to be in the United States or any U. S. person reasonably believed to be located abroad. §§ 1881a(b)(l)-(3); see also §1801(i). Additionally, acquisitions under § 1881a must comport with the Fourth Amendment. § 1881a(b)(5). Moreover, surveillance under § 1881a is subject to congressional oversight and several types of Executive Branch review. See § § 1881a(f )(2), (0; Amnesty Int’l USA v. McConnell, 646 F. Supp. 2d 633, 640-641 (SDNY 2009). Section 1881a mandates that the Government obtain the FISC’s approval of “targeting” procedures, “minimization” procedures, and a governmental certification regarding proposed surveillance. §§ 1881a(a), (c)(1), (i)(2), (i)(3). Among other things, the Government’s certification must attest that (1) procedures are in place “that have been approved, have been submitted for approval, or will be submitted with the certification for approval by the [FISC] that are reasonably designed” to ensure that an acquisition is “limited to targeting persons reasonably believed to be located outside” the United States; (2) minimization procedures adequately restrict the acquisition, retention, and dissemination of nonpublic information about unconsenting U. S. persons, as appropriate; (3) guidelines have been adopted to ensure compliance with targeting limits and the Fourth Amendment; and (4) the procedures and guidelines referred to above comport with the Fourth Amendment. § 1881a(g)(2); see § 1801(h). The FISC’s role includes determining whether the Government’s certification contains the required elements. Additionally, the court assesses whether the targeting procedures are “reasonably designed” (1) to “ensure that an acquisition ... is limited to targeting persons reasonably believed to be located outside the United States” and (2) to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known . . . to be located in the United States.” § 1881a(i)(2)(B). The court analyzes whether the minimization procedures “meet the definition of minimization procedures under section 1801(h) . . . , as appropriate.” § 1881a(i)(2)(C). The court also assesses whether the targeting and minimization procedures are consistent with the statute and the Fourth Amendment. See § 1881a(i)(3)(A). B Respondents are attorneys and human rights, labor, legal, and media organizations whose work allegedly requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, sources, and other individuals located abroad. Respondents believe that some of the people with whom they exchange foreign intelligence information are likely targets of surveillance under § 1881a. Specifically, respondents claim that they communicate by telephone and e-mail with people the Government “believes or believed to be associated with terrorist organizations,” “people located in geographic areas that are a special focus” of the Government’s counterterrorism or diplomatic efforts, and activists who oppose governments that are supported by the United States Government. App. to Pet. for Cert. 399a. Respondents claim that § 1881a compromises their ability to locate witnesses, cultivate sources, obtain information, and communicate confidential information to their clients. Respondents also assert that they “have ceased engaging” in certain telephone and e-mail conversations. Id., at 400a. According to respondents, the threat of surveillance will compel them to travel abroad in order to have in-person conversations. In addition, respondents declare that they have undertaken “costly and burdensome measures” to protect the confidentiality of sensitive communications. Ibid. C On the day when the FISA Amendments Act was enacted, respondents filed this action seeking (1) a declaration that § 1881a, on its face, violates the Fourth Amendment, the First Amendment, Article III, and separation-of-powers principles and (2) a permanent injunction against the use of § 1881a. Respondents assért what they characterize as two separate theories of Article III standing. First, they claim that there is an objectively reasonable likelihood that their communications will be acquired under § 1881a at some point in the future, thus causing them injury. Second, respondents maintain that the risk of surveillance under § 1881a is so substantial that they have been forced to take costly and burdensome measures to protect the confidentiality of their international communications; in their view, the costs they have incurred constitute present injury that is fairly traceable to § 1881a. After both parties moved for summary judgment, the District Court held that respondents do not have standing. 646 F. Supp. 2d, at 636. On appeal, however, a panel of the Second Circuit reversed. The panel agreed with respondents’ argument that they have standing due to the objectively reasonable likelihood that their communications will be intercepted at some time in the future. 638 F. 3d, at 133, 134, 139. In addition, the panel held that respondents have established that they are suffering “present injuries in fact— economic and professional harms—stemming from a reasonable fear of future harmful government conduct.” Id., at 138. The Second Circuit denied rehearing en banc by an equally divided vote. 667 F. 3d 163 (2011). Because of the importance of the issue and the novel view of standing adopted by the Court of Appeals, we granted certiorari, 566 U. S. 1009 (2012), and we now II Article III of the Constitution limits federal courts’ jurisdiction to certain “Cases” and “Controversies.” As we have explained, “[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 341 (2006) (internal quotation marks omitted); Raines v. Byrd, 521 U. S. 811, 818 (1997) (internal quotation marks omitted); see, e. g., Summers v. Earth Island Institute, 555 U. S. 488, 492-493 (2009). “One element of the case-or-eontroversy requirement” is that plaintiffs “must establish that they have standing to sue.” Raines, supra, at 818; see also Summers, supra, at 492-493; DaimlerChrysler Corp., supra, at 342; Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992). The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches. Summers, supra, at 492-493; Daimler-Chrysler Corp., supra, at 341-342, 353; Raines, supra, at 818-820; Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 471-474 (1982); Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 221-222 (1974). In keeping with the purpose of this doctrine, “our standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines, supra, at 819-820; see Valley Forge Christian College, supra, at 473-474; Schlesinger, supra, at 221-222. “Relaxation of standing requirements is directly related to the expansion of judicial power,” United States v. Richardson, 418 U. S. 166, 188 (1974) (Powell, J., concurring); see also Summers, supra, at 492-493; Schlesinger, supra, at 222, and we have often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs, see, e. g., Richardson, supra, at 167-170 (plaintiff lacked standing to challenge the constitutionality of a statute permitting the Central Intelligence Agency to account for its expenditures solely on the certificate of the CIA Director); Schlesinger, supra, at 209-211 (plaintiffs lacked standing to challenge the Armed Forces Reserve membership of Members of Congress); Laird v. Tatum, 408 U. S. 1, 11-16 (1972) (plaintiffs lacked standing to challenge an Army intelligence-gathering program). To establish Article III standing, an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U. S. 139, 149 (2010); see also Summers, supra, at 493; Defenders of Wildlife, 504 U. S., at 560-561. “Although imminence is coneededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.” Id., at 565, n. 2 (internal quotation marks omitted). Thus, we have repeatedly reiterated that “threatened injury must be certainly impending to constitute injury in fact,” and that “[allegations of possible future injury” are not sufficient. Whitmore, 495 U. S., at 158 (emphasis added; internal quotation marks omitted); see also Defenders of Wildlife, supra, at 565, n. Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:

sc_lcdisposition

D

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. BREAD POLITICAL ACTION COMMITTEE et al. v. FEDERAL ELECTION COMMISSION et al. No. 80-1481. Argued January 19, 1982 Decided March 8, 1982 O’Connor, J., delivered the opinion for a unanimous Court. Jeffrey Cole argued the cause for appellants. With him on the briefs was Stanley T. Kaleczyc. Charles N. Steele argued the cause for appellees. With him on the brief was Richard B. Bader. Justice O’Connor delivered the opinion of the Court. Section 310(a) of the Federal Election Campaign Act of 1971 (FECA), 88 Stat. 1285, as amended, 2 U. S. C. §437h(a) (1976 ed., Supp. IV), lists three categories of plaintiffs who may challenge the constitutional validity of FECA in specially expedited suits: (1) the Federal Election Commission (FEC), (2) “the national committee of any political party,” and (3) “any individual eligible to vote in any election for the office of President.” In this case, we address a question we expressly reserved in California Medical Assn. v. FEC, 453 U. S. 182, 187, n. 6 (1981): whether a party not belonging to one of the three categories listed in § 437h(a) may nonetheless invoke its procedures. I The appellants are two trade associations and three political action committees (PAC’s): the National Restaurant Association and its associated PAC, the Restaurateurs Political Action Committee, the National Lumber and Building Material Dealers Association and its associated PAC, the Lumber Dealers Political Action Committee, and the Bread Political Action Committee, the PAC associated with the American Bakers Association. In order to challenge the validity of 2 U. S. C. § 441b(b)(4)(D), which has the effect of limiting the extent to which trade associations and their PAC’s may solicit funds for political purposes, the appellants filed an action in the United States District Court for the Northern District of Illinois, seeking expedited consideration of their suit under the procedures set forth in §437h. The District Court denied certification under §437h on the ground that the plaintiff trade associations and PAC’s do not belong to any of the three categories of plaintiffs fisted in § 437h(a) as eligible to invoke its expedited procedures. On an interlocutory appeal from this ruling, a panel of the Court of Appeals reversed, holding that § 437h(a) is available for use by plaintiffs whether they belong to an enumerated category or not. 591 F. 2d 29 (CA7 1979). On remand, the District Court, as required by § 437h, first made findings of fact and then certified the case back to the Court of Appeals sitting en banc for a determination on the constitutional questions raised by the appellants. The en banc court declined to overrule the earlier panel decision regarding the reach of § 437h(a), and proceeded to the merits of the appellants’ claims, upholding the constitutionality of the challenged provisions. 635 F. 2d 621 (CA7 1980). The present appeal to this Court followed, confronting us with the question whether §437h(a) should be construed to permit parties, such as the appellants, who do not belong to one of its three specifically enumerated classes, nonetheless to invoke its procedures. HH HH Our analysis of this issue of statutory construction must begin with the language of the statute itself,” Dawson Chemical Co. v. Rohm & Haas Co., 448 U. S. 176, 187 (1980), and “[a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). Moreover, when the statute to be construed creates, as § 437h does, a class of cases that command the immediate attention of this Court and of the courts of appeals sitting en banc, displacing existing caseloads and calling court of appeals judges away from their normal duties for expedited en banc sittings, close construction of statutory language takes on added importance. As we have said: “Jurisdictional statutes are to be construed ‘with precision and with fidelity to the terms by which Congress has expressed its wishes’; and we are particularly prone to accord ‘strict construction of statutes authorizing appeals’ to this Court.” Palmore v. United States, 411 U. S. 389, 396 (1973) (citations omitted). In short, the plain language of § 437h(a) controls its construction, at least in the absence of “clear evidence,” United States v. Apfelbaum, 445 U. S. 115, 121 (1980), of a “clearly expressed legislative intention to the contrary,” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., supra, at 108. The text of § 437h(a) states plainly enough which plaintiffs may invoke its special procedures: “The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President.” Thus, §437h(a) affords its unique system of expedited review to three carefully chosen classes of persons who might meet the minimum standing requirements of Art. III. The only artificial persons expressly entitled to invoke §437h(a) are the Federal Election Commission, which is charged with enforcing the Act, and the national committees of political parties, which play a central role in the political process. In the face of the obvious meaning of the language of § 437h(a), the appellants urge what they concede to be an “expansive construction” of the section. Reply Brief for Appellants 3. Indeed, the construction they advocate could not be more expansive, for they apparently argue that Congress intended the class of permissible plaintiffs to be defined by the outermost limits of Art. III. The appellants, however, fall far short of providing “clear evidence” of a “clearly expressed legislative intention” that the unique expedited procedures of §437h be afforded to parties other than those belonging to the three listed categories. In fact, the section’s legislative history is too brief and ambiguous to provide much solace to either side of the present controversy. When Senator Buckley introduced the section during the deliberations on the Federal Election Campaign Act Amendments of 1974, he limited his explanation to the following comments: “[I]t is a modification that I am sure will prove acceptable to the managers of the bill. It merely provides for the expeditious review of the constitutional questions I have raised. I am sure we will all agree that if, in fact, there is a serious question as to the constitutionality of this legislation, it is in the interest of everyone to have the question determined by the Supreme Court at the earliest possible time.” 120 Cong. Rec. 10562 (1974). In the House, Representative Frenzel echoed this theme in responding to a question from another Member of the House about the constitutionality of the Amendments: “Any time we pass legislation in this field we are causing constitutional doubts to be raised. I have many myself. I think the gentleman has pointed out a good one. We have done the best we could to bring out a bill which we hope may pass the constitutional test. But, we do not doubt that some questions will be raised quickly. “I do call the attention of the gentleman to the fact that any individual under this bill has a direct method to raise these questions and to have those considered as quickly as possible by the Supreme Court.” Id., at 35140 (emphasis added). These brief remarks by two Members of Congress nearly exhaust the legislative history of the section. The appellants nevertheless suggest that these comments suffice to prove that, in passing § 437h, Congress focused solely on expediting the resolution of all disputes over the constitutionality of FEC A, and was unconcerned with the identity of the challenging plaintiffs. In support of this view, the appellants point out that in the first sentence of § 437h(a) Congress authorized suits to challenge “any” provision of the Act, while the second sentence requires the district courts to certify “all” constitutional questions under the Act to the court of appeals sitting en banc. According to the appellants, the fact that Congress expressly extended §437h to “all” constitutional questions about “any” provision of the Act compels the inference that Congress also intended that § 437h be afforded to any and all plaintiffs, even those not expressly fisted in the Act. The obvious fact that Congress wanted a broad class of questions to be speedily resolved, however, scarcely implies that Congress intended the courts to augment Congress’ enumeration of qualified plaintiffs. Indeed, if it suggests anything, the structure of the Act suggests that Congress knew how to specify that “all” constitutional questions about “any” provision of the Act may be raised, and therefore could as easily have directed that “any” person might invoke the unique procedures of §437h. But Congress did not do so. Instead, it went to the trouble of specifying that only two precisely defined types of artificial entities and one class of natural persons could bring these actions. Reaching out for some support, the appellants hypothesize that Congress specified the three enumerated classes to remove any doubts about their standing, but not to exclude others by implication. According to the appellants, absent explicit congressional authorization, the members of the three . fisted classes might not meet the prudential standing requirements this Court imposes. See, e. g., Warth v. Seldin, 422 U. S. 490, 498-501 (1975). This argument, however, puts the appellants in the awkward position of simultaneously noting that express congressional authorization is required to overcome prudential standing limitations, while urging us to read an implicit grant of standing into congressional silence. Of course, had Congress intended the result the appellants desire, it could easily have achieved it by expressly granting standing to the limits of Art. Ill, and then listing as specific examples the three classes now enumerated in § 437h(a). Instead, Congress gave no affirmative indication that it meant to include in its grant any parties beyond the three listed classes. For these reasons, we cannot impute to Congress the intention to confer standing on the broadest class imaginable. We do not assume the maximum jurisdiction permitted by the Constitution, absent a clearer mandate from Congress than here expressed. We therefore hold that only parties meeting the express requirements of § 437h(a) may invoke its procedures. Because the appellants do not meet these requirements, they may not invoke the expedited procedures of § 437h. . The appellants complain that the practical result of this ruling may be that some provisions of FECA will escape expedited review, thereby defeating Congress’ intent that the courts pass as quickly as possible on the validity of FECA. Without a clearer indication of congressional intent than provided by the extremely sketchy legislative history of § 437h, however, we believe the best evidence of what Congress wanted is found in the statute itself, where Congress listed only three types of parties who may invoke the expedited procedures of §437h. Others, evidently, are remitted to the usual remedies. We note, moreover, that our decision today raises no threat that an aggrieved party with standing will be unable to litigate questions arising under FECA, since our holding affects only the availability of the extraordinary procedures afforded by § 437h. Section 437g, for example, permits either the Commission or, under the proper circumstances, a private person to bring a civil action to enforce the Act, and such suits are themselves given expedited treatment under §437g(a)(10), being advanced on the calendar ahead of all other actions except those given even higher priority by either § 437g or § 437h. Thus, any challenge, constitutional or nonconstitutional, may be raised as a defense in an enforcement action, and will be afforded expedited review. Furthermore, plaintiffs meeting the usual standing requirements can challenge provisions of the Act under the federal-question jurisdiction granted the federal courts by 28 U. S. C. §1331 (1976 ed., Supp. IV). In sum, the appellants have not met the burden of showing such “clear expression” or “clear evidence” of congressional intent to make the procedures of § 437h available to categories of plaintiffs other than those listed in that section. Accordingly, we reverse and remand for proceedings consistent with this opinion. So ordered. Title 2 U. S. C. § 441b(b)(4)(D) permits an incorporated trade association to solicit contributions to its (PAC) only from “the stockholders and executive or administrative personnel of the member corporations of such trade association and the families of such stockholders or personnel to the extent that such solicitation of such stockholders and personnel, and their families, has been separately and specifically approved by the member corporation involved, and such member corporation does not approve any such solicitation by more than one such trade association in any calendar year.” Other provisions of FEC A permit a trade association to solicit contributions to its PAC from its members, § 441b(b)(4)(C), and from its own executive and administrative personnel and their families, § 441b(b)(4)(A). That section provides: “(a) Actions, including declaratory judgments, for construction of constitutional questions; eligible plaintiffs; certification of such questions to courts of appeals sitting en banc “The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act. The district court immediately shall certify all questions of constitutionality of this Act to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc. “(b) Appeal to Supreme Court; time for appeal “Notwithstanding any other provision of law, any decision on a matter certified under subsection (a) of this section shall be reviewable by appeal directly to the Supreme Court of the United States. Such appeal shall be brought no later than 20 days after the decision of the court of appeals. “(c) Advancement on appellate docket and expedited disposition of certified questions “It shall be the duty of the court of appeals and of the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any matter certified under subsection (a) of this section.” 2 U. S. C. §§437h(a)-(e) (1976 ed. and Supp. IV). The grant of standing to the three listed categories of plaintiffs is similar to the grant Congress had adopted earlier in 26 U. S. C. § 9011(b) authorizing the “Commission, the national committee of any political party, and individuals eligible to vote for President” to bring suits to implement or construe the Presidential Election Campaign Fund Act, 26 U. S. C. §§ 9001-9013. Perhaps because Senator Buckley’s intent as expressed in the legislative history remains uncertain, the appellants have submitted to this Court affidavits from Senator Buckley and David A. Keene, the Executive Assistant to the Senator who prepared the original draft of § 437h, expressing the belief that the amendment was not intended to exclude organizations from challenging the constitutionality of the Act. See Affidavit of James Buckley (Nov. 11, 1977), reprinted at App. 110, 112; Affidavit of David A. Keene (Oct. 21, 1977), reprinted at App. 106, 109. We cannot give probative weight to these affidavits, however, because “[s]ueh statements ‘represent only the personal views of th[is] legislato[r], since the statements were [made] after passage of the Act.’ ” Regional Rail Reorganization Act Cases, 419 U. S. 102, 132 (1974), quoting National Woodwork Manufacturers Assn. v. NLRB, 386 U. S. 612, 639, n. 34 (1967). See also Quern v. Mandley, 436 U. S. 725, 736, n. 10 (1978), in which we noted that “post hoc observations by a single member of Congress carry little if any weight.” The appellants suggest that an anomaly is thereby created, unless parties not listed in § 437h(a) can invoke that section’s procedures, because nonconstitutional challenges raised as defenses will be granted expedited service under 2 U. S. C. §437g(a)(10) (1976 ed., Supp. IV), while constitutional challenges brought by plaintiffs not listed in §437h(a) will be treated like any other case on the docket. No evidence exists that Congress ever pondered this subtlety, or, if it did, what it thought about it. Suffice it to say that we do not consider the possibility that Congress may have seen fit to expedite claims raised by defendants, but not similar claims raised by some plaintiffs, to shed much light on Congress’ purpose in enumerating three specific classes of eligible plaintiffs in § 437h(a). We express no opinion, however, on the question whether the appellants meet the standing requirements under § 1331. 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_numresp

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Knowlton MERRITT, Plaintiff-Appellee, v. John E. MACKEY, Defendant-Appellant, and Jerry Howard, et al., Defendant. Knowlton MERRITT, Plaintiff-Appellant, v. John E. MACKEY; Steve Vincent, et al., Defendants-Appellees. Nos. 89-35233, 89-35270. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 12, 1990. Decided May 8, 1991. Stephen L. Brischetto, Brischetto & Baldwin, Portland, Or., for plaintiff-appellee-ap-pellant. Richard A. Olderman, Civ. Div., U.S. Dept, of Justice, Washington, D.C., for defendants-appellants-appellees. Before CANBY, and TROTT, Circuit Judges, and LEGGE, District Judge. The Honorable Charles A. Legge, United States District Judge for the Northern District of California, sitting by designation. CANBY, Circuit Judge: John Mackey appeals the district court’s judgment, following a bench trial on remand from this court, in favor of Knowlton Merritt in Merritt’s action against Mackey, et al. Merritt’s action charges that Mack-ey, a federal official, violated his due process rights in improperly coercing Merritt’s private employer to fire him. Merritt cross-appeals. We affirm all of the rulings of the district court except for the award of a multiplier in the award of attorney’s fees. BACKGROUND Merritt is a former counselor supervisor with Klamath Alcohol and Drug Abuse, Inc. (“KADA”), a private nonprofit corporation. He was fired from that position, partly as a consequence of actions taken by Mackey and Steven Vincent. Mackey was the Area Alcoholism Coordinator for Indian Health Services (“IHS”), a federal agency. Vincent was a Regional Alcohol Specialist with the State of Oregon’s Mental Health Division. Mackey and Vincent had jointly evaluated the management of KADA, and had concluded that Merritt had failed to perform adequately. Their report recommended that further funding of KADA be conditioned on Merritt’s dismissal. The KADA Board of Director’s dismissed Merritt without a pre-termination hearing. The circumstances of this dispute are related in this court’s earlier decision in this ease, Merritt v. Mackey, 827 F.2d 1368 (9th Cir.1987) (“Merritt I”). Merritt brought this action against several defendants alleging various claims. Among those claims was one against Vincent under 42 U.S.C. § 1983, and one against Mackey pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Both of those claims alleged deprivation of liberty and property without due process. The district court granted summary judgment in favor of Vincent and Mackey on the ground that Merritt had not stated a claim for deprivation of liberty upon which relief could be granted. The court also decided, after this first trial, that Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), precluded Merritt’s claim that his property interest in continued employment could not be extinguished without a pretermination hearing. Finally, the district court ruled that Vincent and Mackey were protected from liability by the doctrine of qualified immunity. On appeal, a divided panel of this court affirmed the grant of summary judgment as to the liberty deprivation claims, but reversed and remanded as to the property deprivation claims. Merritt I, 827 F.2d 1368 (9th Cir.1987). Merritt I first held that Merritt had a protected property interest in his continued employment with KADA. It then concluded that under the circumstances of this case, Merritt’s right to due process was not satisfied by a post-termination remedy, and that he was entitled to “a meaningful hearing at a meaningful time” to challenge his dismissal. Id. at 1371. This court also held that Vincent and Mackey were not entitled to qualified immunity because they knowingly acted outside the scope of their employment and violated a clearly established due process right. Id. at 1372-73. On remand, the district court ruled that Merritt was entitled to a pretermination hearing and that his due process rights were violated because he had not received such a hearing. The court also found, however, that Merritt would have been terminated even if he had been provided with an adequate predeprivation hearing. Further, the district court concluded that Vincent and Mackey were not entitled to qualified immunity, under this court’s mandate in Merritt I. After a bench trial, the district court awarded Merritt $35,000 in damages as compensation for emotional distress arising from the due process deprivation. It concluded that he was not entitled to either lost wages or punitive damages because he would have been terminated even if he had been afforded a pretermination hearing. In addition, the court awarded Merritt approximately $100,000 in attorney’s fees pursuant to 42 U.S.C. § 1988. The court reasoned that Mackey, although a federal official, was liable under Section 1988 because he acted jointly with Vincent, a state official, to • violate Merritt’s rights. The court awarded Merritt fees for 90% of the hours he requested at $125 per hour. It also enhanced the fee by one-third. Mackey appeals the district court's rulings that he is not entitled to qualified immunity, and that he is liable for attorney’s fees under 42 U.S.C. § 1988. He also challenges as excessive the amount of damages and attorney’s fees awarded. Merritt cross-appeals, contending that the district court failed to recognize that his rights to due process were violated not only by the deprivation of a timely hearing, but also by unreasonable governmental interference with his property rights in his chosen occupation. Consequently, Merritt claims, the court improperly denied him damages for lost wages and punitive damages. We affirm the district court as to all issues raised by these appeals. ANALYSIS I. Qualified Immunity In Merritt I, this court held that neither Vincent nor Mackey was entitled to qualified immunity because “their conduct exceeded the scope of their authority and because they violated Merritt’s clearly established constitutional rights.” 827 F.2d at 1373. On remand, the district court held that this court’s prior holding was “the law of the case.” Mackey now asks this court to reconsider the issue, and hold that Vincent and Mackey were entitled to qualified immunity. We agree with the district court that the ruling in Merritt I is the law of the case and decline to address the merits of qualified immunity, except as necessary to determine whether we ought to leave the matter as settled by Merritt I. “[U]nder the ‘law of the case’ doctrine, one panel of an appellate court will not as a general rule reconsider questions which another panel has decided on a prior appeal in the same case.” Kimball v. Callahan, 590 F.2d 768, 771 (9th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979). The doctrine is discretionary, not mandatory. United States v. Houser, 804 F.2d 565, 567 (9th Cir.1986). It merely expresses the practice of courts generally to refuse to reopen that which has been decided, and is not a limitation of the courts’ power. Id. (citing Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912)); United States v. Maybusher, 735 F.2d 366, 370 (9th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985). “[T]he prior decision of legal issues should be followed on a later appeal ‘unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice.’” Kimball, 590 F.2d at 771-72 (citing White v. Murtha, 377 F.2d 428, 431 (5th Cir.1967)). Mackey contends that two of these exceptions apply here. First, he contends that Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), effected a change in the appropriate standard for determining qualified immunity, which the panel in Merritt I failed to consider. Second, he contends that the decision in Merritt I court was clearly erroneous and would work a manifest injustice. We disagree with both arguments. A. A change in the law Anderson v. Creighton did not change controlling authority on this issue so as to require us to reconsider the merits of Mackey’s qualified immunity defense. First, Anderson was decided three months prior to Merritt, so there was no intervening change of law. More important, Anderson did not change the controlling standard as Mackey suggests. Anderson clarified and refined the law articulated in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In Merritt I, this court relied on Harlow. Examination of its analysis indicates that it complies with the Anderson “clarification.” The Supreme Court in Anderson said, “our holding today does not extend official qualified immunity beyond the bounds articulated in Harlow and our subsequent cases_” 483 U.S. at 641-42 n. 3, 107 S.Ct. at 3039-40 n. 3. It was Harlow that first established that qualified immunity is based on the “objective legal reasonableness” of the defendant’s conduct. 457 U.S. at 818-19, 102 S.Ct. at 2738-39. The Merritt I opinion recognized that immunity attaches to official action unless that action “ ‘violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” 827 F.2d at 1373 (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). Anderson emphasized the level of specificity at which that inquiry must be made, requiring that “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.... [I]n the light of pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. Anderson goes on to require that the unlawfulness of the official’s activity must be apparent in light of “the circumstances with which [the official] was confronted.” Id. The Merritt I court had the Anderson decision before it, and the language of its opinion indicates that it exercised the specificity of scrutiny required by Anderson: Vincent and Mackey testified that they knew they had no authority to require KADA to fire Merritt. Because they knowingly acted outside the scope of their authority, they are not entitled to qualified immunity.... Vincent and Mackey should have known that they could not cause Merritt’s summary dismissal without violating his .due process rights. Merritt I, 827 F.2d at 1373. B. Clearly erroneous and manifest injustice We also reject Mackey’s other argument that the Merritt I qualified immunity holding should not be considered the law of the case. Mackey contends that it is “manifestly unjust” to hold that he violated a clearly established right, when the dissent in Merritt I strongly disputed the very existence of that right. See Merritt I, 827 F.2d at 1374. In essence, Mackey asks how a right can be “clearly established” for government officials when appellate judges cannot agree to its existence. Mackey poses a question with seductive implications for qualified immunity doctrine, but it is not the question upon which this appeal should turn. We are not presented as a matter of first impression with the question of which view in Merritt / — that of the majority or that of the dissent — was correct. That issue was thrashed out in Merritt I itself, and we owe a certain deference to the view that prevailed. The question before us on this appeal is whether the majority decision in Merritt I is so clearly incorrect that we are justified in refusing to regard it as the law of the case. See United States v. Houser, 804 F.2d at 568. Although there was substantial prece-dential support for the Merritt I majority opinion, and it has been cited approvingly since, Mackey contends that the very fact of a dissent establishes manifest error in the majority’s conclusion that the right in issue was clearly established. We cannot accord a dissent that much probative power. Dissent or no, two judges ruled that the right in question was clearly established and that reasonable officials would have known that their actions infringed that right. Those two judges may well have been correct. To hold that they could not have been correct simply because a dissent was filed would be to hold the majority hostage to the dissent. One judge would have a veto that would prevent any majority of two from denying a claim of qualified immunity. The dissent alone does not compel us, therefore, to conclude that the decision in Merritt I was incorrect. Nor do we approach the qualified immunity question as if it were being presented for the first time. At this stage of the litigation, it is incumbent upon Mackey to convince us not only that the majority decision in Merritt I was wrong, but that it was clearly wrong. This he has failed to do. Mackey has not demonstrated clear error by the Merritt I majority in applying this principle to the specific facts of his case. We accordingly find no justification for departing from our usual policy of adhering to the law of the case. II. Damages A. Merritt’s appeal The district court awarded Merritt damages for emotional suffering, but did not award him lost wages or punitive damages. Merritt cross-appeals, arguing that the district court erroneously identified the due process violation which he suffered. The district court confined its finding of a due process violation to KADA’s failure to provide Merritt with a pretermination hearing. That finding was based on this court’s holding in Merritt I that Merritt “was deprived of his property interest in continued employment when the state and federal agents intentionally coerced KADA to fire him.” Merritt I, 827 F.2d at 1372. Merritt contends that such a holding requires that his compensable injury includes, not only the deprivation of his right to a pretermination hearing, but also the deprivation of his property interest in continuing employment itself. The district court found, however, that Merritt would have been fired regardless of Mackey’s involvement. Unless that finding is clearly erroneous, it limits Merritt’s damages to those arising from the denial of procedural due process only, and precludes an award of damages for deprivation of the employment itself, a loss not caused by Mackey. Carey v. Piphus, 435 U.S. 247, 260-66, 98 S.Ct. 1042, 1050-54, 55 L.Ed.2d 252 (1977); See Alexander v. City of Menlo Park, 787 F.2d 1371, 1375 (9th Cir.1986), cert. denied, 479 U.S. 1032, 107 S.Ct. 879, 93 L.Ed.2d 833 (1987). We cannot say that the district court s trading that Merritt would have been fired anyway was clearly erroneous. Although the evidence conflicted, there was ample support for the district court’s finding. We therefore conclude that the district court did not err in refusing to award Merritt damages for his loss of employment. B. Mackey’s appeal Mackey also appeals the district court’s damage award. He contends that Merritt is entitled to no damages, in spite of his loss of a pretermination hearing, because any injury sustained was caused by his loss of employment. Mackey contends that because the district court found that Merritt’s discharge was justified and would have occurred regardless of Mackey’s intervention, he is liable for no damages. Merritt can recover for mental and emotional distress caused by the denial of procedural due process if he proves actual injury. Carey v. Piphus, 435 U.S. 247, 264, 98 S.Ct. 1042, 1052, 55 L.Ed.2d 252 (1977); Chalmers v. City of Los Angeles, 762 F.2d 753, 761 (9th Cir.1985). Here, the district court reviewed extensive evidence of actual damages arising from Merritt’s “being terminated without adequate opportunity to be heard or to protest his termination.” It found Merritt’s evidence credible, and awarded $35,000 damages. The district court thus awarded damages, not for Merritt’s loss of employment, but for his denial of a hearing before he was discharged. We review the district court’s computation of damages for clear error. See Galindo v. Stoody Co., 793 F.2d 1502, 1516 (9th Cir.1986). In light of the evidence offered by Merritt, we are not prepared to say that the district court’s award was clearly erroneous. III. Attorney’s Fees The district court ordered Mackey, as well as Vincent, to pay Merritt’s attorney’s fees, in the amount of $99,856.39, pursuant to 42 U.S.C. § 1988. Mackey contends that, as a federal official, he is not liable for attorney’s fees under 42 U.S.C. § 1988, and, alternatively, that the fees awarded here were excessive. A. Mackey’s liability for fees under § 1988 Section 1988 allows the court to award attorney s fees to the prevailing party in an action brought under 42 U.S.C. § 1983. Actions filed under § 1983 require state action. Mackey, as an individual or as a federal official, is, thus, exempt from Section 1988 liability unless he “conspire[d] with or participate^] in concert with state officials who, under color of state law, act[ed] to deprive a person of protected rights.” Scott v. Rosenberg, 702 F.2d 1263, 1269 (9th Cir.1983), cert. denied, 465 U.S. 1078, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984). Such liability will not attach unless “the state or its agents significantly participated in the challenged activity.” Gibson v. United States, 781 F.2d 1334, 1343 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987). The district court found that Mackey was acting under color of state law because he was involved in a joint action with Vincent, a state official. “Historical” factual findings underlying that holding are reviewed for clear error. The district court found that “Mackey and Vincent jointly evaluated KADA (and plaintiff), and jointly agreed to require plaintiffs termination.” Opinion, Mar. 6, 1989. The final report resulting in Merritt’s termination (and this litigation) was issued under state letterhead, signed by both Mackey and Vincent. The district court’s finding was not clearly erroneous; the form of that report accurately reflected what the investigation was — a joint collaboration between a state and federal official. We review de novo the district court’s application of these facts to statutory and precedential authority leading to the district courts finding that “state action” was present here. United States v. McConney, 728 F.2d 1195, 1199-1204 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We agree with the district court that Mackey is liable for attorney’s fees under Section 1988, because he acted in concert with Vincent, a state official. Vincent “significantly participated in the challenged activity.” Gibson v. United States, 781 F.2d 1334, 1343 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987). B. Amount of attorneys’ fees awarded Mackey alternatively argues that the fee award of nearly $100,000 was excessive. We review this award for an abuse of discretion. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983); Blum v. Stenson, 465 U.S. 886, 898-901, 104 S.Ct. 1541, 1548-50, 79 L.Ed.2d 891 (1984). The district court provided a thorough and thoughtful explanation of the lodestar fee at which it arrived. It discounted for hours that it deemed to be unreasonable. We reject Mackey’s claim that the district court abused its discretion in failing to find that more hours were excessive. We conclude, however, that the district court granted a multiplier of 1.33 on improper grounds. Even though the district court properly recognized that some of the factors derived from Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976), were properly subsumed in the lodestar figure, see Cabrales v. County of Los Angeles, 864 F.2d 1454, 1464 (9th Cir.1988), it nevertheless relied on impermissible grounds for enhancement. The time involved is clearly subsumed in the lodestar figure, and the difficulty of the case is similarly inappropriate as a ground of enhancement. See Fadhl v. City and County of San Francisco, 859 F.2d 649, 651 n. 2 (1988). Finally, the district court relied upon the risk inherent in Merritt’s case. A majority of the Supreme Court has held, however, that risk in the individual case is not a proper ground for a multiplier. Pennsylvania v. Delaware Valley Citizens’ Council, 483 U.S. 711, 734, 107 S.Ct. 3078, 3091, 97 L.Ed.2d 585 (1987) (concurring opinion of Justice O’Connor); see Fadhl, 859 F.2d at 650 n. 1 (Justice O’Connor’s concurring opinion constitutes Court’s holding in Delaware Valley). Enhancements for risk are only appropriate when supported by a showing that such enhancement is “necessary to attract competent counsel in the relevant community” for the class of cases in question. Delaware Valley, 483 U.S. at 734, 107 S.Ct. at 3091 (concurring opinion of Justice O’Connor). There is neither a finding nor evidence here to establish that necessity. We therefore reverse that portion of the district court’s fee awards that includes multipliers of 1.33, and we remand the fee awards to the district court for recalculation and reentry of the awards without the multiplier. CONCLUSION The fee awards entered by the district court are reversed insofar as they include a multiplier of 1.33, and the fee awards are remanded to the district court for recalculation and reentry of the awards without the multiplier. In all other respects, the judgment of the district court is affirmed. Each party will bear its own share of the regular costs on appeal. As prevailing party in this litigation, Merritt is entitled to an award of fees on appeal pursuant to 42 U.S.C. § 1988, subject to reduction in light of Merritt’s unsuccessful cross-appeal. Application is to be made as provided in 9th Cir. Rule 39-1. AFFIRMED IN PART; REVERSED IN PART; REMANDED. . Vincent also appealed, but later voluntarily dismissed his appeal. . This formulation has since been repeatedly quoted in this circuit. See, e.g., League of Women Voters of California v. F.C.C., 798 F.2d 1255, 1256 (9th Cir.1986); United States v. Houser, 804 F.2d 565, 568 (9th Cir.1986); Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir.1981). . In support of his argument, Mackey cites Harris v. Young, 718 F.2d 620, (4th Cir.1983), where the Fourth Circuit stated, "It would not be fair to hold a state official liable for not fulfilling ‘clearly established’ obligations when a federal Circuit Court of Appeals was unable to unanimously decide the same issue.” Id. at 624. That case is inapposite because the Harris court was faced with the issue, in the first instance, of whether a government official had violated a clearly established right. To that issue of whether a right was "clearly established," the Harris court considered relevant an earlier split decision in a separate case. Harris is not relevant here, since it did not deal with the entirely separate concerns of whether an earlier appellate decision in the same case should be final. . The majority opinion relied primarily on the Supreme Court's opinion in Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), that an employee of a private employer “has the right to be free from unauthorized actions of government officials which substantially impair his property interests.” Id.., at 493, n. 22, 79 S.Ct. at 1412, n. 22. The majority went on to conclude that Merritt's employment contract, including a "for cause” termination clause, was not simply a "unilateral expectation" of continued employment but a “legitimate claim of entitlement" to due process procedural protections as established by Oregon law (citing Board of Regents v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972)). . See, e.g., Roth v. Veteran’s Administration of United States, 856 F.2d 1401, 1407 (9th Cir.1988) (citing Merritt I for proposition that qualified immunity does not protect public officials who deprive employees of a property interest in their employment); Love v. U.S., 871 F.2d 1488, 1495 (9th Cir.1989) (citing Merritt I for proposition that a deprivation of property in violation of the due process clause states a viable claim for damages under the constitution); Bateson v. Geisse, 857 F.2d 1300 (9th Cir.1988) (citing Merritt I for the proposition that interference that causes a due process violation may be actionable under 42 U.S.C. § 1983). All of these opinions were unanimous and none of them questioned the logic or holding of Merritt I. Mackey contends that this court’s Memorandum Disposition in Johnson v. Serv-Air, Inc., 833 F.2d 1016 (9th Cir.1987), is directly in conflict with the Merritt I majority holding, demonstrating that that holding is "clearly erroneous.” Because Johnson is not directly “relevant under the doctrines of law of the case, res judicata, or collateral estoppel,” Ninth Circuit Rule 36-3 (1989), it cannot be considered as precedent. See DiMartini v. Ferrin, 889 F.2d 922, 929 (9th Cir.1989) (court refused to consider Johnson as support for the proposition that due process violations not clearly established). . Mackey also argues that adhering to Merritt I will cause "manifest injustice." This argument is simply a reprise of his "clearly erroneous” argument. He argues that because the majority holding is "clearly erroneous" (by virtue of a dissent), for that reason it works a "substantial injustice" on Mackey. We reject that argument because we find no clear error in the majority decision in Merritt I. Moreover, we would depart from the law of the case only if we found clear and manifest injustice. See Houser, 804 F.2d at 568. See Moore v. James H. Matthews & Co., 682 F.2d 830, 833-34 (9th Cir.1982). . Merritt also contends that the district court erred in failing to award punitive damages for Mackey’s violation of his right to continued employment. Without any evidence that Mackey acted willfully or recklessly in disregard of Merritt’s due process rights, we are unprepared to overturn the district court’s denial of punitive damages. . Scott v. Rosenberg, 702 F.2d 1263 (9th Cir.1983), cert. denied, 465 U.S. 1075, 1078, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984), is inapposite. In Scott, this court held that federal officials had not participated in "state action" when the FCC and the California Attorney General separately investigated the plaintiff. In that case, any basis for a finding of joint activity was limited to the sharing of information: “At most, the [federal] employees requested information from, offered to exchange, and did exchange information with the California attorney general's office. ... This, without more, is not enough to establish that their conduct was under color of state law." Id. at 1269. See also Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 196 n. 16, 109 S.Ct. 454, 464 n. 16, 102 L.Ed.2d 469 (1984) (NCAA not liable under § 1988 as joint actor with state university; the two “were antagonists, not joint participants”). Question: What is the total number of respondents in the case? Answer with a number. Answer:

songer_usc1sect

1983

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Fletcher Altman SMITH, and Marguerite Elizabeth Smith, Plaintiffs-Appellees, v. Don HEATH, Defendant, and Jack Rohtert, Defendant-Appellant. No. 80-5415. United States Court of Appeals, Sixth Circuit. Argued Jan. 28, 1982. Decided Sept. 29, 1982. Rehearing and Rehearing En Banc Denied Feb. 23, 1983. Peter H. Curry, William Howard (argued), Nashville, Tenn., for defendant-appellant. George C. Paine, II, Keith M. Lundin (argued), Daniel C. Kaufman, Waddey & Newport, Nashville, Tenn., for plaintiffs-appellees. Before MARTIN, Circuit Judge, WEICK, Senior Circuit Judge, and HILLMAN, District Judge. Honorable Douglas W. Hillman, District Judge, United States District Court for the Western District of Michigan, sitting by designation. HILLMAN, District Judge. Jack Rohtert, a homicide detective with the Nashville and Davidson County [Tennessee] Metropolitan Police, appeals a judgment against him in the amount of $39,-524.95 for willfully violating the constitutional rights of Fletcher Altman Smith [Smith] and Marguerite Elizabeth Smith [M. E. Smith]. (Although sharing the same last name, Smith and M. E. Smith are not related.) On May 24, 1975, Smith committed a minor traffic offense in front of his motel in Nashville. Officer Don Heath, a co-defendant, followed Smith into the motel driveway where Smith parked his van and went into his motel apartment, closing the door behind him. This door to his apartment had a large sign on it marked “Private Keep Out.” Nevertheless, Heath pursued Smith and kicked that door open to force his way inside. M. E. Smith was sitting at the kitchen table knitting. Her granddaughter was asleep in the bedroom. Heath entered the kitchen with his gun drawn, and without explanation, walked through the kitchen to the bedroom which Smith had entered. Heath opened the bedroom door and fired repeatedly at Smith. Predictably, Smith was gravely wounded by Heath’s attack. M. E. Smith called an ambulance. Other police officers soon arrived. Meanwhile, Officer Rohtert drove to the motel after receiving a call on his car radio about the shooting incident and possible homicide. When he arrived, he found the door open with the other officers inside. By his own admission, he was the officer in charge of the investigation. He ordered M. E. Smith into a back room, telling her to stay there but neither inquiring as to her knowledge of the events or explaining their presence and actions. Then, he directed the other officers to seize evidence, not limiting their search in any way. With no apparent justification, Smith’s van was impounded and taken away. In the words of the district judge, “in an effort to find some evidence to mitigate the impact of those unconstitutional acts [Heath’s entry and shooting], the defendant Rohtert and his subordinates engaged in an unconstitutional orgy of unique proportions. They were not performing routine nor normal police procedures.” Although the police ransacked the apartment, no evidence of illegal acts or activity was uncovered. No claim is made that Rohtert obtained permission to either enter or search the Smith apartment. Likewise he did not obtain a warrant. After Smith had been transported to a hospital, Rohtert ordered an officer to take M. E. Smith to police headquarters to obtain a statement, while the other officers remained behind and. continued their search. She was kept at the station for over five hours. While at the station, she asked to leave, but was refused permission. No one told her that she was free to go if she wanted. She was given no Miranda warnings. Some friends came to speak with her, but she was not allowed to see them. A statement was taken from her, but no copy was given to her. She was not allowed to go to the bathroom unaccompanied. She was released between 6:00 a.m. and 7:00 a.m. Since that time, she has been nervous and unable to sleep. At the time of the trial, she was still under the care of a medical doctor and taking tranquilizers for her nervous condition. Smith survived the attack. He and M. E. Smith brought this action against Heath and Rohtert under 42 U.S.C. section 1983, alleging that these police officers had willfully violated their Fourth Amendment rights by conducting an illegal search and seizure of Smith’s apartment, and by making an illegal arrest and detention of M. E. Smith. Following a bench trial, the district judge found both defendants individually liable on the 1983 claims. However, only Rohtert appeals that decision. Rohtert was ordered to compensate Smith as follows: compensatory damages of $5,000 for the unconstitutional search and seizure, $450 for three “lost” guns and punitive damages of $5,000, totalling $10,-450. In addition, Rohtert was ordered to pay M. E. Smith: compensatory damages of $5,000 for her unconstitutional arrest and detention, $5,000 for her ensuing nervous condition and punitive damages of $2,500, totalling $12,500. The district judge also assessed Rohtert’s portion of the attorney fees and costs at $16,574.95. In all, Rohtert was ordered to pay $39,524.95. On appeal Rohtert alleges error in the findings of fact, the conclusions of law, and the awards of compensatory damages, punitive damages and attorney fees and costs. I. LIABILITY The first issue of this appeal is whether Rohtert violated the civil rights of Smith by searching his apartment and by his conduct towards M. E. Smith. The court will first address the issue of Rohtert’s liability to M. E. Smith (referred to in the record and by the district judge as “Grandma”). The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ...” The requirement that searches and seizures be based on some objective justification, governs all seizures of the person, “including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-78, 20 L.Ed.2d 889 (1968).” United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). Of course, not all contacts between police officers and citizens amount to seizures. The Supreme Court in United States v. Mendenhall, 446 U.S. 544, 553-554, 100 S.Ct. 1870,1877, 64 L.Ed.2d 497 (1980) stated: “. .. a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained. ... We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. The test, therefore, in determining whether a seizure has or has not occurred is under all the circumstances what a reasonable citizen, innocent of crime, would have thought. United States v. Beck, 598 F.2d 497 (9th Cir. 1979). In a situation such as this, some relevant factors to consider are: (1) whether the officers gave the individual the option of accompanying them to the station; (2) whether the individual was specifically told he/she was not under arrest; and (3) whether the individual consented to go to the police station. See, e.g., Bridges v. United States, 392 A.2d 1053 (D.C.App. 1978), cert. denied, 440 U.S. 938, 99 S.Ct. 1286, 59 L.Ed.2d 498 (1979). In bench trials, the scope of appellate review is limited to determining whether the findings made by the trial court are clearly erroneous. Fed.R.Civ.P. 52. The function of this court is not to decide the case de novo. We cannot substitute our judgment for that of the district judge merely because we might give the facts another construction, resolve the ambiguities differently or generally view the facts differently. See, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); United States v. National Ass’n of Real Estate Bds., 339 U.S. 485, 70 S.Ct. 711, 94 L.Ed. 1007 (1950); Shimman v. Frank, 625 F.2d 80 (6th Cir. 1980), rehearing denied 633 F.2d 468 (6th Cir. 1980). The major rationale of this rule of law is that the trier of fact has the opportunity to view the witnesses, to observe their demeanor and to hear what was said in light of how it was said and in light of the totality of the proceedings. Lydle v. United States, 635 F.2d 763, 765, n. 1 (6th Cir. 1981). Here, the district judge found from the evidence: “He [Rohtert] caused the plaintiff Marguerite Betty Smith, Grandma, to be taken into custody.... Grandma was taken to the police station where she was detained for several hours to give a statement covering the events of the night.” M. E. Smith was never told she was not under arrest. To the contrary, she was led to believe that she was. She was not allowed to see friends. She was not allowed to leave or to go to the bathroom unattended. Reasonable people in a similar situation could well conclude that they were not free to leave. The finding by the district judge that M. E. Smith had been unlawfully arrested and detained is amply supported by the record. Turning to the issue of Rohtert’s liability to Smith for the entry into and search of his apartment and the seizure of evidence, the facts of this case also support the conclusion that these acts were unconstitutional. The Fourth Amendment requires a warrant for the police to search an apartment. However, searches may be conducted under special circumstances without a warrant. Examples of such circumstances include when police are responding to an emergency; when they are in hot pursuit of a fleeing felon; when evidence is in the process of being destroyed; when evidence is about to be removed from the jurisdiction; when it is impracticable for the police to obtain a warrant; or, if incident to an arrest, when the search is confined to the immediate vicinity of the arrest. Vale v. Louisiana, 399 U.S. 30, 33-35, 90 S.Ct. 1969, 1971-72, 26 L.Ed.2d 409 (1970). The United States Supreme Court recently dealt with very similar facts in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). In Mincey, within ten minutes of a murder committed during a narcotics raid, homicide detectives arrived at the murder scene and began their investigation. No warrant was ever obtained. In their effort to gather evidence, they searched the entire apartment, opened drawers, pulled up sections of carpet and examined every item in the apartment during a four-day period. In concluding that a murder scene exception to the Fourth Amendment is inconsistent with the Fourth and Fourteenth Amendment, the Court, at 392-394, 98 S.Ct. at 2413-2414, stated: “... [WJhen the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises.... And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities.... But a warrantless search must be ‘strictly circumscribed by the exigencies which justify its initiation,’ Terry v. Ohio, 392 U.S., at 25-26 [88 S.Ct. at 1882], and it simply cannot be contended that this search was justified by any emergency threatening life or limb. All the persons in Mincey’s apartment had been located before the investigating homicide officers arrived there and began their search.... ****** Except for the fact that the offense under investigation was a homicide, there were no exigent circumstances in this case ...” This language compels a finding of liability in this appeal. All the persons in Smith’s apartment had been located before Rohtert arrived. The only victim of the attack was being taken for emergency hospital care. The attacker was known and presumably presented no further danger. As in Mincey, there was no indication that any special circumstance existed which would have allowed the warrantless entry into and the search and seizure of Smith’s apartment. In Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), the United States Supreme Court held that a burning building presented an exigent circumstance. The firemen’s reentry into the burnt building a few hours later was allowable as a continuation of the first entry when necessitated by darkness, steam and smoke. But subsequent reentries were invalid, since these were conducted with neither valid warrants nor consent and were detached from the initial exigency and warrantless entry. Tyler also supports the trial court’s finding of liability in this action. Since there was no initial exigency to allow the search, the police were required to obtain a warrant or consent. They obtained neither, thus rendering the search and seizure invalid. Although Rohtert did not personally commit all the acts depriving appellees of their rights, he is nonetheless liable for the deprivation he caused. Rohtert personally participated in the search and, by his own admission, he was in charge of the investigation. In that capacity, he ordered the detention of M. E. Smith and did not limit the scope of the search of Smith’s apartment. When one officer with authority directs his subordinates to interfere with the civil rights of another, that officer is an active participant in the interference and thus can be held liable for the subordinates’ actions. This view is mandated by the language of the statute. 42 U.S.C. § 1983 reads in pertinent part: “Every person who ... subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the person injured ...” We agree with the dissent at page 232: “Police supervisory officers cannot be held liable for failure to prevent misconduct by subordinate[s] absent a showing of direct responsibility for the improper action.” Here, however, the district judge specifically found that Rohtert was directly responsible for and personally participated in the deprivation of the Smiths’ constitutional rights. He both subjected and caused the appellees to be subjected to the deprivation of their civil rights and is thus liable under section 1983. See, Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Coffy v. Multi-County Narcotics Bureau, 600 F.2d 570 (6th Cir. 1979); Henzel v. Gerstein, 608 F.2d 654 (5th Cir. 1979); Maclin v. Paulson, 627 F.2d 83 (7th Cir. 1980); May v. Enomoto, 633 F.2d 164 (9th Cir. 1980); Black v. Stephens, 662 F.2d 181 (3rd Cir. 1981). Cases involving claims against non-participating supervisory officials for failure in their supervisory and training functions are not applicable. Wilson v. Beebe, 612 F.2d 275 (6th Cir. 1980). Even nonsupervisory officers who are present at the scene of a violation of another’s civil rights and who fail to stop the violation can be liable under section 1983. Bruner v. Dunaway, 684 F.2d 422 (6th Cir. 1982); Smith v. Ross, 482 F.2d 33 (6th Cir. 1973); Putnam v. Gerloff, 639 F.2d 415 (8th Cir. 1981); Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972). Rohtert was present while the other officers unlawfully searched the apartment and thereby violated the Smiths’ rights. The dissent terms it “almost unbelievable” that Rohtert should be found liable for an unlawful entry and search and seizure, when he did not order the presence of the other officers at the apartment. The district court found that Rohtert entered the apartment unlawfully. This view of the evidence is not clearly erroneous and is amply supported by the evidence. We agree with this finding. It makes no difference that other officers arrived before Rohtert and entered unlawfully. Rohtert is liable for his unlawful entry, which was not made lawful by the prior unlawful entry of the others. Furthermore, although Rohtert might not have ordered the presence of the others, the evidence amply supports the finding of the district judge that Rohtert directed the other officers after he arrived. He admitted at the trial under oath that upon his arrival he was the officer in charge of the investigation. See, Supp. App., p. 34: “Q And on the night in question, May 24th, 1975, is it not correct that you were a homicide officer, in the Detective Division, and you were in charge of the investigation at the Zip Smith Hotel? A Yes, sir.” The evidence further shows that Rohtert instructed and directed the identification officers, who did what Rohtert ordered. See, Supp. App., p. 35: “Q Did you instruct them [the identification officers]? Officer Rohtert, did you instruct and direct officers of the ID Division to what you have called ... scene preservation? A Yes, Sir.” See also, Supp. App., pp. 36, 48, 70 and 71. Moreover, he admitted to personally searching the apartment. See, Supp. App., 6, 67. Rohtert entered unlawfully without a warrant, he personally searched the apartment, he directed others to unlawfully search and seize evidence, and he illegally arrested M. E. Smith. For these actions, Rohtert is liable. We do not hold him liable under respondeat superior, which does not apply in section 1983 actions. Wilson v. Beebe, 612 F.2d 275 (6th Cir. 1980); Hays v. Jefferson County, Kentucky, 668 F.2d 869 (6th Cir. 1982), rehearing denied 673 F.2d 152 (6th Cir. 1982). See also, Sims v. Adams, 537 F.2d 829 (5th Cir. 1976). With respect to defendant’s claim of qualified immunity, the district judge made a specific finding that the officers involved knew their actions to be improper; that they were not performing routine or normal police procedure; that they had “ulterior” motives in undertaking a warrantless, unconstitutional search and that no probable cause existed for their conduct. The record supports these findings. Such conduct clearly violated constitutional rights of plaintiffs, which a reasonably prudent person would have known, and justifies the conclusion of the district judge that defendants were not entitled to a qualified or “good faith” immunity. Harlow v. Fitzgerald, - U.S. -, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). II. DAMAGES The determination of the amount of damages to be awarded is left to the discretion and good judgment of the fact finder as guided by the facts of the particular case. Tullos v. Corley, 337 F.2d 884 (6th Cir. 1964). This concept has been specifically applied in section 1983 cases for both punitive and compensatory damages. The court in Busche v. Burkee, 649 F.2d 509, 520 (7th Cir.) cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981), said it most concisely: “As with compensatory damages, the award of punitive damages is within the discretion of the trial court. The allowance of such damages inherently involves an evaluation of the nature of the conduct in question, the wisdom of some form of pecuniary punishment, and the advisability of a deterrent. Therefore, the infliction of such damages, and the amount thereof when inflicted, are of necessity within the discretion of the trier of fact. Stolberg v. Members of the Board of Trustees for the State Colleges of Connecticut, 474 F.2d 485, 489 (2d Cir. 1973) (quoting Lee v. Southern Home Sites Corp., 429 F.2d 290, 294 (5th Cir. 1970).” See also, Basista v. Weir, 340 F.2d 74 (3d Cir. 1965); Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978) (“general principles of damages apply to a civil rights action”). In Smith v. Manausa, 535 F.2d 353 (6th Cir. 1976), this court held that in bench trials, awards of compensatory and punitive damages are findings of fact which are governed by Fed.R.Civ.P. 52(a). This rule reads in pertinent part: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witness.” Having set forth the appropriate standard of review, we now apply it to each damage award individually. A. Compensatory Damages. The basic purpose of a section 1983 damages award is to compensate persons for injuries caused by the deprivation of their constitutional rights. Carey v. Piphus, 435 U.S. 247, 254, 98 S.Ct. 1042, 1047, 55 L.Ed.2d 252 (1978) and the cases cited therein. In guiding lower courts as to which injuries are compensable, the Carey court at 264 states that emotional distress caused by a deprivation is compensable under section 1983. The Seventh Circuit in Hostrop v. Bd. of Jr. College Dist. No. 515, 523 F.2d 569, 579-80 (7th Cir. 1975), cert. denied, 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976), held that, although the amount of damages for the deprivation of an intangible constitutional right cannot be determined by reference to an objective standard, such as pecuniary loss, non-punitive damages may be awarded. These damages may be special and the trial court should consider the following factors in making its award: the nature of the constitutional deprivation, the magnitude of the mental distress and humiliation suffered by the plaintiff, and any other injury caused as a result of being deprived of federally protected rights. In Konczak v. Tyrrell, 603 F.2d 13 (7th Cir. 1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980), a case factually similar to the one presently before the court, the Seventh Circuit upheld awards of $12,500 in compensatory damages to a husband and wife, although they proved only $576 in lost wages. In that section 1983 action, the husband had been unlawfully arrested, the wife unlawfully detained, and their dwelling unlawfully searched with evidence unlawfully seized. The court rejected the argument that there was no proof of actual damages and pointed to “less quantifiable damages in the form of mental distress, humiliation, loss of reputation, and other general pain and suffering resulting from the arrest, detention, search and seizure, imprisonment, confinement to a mental institution, and prosecution of three criminal complaints.” Id. at 17. The importance of taking into account these tangible factors is seen in another section 1983 case, Baskin v. Parker, 602 F.2d 1205 (5th Cir. 1979). In Baskin, the court reversed the district court’s damage award and, on remand, required that the district court award damages for humiliation and emotional distress. In Vetters v. Berry, 575 F.2d 90 (6th Cir. 1978), this court upheld a jury award of $1,040 in compensatory damages and two awards of punitive damages for $25,000 and $10,000 in a section 1983 action. Plaintiff Vetters had been peacefully assembled, then was ordered to go home, assaulted and beaten, unlawfully searched, arrested and held in custody, and later unlawfully charged. In determining whether the awards were excessive, this court quoted Judge Robert Taylor in Gaston v. Gibson, 328 F.Supp. 3 (E.D.Tenn.1969). Gaston was a Civil Rights Act claim involving injuries inflicted on a 17-year-old college student during the course of an alleged arrest. Plaintiff Gaston’s medical bills were $736.60. In sustaining awards of $10,000 compensatory damages and $30,000 punitive damages, Judge Taylor stated: “Each defendant’s main contention is that the verdict of $10,000.00 compensatory and $30,000.00 punitive damages is excessive and shows prejudice by the jury. There are several civil rights cases where verdicts were less than a total of $10,-000.00. However, in suits where punitive damages are proper, there have been larger verdicts. In Butts v. Curtis Publishing Company, 225 F.Supp. 916 (N.D. Ga., 1964), a verdict of $400,000.00 punitive was held proper in a libel and slander case. In Bucher v. Krause, 200 F.2d 576, 587 (C.A.7, 1953), $100,000.00 was held proper when a gunshot wound caused serious and permanent damage to plaintiff’s buttocks. In Reynolds v. Pegler, 223 F.2d 429 (C.A.2, 1955) $1.00 compensatory damages and $175,000.00 punitive damages in a libel and slander case were approved. In addition to obvious common law torts defendants committed, the entire procedure for handling juvenile offenders in Tennessee was disregarded. T.C.A. §§ 37-250, 37-251, 37-252. Even procedural rights given adult offenders were not observed. T.C.A. § 40-806. The conduct of defendants showed disregard for procedural safeguards which our Anglo-American system has established. This court is reluctant to invade the particular province of the jury in evaluating the value of civil rights. Collum v. Butler, 288 F.Supp. 918 (N.D.Ill.1968). The shocking conduct shown rebuts any inference of prejudice and passion in the jury’s verdict. No formula exists to determine with precision compensatory damages. The amount is left to the sound discretion of the fact finder. Considering the evidence in the present case in the light most favorable to the plaintiffs, the awards of compensatory damages were well within the proofs. B. Punitive Damages. While compensatory damages, as the name reflects, are to compensate the plaintiff for injuries suffered, “[pjunitive damages have been held to be allowed on the basis of punishment of the wrongdoer, not so much on the nature and extent of the injury as on the ‘oppression of the party who does the injury.’ Johnson v. Husky Industries, Inc., 536 F.2d 645, 650 (6th Cir. 1976).” Vetters at 96. The same factors discussed above are relevant in the determination of the punitive damages. Upon review, the facts herein recited support the fact finder’s conclusion and considered judgment that Rohtert’s actions were in fact willful thus justifying the awards of punitive damages. In all the cases cited herein, and in most others, punitive awards have been much higher than the compensatory awards. Here the punitive award was less. The district judge used considerable restraint in his determination of the punitive amount. Rohtert maintains that he is entitled to the defense of good faith. The trial court, however, specifically found that he was not so entitled. We agree. The police were not performing routine or normal police procedures. Rohtert’s duty was to properly investigate the shooting. But he did far more than just investigate. He ordered others and participated himself in an unconstitutional search and seizure and caused an unconstitutional arrest. These facts are amply supported by the evidence in the record before the court. In conclusion, the awards of both the compensatory and punitive damages are affirmed. III. ATTORNEY FEES AND COSTS By the language of 42 U.S.C. § 1988, Congress provided that an award of attorney fees to prevailing parties in actions brought pursuant to section 1983 is within the sound discretion of the district court. However, the court’s discretion is narrow. The prevailing party should “ordinarily recover an attorney’s fees unless special circumstances would render such an award unjust.” Northcross v. Board of Ed. of Memphis City Schools, 611 F.2d 624, 633 (6th Cir. 1979), cert. denied, 447, U.S. 911, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980), citing the Senate Report No. 94-1011, reprinted in 1976 U.S.Code Cong. & Admin.News, p. 5908. See, Dawson v. Pastrick, 600 F.2d 70, 79 (7th Cir. 1979) (“a prevailing plaintiff should receive fees almost as a matter of course.”). Cf., Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968.) Smith and M. E. Smith have prevailed in this action and are thus entitled to an award of attorney fees. No special circumstances exist in this case which would make the award of attorney fees unjust. In Northcross at 642, to determine the amount of the award, “[w]e conclude[d] that an analytical approach, grounded in the number of hours expended on the case, will take into account all the relevant factors, and will lead to a reasonable result.” Here, the district judge, in a three-page detailed memorandum, set forth how the award was computed. He began by reviewing some of the practical and legal problems faced by the attorneys in preparing this case. He noted such things as the unpopularity of suits against police officers, the difficulty in getting facts and evidence, the necessity for the number of firms involved, and the computation of the time involved. He then used the number of hours and the attorneys’ normal billing rates as a basis to compute the award. As stated in Northcross at 638, the court should look at the fair market value of the services rendered in determining the level of compensation. This was done. The trial judge found that the hourly billing rates charged by the attorneys were “slightly less than those customarily charged in the local community for such services.” Thus, he concluded the fair market value must be more or equal to these rates. No evidence was offered to the contrary. The trial judge further deducted five percent to adjust for “some slight overlapping of effort” among the attorneys. This was proper. He also properly allowed reimbursement for the time of clerks, less than a quarter of which was allocated to Rohtert. Rohtert offered no evidence that the number of hours was unreasonable. In conclusion, we find the findings of fact, the conclusions of law and the awards of compensatory damages, punitive damages and the attorney fees and costs all proper. For the above reasons, the judgment of the district court is affirmed. We agree with the District Court that the subjective intention of the DEA agent in this case to detain the respondent, had she attempted to leave, is irrelevant except insofar as that may have been conveyed to the respondent.” . Other courts have stated the test somewhat differently: whether the award is so high as to shock the judicial conscience and constitute a denial of justice. Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978). See, Stengel v. Belcher, 522 F.2d 438 (6th Cir. 1975), cert. dismissed, 429 U.S. 118, 97 S.Ct. 514, 50 L.Ed.2d 269 (1976). Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42? Answer with a number. Answer:

sc_petitionerstate

41

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. OHIO v. WYANDOTTE CHEMICALS CORP. et al. No. 41, Orig. Argued January 18, 1971 Decided March 23, 1971 HarlaN, J., delivered the opinion of the Court, in which Burger, C. J., and Black, BreNNAN, Stewart, White, Marshall, and BlackmuN, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 505. Paul W. Brown, Attorney General of Ohio, argued the cause and filed a brief for plaintiff. John M. Moelmann argued the cause for defendant Wyandotte Chemicals Corp. With him on the briefs were Thomas J. Weithers and Milton F. Mallender. Ian W. Outerbridge, by special leave of Court, argued the cause for defendant Dow Chemical Co. of Canada, Ltd. With him on the briefs was Richard W. Galiher. Harley J. McNeal argued the cause and filed briefs for defendant Dow Chemical Co. Peter L. Strauss argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Griswold, Assistant Attorney General Kashiwa, and James R. Moore. Frank J. Kelley, Attorney General, Robert E. Deren-goski, Solicitor General, and M. Robert Carr, Assistant Attorney General, filed a brief for the State of Michigan as amicus curiae. Me. Justice Harlan delivered the opinion of the Court. By motion for leave to file a bill of complaint, Ohio seeks to invoke this Court’s original jurisdiction. Because of the importance and unusual character of the issues tendered we set the matter for oral argument, inviting the Solicitor General to participate and to file a brief on behalf of the United States, as amicus curiae. For reasons that follow we deny the motion for leave to file. The action, for abatement of a nuisance, is brought on behalf of the State and its citizens, and names as defendants Wyandotte Chemicals Corp. (Wyandotte), Dow Chemical Co. (Dow America), and Dow Chemical Company of Canada, Ltd. (Dow Canada). Wyandotte is incorporated in Michigan and maintains its principal office and place of business there. Dow America is incorporated in Delaware, has its principal office and place of business in Michigan, and owns all the stock of Dow Canada. Dow Canada is incorporated, and does business, in Ontario. A majority of Dow Canada’s directors are residents of the United States. The complaint alleges that Dow Canada and Wyan-dotte have each dumped mercury into streams whose courses ultimately reach Lake Erie, thus contaminating and polluting that lake’s waters, vegetation, fish, and wildlife, and that Dow America is jointly responsible for the acts of its foreign subsidiary. Assuming the State’s ability to prove these assertions, Ohio seeks a decree: (1) declaring the introduction of mercury into Lake Erie’s tributaries a public nuisance; (2) perpetually enjoining these defendants from introducing mercury into Lake Erie or its tributaries; (3) requiring defendants either to remove the mercury from Lake Erie or to pay the costs of its removal into a fund to be administered by Ohio and used only for that purpose; (4) directing defendants to pay Ohio monetary damages for the harm done to Lake Erie, its fish, wildlife, and vegetation, and the citizens and inhabitants of Ohio. Original jurisdiction is said to be conferred on this Court by Art. Ill of the Federal Constitution. Section 2, cl. 1, of that Article, provides: “The judicial Power shall extend ... to Controversies . . . between a State and Citizens of another State . . . and between a State . . . and foreign . . . Citizens or Subjects.” Section 2, cl. 2, provides: “In all Cases ... in which a State shall be Party, the supreme Court shall have original Jurisdiction.” Finally, 28 U. S. C. § 1251 (b) provides: “The Supreme Court shall have original but not exclusive jurisdiction of ... (3) All actions or proceedings by a State against the citizens of another State or against aliens.” While we consider that Ohio’s complaint does state a cause of action that falls within the compass of our original jurisdiction, we have concluded that this Court should nevertheless decline to exercise that jurisdiction. I That we have jurisdiction seems clear enough. Beyond doubt, the complaint on its face reveals the existence of a genuine “case or controversy” between one State and citizens of another, as well as a foreign subject. Diversity of citizenship is absolute. Nor is the nature of the cause of action asserted a bar to the exercise of our jurisdiction. While we have refused to entertain, for example, original actions designed to exact compliance with a State's penal laws, Wisconsin v. Pelican Ins. Co., 127 U. S. 265 (1888), or that seek to embroil this tribunal in “political questions,” Mississippi v. Johnson, 4 Wall. 475 (1867); Georgia v. Stanton, 6 Wall. 50 (1868), this Court has often adjudicated controversies between States and between a State and citizens of another State seeking to abate a nuisance that exists in one State yet produces noxious consequences in another. See Missouri v. Illinois, 180 U. S. 208 (1901) (complaint filed), 200 U. S. 496 (1906) (final judgment); Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907); New York v. New Jersey, 256 U. S. 296 (1921); New Jersey v. New York City, 283 U. S. 473 (1931). In short, precedent leads almost ineluctably to the conclusion that we are empowered to resolve this dispute in the first instance. Ordinarily, the foregoing would suffice to settle the issue presently under consideration: whether Ohio should be granted leave to file its complaint. For it is a time-honored maxim of the Anglo-American common-law tradition that a court possessed of jurisdiction generally must exercise it. Cohens v. Virginia, 6 Wheat. 264, 404 (1821). Nevertheless, although it may initially have been contemplated that this Court would always exercise its original jurisdiction when properly called upon to do so, it seems evident to us that changes in the American legal system and the development of American society have rendered untenable, as a practical matter, the view that this Court must stand willing to adjudicate all or most legal disputes that may arise between one State and a citizen or citizens of another, even though the dispute may be one over which this Court does have original jurisdiction. As our social system has grown more complex, the States have increasingly become enmeshed in a multitude of disputes with persons living ' outside their borders. Consider, for example, the frequency with which States and nonresidents clash over the application of state laws concerning taxes, motor vehicles, decedents’ estates, business torts, government contracts, and so forth. It would, indeed, be anomalous were this Court to be held out as a potential principal forum for settling such controversies. The simultaneous development of “long-arm jurisdiction” means, in most instances, that no necessity impels us to perform such a role. And the evolution of this Court’s responsibilities in the American legal system has brought matters to a point where much would be sacrificed, and little gained, by our exercising original jurisdiction over issues bottomed on local law. This Court’s paramount responsibilities to the national system lie almost without exception in the domain of federal law. As the impact on the social structure of federal common, statutory, and constitutional law has expanded, our attention has necessarily been drawn more and more to such matters. We have no claim to special competence in dealing with the numerous conflicts between States and nonresident individuals that raise no serious issues of federal law. This Court is, moreover, structured to perform as an appellate tribunal, ill-equipped for the task of factfinding and so forced, in original cases, awkwardly to play the role of factfinder without actually presiding over the introduction of evidence. Nor is the problem merely our lack of qualifications for many of these tasks potentially within the purview of our original jurisdiction; it is compounded by the fact that for every case in which we might be called upon to determine the facts and apply unfamiliar legal norms we would unavoidably be reducing the attention we could give to those matters of federal law and national import as to which we are the primary overseers. Thus, we think it apparent that we must recognize “the need [for] the exercise of a sound discretion in order to protect this Court from an abuse of the opportunity to resort to its original jurisdiction in the enforcement by States of claims against citizens of other States.” Massachusetts v. Missouri, 308 U. S. 1, 19 (1939), opinion of Chief Justice Hughes. See also Georgia v. Pennsylvania R. Co., 324 U. S. 439, 464-465 (1945), and id., at 469-471 (dissenting opinion), We believe, however, that the focus of concern embodied in the above-quoted statement of Chief Justice Hughes should be somewhat refined. In our opinion, we may properly exercise such discretion, not simply to shield this Court from noisome, vexatious, or unfamiliar tasks, but also, and we believe principally, as a technique for promoting and furthering the assumptions and value choices that underlie the current role of this Court in the federal system. Protecting this Court per se is at best a secondary consideration. What gives rise to the necessity for recognizing such discretion is pre-eminently the diminished societal concern in our function as a court of original jurisdiction and the enhanced importance of our role as the final federal appellate court. A broader view of the scope and purposes of our discretion would inadequately take account of the general duty of courts to exercise that jurisdiction they possess. Thus, at this stage we go no further than to hold that, as a general matter, we may decline to entertain a complaint brought by a State against the citizens of another State or country only where we can say with assurance that (1) declination of jurisdiction would not disserve any of the principal policies underlying the Article III jurisdictional grant and (2) the reasons of practical wisdom that persuade us that this Court is an inappropriate forum are consistent with the proposition that our discretion is legitimated by its use to keep this aspect of the Court’s functions attuned to its other responsibilities. II In applying this analysis to the facts here presented, we believe that the wiser course is to deny Ohio’s motion for leave to file its complaint. A Two principles seem primarily to have underlain conferring upon this Court original jurisdiction over cases and controversies between a State and citizens of another State or country. The first was the belief that no State should be compelled to resort to the tribunals of other States for redress, since parochial factors might often lead to the appearance, if not the reality, of partiality to one’s own. Chisholm v. Georgia, 2 Dall. 419, 475-476 (1793); Wisconsin v. Pelican Ins. Co., 127 U. S., at 289. The second was that a State, needing an alternative forum, of necessity had to resort to this Court in order to obtain a tribunal competent to exercise jurisdiction over the acts of nonresidents of the aggrieved State. Neither of these policies is, we think, implicated in this lawsuit. The courts of Ohio, under modern principles of the scope of subject matter and in personam jurisdiction, have a claim as compelling as any that can be made out for this Court to exercise jurisdiction to adjudicate the instant controversy, and they would decide it under the same common law of nuisance upon which our determination would have to rest. In essence, the State has charged Dow Canada and Wyandotte with the commission of acts, albeit beyond Ohio’s territorial boundaries, that have produced and, it is said, continue to produce disastrous effects within Ohio’s own domain. While this Court, and doubtless Canadian courts, if called upon to assess the validity of any decree rendered against either Dow Canada or Wyandotte, would be alert to ascertain whether the judgment rested upon an even-handed application of justice, it is unlikely that we would totally deny Ohio’s competence to act if the allegations made here are proved true. See, e. g., International Shoe Co. v. Washington, 326 U. S. 310 (1945); United States v. Aluminum Co. of America, 148 F. 2d 416 (CA2 1945); ALI, Restatement of the Foreign Relations Law of the United States 2d, § 18. And while we cannot speak for Canadian courts, we have been given no reason to believe they would be less receptive to enforcing a decree rendered by Ohio courts than one issued by this Court. Thus, we do not believe exercising our discretion to refuse to entertain this complaint would undermine any of the purposes for which Ohio was given the authority to bring it here. B Our reasons for thinking that, as a practical matter, it would be inappropriate for this Court to attempt to adjudicate the issues Ohio seeks to present are several. History reveals that the course of this Court’s prior efforts to settle disputes regarding interstate air and water pollution has been anything but smooth. In Missouri v. Illinois, 200 U. S. 496, 520-522 (1906), Justice Holmes was at pains to underscore the great difficulty that the Court faced in attempting to pronounce a suitable general rule of law to govern such controversies. The solution finally grasped was to saddle the party seeking relief with an unusually high standard of proof and the Court with the duty of applying only legal principles “which [it] is prepared deliberately to maintain against all considerations on the other side,” id., at 521, an accommodation which, in cases of this kind, the Court has found necessary to maintain ever since. See, e. g., New York v. New Jersey, 256 U. S., at 309. Justice Clarke’s closing plea in New York v. New Jersey, id., at 313, strikingly illustrates the sense of futility that has accompanied this Court’s attempts to treat with the complex technical and political matters that inhere in all disputes of the kind at hand: “We cannot withhold the suggestion, inspired by the consideration of this case, that the grave problem of sewage disposal presented by the large and growing populations living on the shores of New York Bay is one more likely to be wisely solved by cooperative study and by conference and mutual concession on the part of representatives of the States so vitally interested in it than by proceedings in any court however constituted.” The difficulties that ordinarily beset such cases are severely compounded by the particular setting in which this controversy has reached us. For example, the parties have informed us, without contradiction, that a number of official bodies are already actively involved in regulating the conduct complained of here. A Michigan circuit court has enjoined Wyandotte from operating its mercury cell process without judicial authorization. The company is, moreover, currently utilizing a recycling process specifically approved by the Michigan Water Resources Commission and remains subject to the continued scrutiny of that agency. Dow Canada reports monthly to the Ontario Water Resources Commission on its compliance with the commission’s order prohibiting the company from passing any mercury into the environment. Additionally, Ohio and Michigan are both participants in the Lake Erie Enforcement Conference, convened a year ago by the Secretary of the Interior pursuant to the Federal Water Pollution Control Act, 62 Stat. 1155, as amended. The Conference is studying all forms and sources of pollution, including mercury, infecting Lake Erie. The purpose of this Conference is to provide a basis for concerted remedial action by the States or, if progress in that regard is not rapidly made, for corrective proceedings initiated by the Federal Government. 33 U. S. C. §466g (1964 ed. and Supp. V). And the International Joint Commission, established by the Boundary Waters Treaty of 1909 between the United States and Canada, 36 Stat. 2448, issued on January 14, 1971, a comprehensive report, the culmination of a six-year study carried out at the request of the contracting parties, concerning the contamination of Lake Erie. That document makes specific recommendations for joint programs to abate these environmental hazards and recommends that the IJC be given authority to supervise and coordinate this effort. In view of all this, granting Ohio’s motion for leave to file would, in effect, commit this Court’s resources to the task of trying to settle a small piece of a much larger problem that many competent adjudicatory and conciliatory bodies are actively grappling with on a more practical basis. The nature of the case Ohio brings here is equally disconcerting. It can fairly be said that what is in dispute is not so much the law as the facts. And the factfinding process we are asked to undertake is, to say the least, formidable. We already know, just from what has been placed before us on this motion, that Lake Erie suffers from several sources of pollution other than mercury; that the scientific conclusion that mercury is a serious water pollutant is a novel one; that whether and to what extent the existence of mercury in natural waters can safely or reasonably be tolerated is a question for which there is presently no firm answer; and that virtually no published research is available describing how one might extract mercury that is in fact contaminating water. Indeed, Ohio is raising factual questions that are essentially ones of first impression to the scientists. The notion that appellate judges, even with the assistance of a most competent Special Master, might appropriately undertake at this time to unravel these complexities is, to say the least, unrealistic. Nor would it suffice to impose on Ohio an unusually high standard of proof. That might serve to mitigate our personal difficulties in seeking a just result that comports with sound judicial administration, but would not lessen the complexity of the task of preparing responsibly to exercise our judgment, or the serious drain on the resources of this Court it would entail. Other factual complexities abound. For example, the Department of the Interior has stated that eight American companies are discharging, or have discharged, mercury into Lake Erie or its tributaries. We would, then, need to assess the business practices and relative culpability of each to frame appropriate relief as to the one now before us. Finally, in what has been said it is vitally important to stress that we are not called upon by this lawsuit to resolve difficult or important problems of federal law and that nothing in Ohio’s complaint distinguishes it from any one of a host of such actions that might, with equal justification, be commenced in this Court. Thus, entertaining this complaint not only would fail to serve those responsibilities we are principally charged with, but could well pave the way for putting this Court into a quandary whereby we must opt either to pick and choose arbitrarily among similarly situated litigants or to devote truly enormous portions of our energies to such matters. To sum up, this Court has found even the simplest sort of interstate pollution case an extremely awkward vehicle to manage. And this case is an extraordinarily complex one both because of the novel scientific issues of fact inherent in it and the multiplicity of governmental agencies already involved. Its successful resolution would require primarily skills of factfinding, conciliation, detailed coordination with — and perhaps not infrequent deference to — other adjudicatory bodies, and close supervision of the technical performance of local industries. We have no claim to such expertise or reason to believe that, were we to adjudicate this case, and others like it, we would not have to reduce drastically our attention to those controversies for which this Court is a proper and necessary forum. Such a serious intrusion on society’s interest in our most deliberate and considerate performance of our paramount role as the supreme federal appellate court could, in our view, be justified only by the strictest necessity, an element which is evidently totally lacking in this instance. Ill What has been said here cannot, of course, be taken as denigrating in the slightest the public importance of the underlying problem Ohio would have us tackle. Reversing the increasing contamination of our environment is manifestly a matter of fundamental import and utmost urgency. What is dealt with above are only considerations respecting the appropriate role this Court can assume in efforts to eradicate such environmental blights. We mean only to suggest that our competence, is necessarily limited, not that our concern should be kept within narrow bounds. Ohio’s motion for leave to file its complaint is denied without prejudice to its right to commence other appropriate judicial proceedings. It is so ordered. The matter is well treated in the Solicitor General’s amicus brief, which satisfactorily deals with a number of considerations which we find it unnecessary to discuss in this opinion. While we possess jurisdiction over Dow America and Wyandotte simply on the basis of their citizenship, the problem with respect to Dow Canada is quite different with regard to two major issues: whether that foreign corporation has “contacts” of the proper sort sufficient to bring it personally before us, and whether service of process can lawfully be made upon Dow Canada. Were we to decide to entertain this complaint, however, it seems reasonably clear that the better course would be to reserve this aspect of the jurisdictional issue pending ascertainment of additional facts, rather than to resolve it now. Thus, for purposes of ruling on Ohio’s motion for leave to file its complaint, we treat the question of jurisdiction over all three defendants as a unitary one. In our view the federal statute, 28 U. S. C. § 1251 (b) (3), providing that our original jurisdiction in cases such as these is merely concurrent with that of the federal district courts, reflects this same judgment. However, this particular case cannot be disposed of by transferring it to an appropriate federal district court since this statute by itself does not actually confer jurisdiction on those courts, see C. Wright, Federal Courts 502 (2d ed. 1970), and no other statutory jurisdictional basis exists. The fact that there is diversity of citizenship among the parties would not support district court jurisdiction under 28 U. S. C. § 1332 because that statute does not deal with cases in which a State is a party. Nor would federal question jurisdiction exist under 28 U. S. C. § 1331. So far as it appears from the present record, an action such as this, if otherwise cognizable in federal district court, would have to be adjudicated under state law. Erie R. Co. v. Tompkins, 304 U. S. 64 (1938). Justice Holmes’ analysis appears to rest, in part, on the fact that in the case before him the conduct complained of was the act of a sovereign State. However, we see no reason why the determination to impose a high standard of proof would not be equally compelling in a case such as the one before us. Arguably, the necessity for applying virtually unexceptionable legal principles does not obtain where conduct never previously subjected to state law scrutiny is involved, but this is not the case here. See text, infra. Question: What state is associated with the petitioner? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:

songer_respond1_3_2

G

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. FIRST NATIONAL BANK OF LEXINGTON, TENNESSEE, Plaintiff-Appellant, v. James C. SANDERS, Administrator, Small Business Administration, Defendant-Appellee. No. 90-5717. United States Court of Appeals, Sixth Circuit. Argued July 25, 1991. Decided Aug. 19, 1991. J. Alan Hanover (briefed), Stephen R. Leffler (argued and briefed), Hanover, Walsh, Jalenak & Blair, Memphis, Tenn., for plaintiff-appellant. W. Hickman Ewing, Jr., U.S. Atty., Joe A. Dycus, Asst. U.S. Atty., Office of the U.S. Atty., Memphis, Tenn., Steve Cramer, Omaha, Neb., Mark K. Stephens, Gary Fox (argued and briefed), Washington, D.C., for defendant-appellee. Before GUY and RYAN, Circuit Judges, and KRUPANSKY, Senior Circuit Judge. This decision was originally issued as an "unpublished decision” filed on August 19, 1991. On September 27, 1991, the court entered an order designating the opinion as one recommended for full text publication. PER CURIAM. Plaintiff, First National Bank of Lexington, Tennessee (FNBL), appeals the district court’s grant of summary judgment in favor of defendant, James Sanders, Administrator, Small Business Administration (SBA), on its claim for interest payments on a series of loans guaranteed by defendant. For the reasons below, we affirm. I. This litigation involves two interrelated cases arising out of the purchase by FNBL of a series of six commercial loans with fluctuating interest rates from primary lenders. Each of these loans were secured by a guarantee from the SBA and consisted of a package which generally included a note, a loan authorization, a Secondary Participation Guaranty Agreement, and an assignment from the prior holder. The Secondary Participation Guaranty Agreement is drafted by the SBA and governs the relationship between the SBA and any subsequent holder of the note, which in the present case is FNBL. In particular, these agreements govern the repurchase procedure of the note in the event that a borrower defaults and the SBA must guarantee the loan. In each of the six loan payments at issue in the present case, the FNBL was the holder of an SBA guaranteed loan, the borrower defaulted, and the SBA repurchased the loan from FNBL. The only item in dispute is the rate of interest on these loans which the SBA must pay to FNBL. The documentation for the loans states that the fluctuating interest rate was to freeze “as of the date of default” or, in two of the cases, “as of the initial date of default.” According to the SBA, the meaning of this language is to be interpreted under the agency’s Standard Operating Procedures 50-50-3A, 1179(e)(4)(A), meaning the date of the first uncured default. In contrast, FNBL claims that the date of default should be the first date upon which a partial or full payment became past due and was not made. In repurchasing the guaranteed loans from FNBL, the SBA treated five of the loans according to its Standard Operating Procedure, and paid FNBL at a lower interest rate than that which FNBL claimed was owed. In each of these cases, FNBL reserved its right to contest these payments. In the case of the loan relating to T.D. Johnson, the SBA paid FNBL at the higher rate and sued for return of what it claimed was the overpayment of interest. The SBA also deducted from its payment on this loan a “servicing fee” in the amount of $8,200. FNBL counterclaimed for return of the “servicing fee.” FNBL subsequently initiated this suit for payment of the money it says it is entitled to on the basis of the calculations of the payment of these loans at the higher interest rate as well as for return of the servicing fee. All six cases were consolidated. Both sides moved for summary judgment. The district court granted partial summary judgment for the SBA, holding that the date of default is to be interpreted as the SBA states in its Standard Operating Procedure. The case was then referred to a magistrate judge, who subsequently recommended summary judgment be granted in favor of the SBA on FNBL’s claims for interest. It further recommended that judgment be awarded to the SBA in the amount of $20,888.62 in the matter of the T.D. Johnson loan. The district court adopted this recommendation, and it is from this ruling that plaintiff appeals. II. Plaintiff asserts that the defendant has overstepped his authority under the rules governing the SBA’s repurchase of loans. It suggests that while the administrator of the SBA has a certain amount of discretion and is entitled to promulgate rules within the purposes of the Small Business Act of 1958, he must do so under the procedures set forth in the Administrative Procedure Act (APA), 5 U.S.C. § 553(b). To this end, FNBL suggests first, that the SBA’s Standard Operating Procedure regarding loan default dates did not meet the APA procedural requirements because it was adopted without compliance with the notice and hearing requirements of the APA; and second, that the SBA guarantees of the loans should be interpreted according to ordinary commercial business practices, which are consistent with plaintiff’s interpretation of the default language. We find both arguments to be unpersuasive. The regulations governing the SBA’s purchase of loans and the interest rate it pays upon purchase are found in 13 C.F.R. § 120.202-4. This language states, in pertinent part: When SBA purchases its guaranteed share, its payment to the holder of accrued interest to the date of purchase shall be at the rate of interest provided in the note. On those loans with a fluctuating interest rate, the SBA’s payment of accrued interest shall be at that rate in effect at the time of default when a default has occurred, or at the rate in effect at the time of purchase where no default has occurred. The language in each of the loan agreements is in general conformity with this language. In addition, each of the Secondary Participation Guaranty Agreements relating to the loans in question specifically refers to and incorporates the SBA’s Loan Guaranty Agreement which states: “This agreement shall cover only loans duly approved hereafter for guaranty by Lender and SBA subject to SBA’s Rules and Regulations as promulgated from time to time.” In 1983, the SBA adopted the rule at issue in its Standard Operating Procedure. The relevant portion of that rule states: SBA’s rules and regulations provide, as an automatic part of the purchase procedure, that the interest rate on variable rate loans will be “frozen” at the rate outstanding at the time of the first uncured default (date of purchase if no outstanding default). FNBL asserts that the SBA violated section 553 of the APA, by failing to give notice of its proposed rulemaking and failing to offer an opportunity to interested persons to comment on this rule. The language of section 553 states in pertinent part: (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law.... Except when notice or hearing is required by statute, this subsection does not apply— (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issues) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. § 553(b). As the language of section 553(b)(A) makes clear, the statute offers an exception to the notice and hearing requirements for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” Defendant asserts that its Standard Operating Procedure rule falls into this category and therefore requires no notice or public review. We agree. In visiting this general issue previously, this court noted that there is “no bright line that separates the two types of rules[,]” interpretive or legislative. Fried-rich v. Secretary of Health & Human Servs., 894 F.2d 829, 834 (6th Cir.), cert. denied, — U.S. -, 111 S.Ct. 59, 112 L.Ed.2d 34 (1990). We adopted language from the D.C. Circuit, which regularly deals with this type of interpretive question, to assist us in identifying “certain general principles” concerning this area of the law: First, the agency’s own label, while relevant, is not dispositive_ An interpretative rule simply states what the administrative agency thinks the statute means, and only “ ‘reminds’ affected parties of existing duties.” ... On the other hand, if by its action the agency intends to create new law, rights or duties, the rule is properly considered to be a legislative rule. Id. (quoting General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C.Cir.1984), cert. denied, 471 U.S. 1074, 105 S.Ct. 2153, 85 L.Ed.2d 509 (1985). In Friedrich, the issue was whether a ruling by the Secretary of Health and Human Services that a certain medical therapy he determined was not “reasonable and necessary for the diagnosis or treatment” of the claimant’s illness was a legislative rule requiring notice and comment under the APA. This court concluded that the Secretary’s determination “did not represent a departure from a previous evaluation of this medical procedure.” Friedrich, 894 F.2d at 836. It created “no new law,” but only “interprets the statutory language ... as applied to a particular medical service or method of treatment.” Id. at 837. Similarly, in Southern California Edison Co. v. Federal Energy Regulatory Commission, 770 F.2d 779 (9th Cir.1985), the court held that the new regulations pertained to the procedural aspects of FERC’s approval of rates and that a final rule promulgated by FERC establishing those procedures was not subject to the notice and comment requirement of the APA. The court stated: For purposes of the APA, substantive rules are rules that create law. These rules usually implement existing law, imposing general, extrastatutory obligations pursuant to authority properly delegated by Congress. Interpretative rules merely clarify or explain existing law or regulations and go “ ‘to what the administrative officer thinks the statute or regulation means.’ ” Id. at 783 (citations omitted). See also New York v. Lyng, 829 F.2d 346 (2d Cir.1987) (ruling that Secretary of Agriculture’s determination that restaurant allowance for food stamp recipients was income was an interpretive rule exempt from the notice and comment requirement of the APA); Chula Vista City School Dist. v. Bennett, 824 F.2d 1573 (Fed.Cir.1987), cert. denied, 484 U.S. 1042, 108 S.Ct. 774, 98 L.Ed.2d 861 (1988) (holding that a $50 rule used by the Secretary of Education to evaluate applications for Impact Aid by local school districts was not subject to the notice and comment procedures of the APA because it was an interpretive rule, describing “the agency’s view of the meaning of a statute”). FNBL suggests that the proper method for determining whether the Standard Operating Procedure is an interpretative regulation or a legislative rule is the “substantial impact” test, formulated in Pharmaceutical Manufacturers Association v. Finch, 307 F.Supp. 858 (D.Del.1970). In that case, the Pharmaceutical Manufacturers Association sought an injunction against the Secretary of Health and Human Services in an effort to prevent him from relying on regulations promulgating new standards of evidence necessary to demonstrate the effectiveness of drug products and applying those standards retroactively. The court concluded that, because the regulations were “all pervasive,” had a “substantial impact” upon the drug industry, and “prescribed in specific detail, for the first time, the kinds of clinical investigations that will be deemed necessary to establish the effectiveness of existing and future drug products,” it was necessary for the Commissioner to comply with the notice and comment provisions of the APA. Plaintiff also cites to Batterton v. Marshall, 648 F.2d 694 (D.C.Cir.1980). In Batterton, the court held that modification of the Department of Labor’s method of calculating unemployment statistics which trigger emergency job program allocations under the Comprehensive Employment and Training Act, must be promulgated in compliance with the notice procedures under the APA. The court concluded that the changes instituted reflected not simply the future intention of the Department but a change in substantive rights and interests. In applying these holdings to the facts in the instant case, we agree with the district court that the Standard Operating Procedure in question was merely interpretative and did not establish new procedures or rules. Testimony by the SBA’s deputy associate administrator for financial assistance revealed that the SBA had defined “date of default” in the manner described since approximately 1978; it was adopted in the Standard Operating Procedure on October 4, 1983. This rule merely clarifies the language of section 120.202-4 of the Code of Regulations so that this regulation can be applied consistently. It does not “change[ ] existing rights and obligations,” Lyng, 829 F.2d at 353, nor institute a new procedure, as was the case in Batterton and similar cases cited by plaintiff. As the district court noted, “[t]he standard of review of the interpretation of an administrative regulation is strict. The administrative interpretation is of controlling weight, unless it is plainly erroneous or inconsistent with the regulation.” (Citing Udall v. Tollman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Compton v. Tennessee Dep’t. of Pub. Welfare, 532 F.2d 561 (6th Cir.1976)). We do not find the SBA’s interpretation of this administrative regulation to be inconsistent or plainly erroneous. FNBL’s allegations that the SBA’s interpretation of the default language contradicts ordinary commercial and business practices and was instituted by the SBA solely to avoid a disadvantageous interest rate is unsupported. FNBL suggests that it is improper to accept as dispositive the testimony of the SBA’s deputy administrator that the definition of “date of default” is properly reflective of standard commercial practices. However, FNBL offers no evidence of any contrary practice by the SBA or other institutions prior to the transactions involved in the present case. FNBL does cite one case, Gideon v. Administrator, United States Small Business Administration, 630 F.Supp. 822 (D.Me.1986), which purportedly supports its argument. In Gideon, the Maine district court held that the interest rate limitation on direct SBA loans was inapplicable to deferred participation loans. The plaintiff in that case, Erebus, entered into a loan agreement whereby the SBA guaranteed a $270,000 loan by Oxford Bank to Erebus. Gideon executed a primary note on behalf of Erebus to Oxford. The note initially carried an interest rate of 9.5 percent, but was to be adjusted quarterly so as to remain at two percent above the prime rate. The language of the agreement concerning incidence of default was similar to the instant case: “[T]he rate of interest on both the guaranteed and unguaranteed portion thereof shall become fixed at the rate in effect as of the date of default.” Id. at 823. Erebus subsequently defaulted when the rate of interest was at 21.5 percent. The SBA then assigned the promissory note to Oxford and purchased its guaranteed portion of the outstanding principal balance. In accordance with the Loan Authorization Agreement, the SBA continued to charge Erebus the 21.5 percent interest rate that was being charged by Oxford at the time of the default. Id. at 824. Gideon sought a determination that the SBA had charged excessive interest on the Erebus note since the date of default. Gideon argued that continuing to charge the 21.5 percent interest rate put the SBA in conflict with another of its regulations which set a “cap” on the interest that could be charged. The district court resolved the issue in favor of the SBA, finding that the “cap” provision was applicable to direct participation loans but not deferred participation loans. We find no conflict with the holding in Gideon and our decision today. Gideon did not address the issue of cured defaults, nor do the facts indicate that there was an initial default that was subsequently cured. Plaintiff did not challenge the date of the default but rather the SBA’s right to continue to charge the interest rate in effect on that date. AFFIRMED. . Since the initiation of this suit, FNBL has gone into receivership. FNBL moved to delay oral argument to allow the Federal Deposit Insurance Corporation (FDIC), its successor in interest, to intervene. Since that time, FDIC notified the court of its intent not to intervene. Defendant has raised an argument questioning whether FNBL is still a proper party. Although the argument has merit, we have elected to address the merits of the dispute since we fear that the questions raised by this appeal will not go away if a different party is substituted as plaintiff. As to whether there is, in fact, another party that could be substituted for the present plaintiff, we were not presented with a record upon which a determination of that nature could be made. . We note additionally that the substantive impact test cited by plaintiff has been disfavored recently by this and other courts. In Friedrich, 894 F.2d at 836, for instance, this court stated: At an earlier time, substantial impact was treated by a number of courts as an important factor in deciding whether a rule was legislative or interpretative. More recent cases have held that the level of impact on interested parties is not a factor in correctly classifying a rule or regulation. This court recognized the substantial impact argument in State of Ohio [Dep’t of Human Servs. v. United States Dep’t of Health and Human Servs., 862 F.2d [1228] at 1233-34 [6th Cir.1988]], but chose not to make impact a basis for its characterization of the rule it was considering. We think this approach is sound in the present case. Any determination by the Secretary regarding rules for Medicare reimbursement eligibility, regardless of how it is promulgated, will have a substantial impact on a large number of people. The extent of the impact is not an indicative factor in our search for the proper characterization of the national coverage determination. Id. (citation omitted). This analysis is equally applicable to the present case. Notwithstanding the holding of Friedrich, however, we believe that, even if the substantial impact test is employed, the adoption of the regulation in question does not mandate a review under the notice and comment requirements of section 553. . We also note that the interpretation urged by FNBL is highly opportunistic in that it would only urge such a construction when interest rates went down after the first default. If interest rates had risen during the period when a debtor was curing previous defaults, FNBL would not be making the argument it does now. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:

songer_respond1_1_4

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)", specifically "construction". Your task is to determine what subcategory of business best describes this litigant. UNITED STATES of America, Appellant, v. R. H. TAYLOR et al., Appellees. No. 20516. United States Court of Appeals Fifth Circuit. June 22, 1964. Adhered to on Rehearing Sept. 14, 1964. See 336 F.2d 149. Robert E. Hauberg, U. S. Atty., E. R. Holmes, Jr., Asst. U. S. Atty., Jackson, Miss., Alan S. Rosenthal, Stephen B. Swartz, Attys., Dept. of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., for appellant. Vardeman S. Dunn, Jackson, Miss., Bruce C. Aultman, Hattiesburg, Miss., William H. Cox, Jr., Jackson, Miss., Sim-rall, Aultman & Pope, Hattiesburg, Miss., Cox, Dunn & Clark, Jackson, Miss., of counsel, for appellees. Before HUTCHESON and GEWIN, Circuit Judges, and HOOPER, District Judge. HUTCHESON, Circuit Judge. The United States as assignee of its contractor’s claims and demands against a subcontractor for contractual overpay-ments instituted this action for recovery on those claims. An order granting appellee-subcontractor’s motion for summary judgment was entered, and the United States appeals that order. The order was in error. The United States’ motion for summary judgment should have been granted. On this appeal the primary questions before the court are, what law applies to the interpretation of a disputes clause in a subcontract under a contract to perform work on a government project and how such a clause should be interpreted. Peter Keiwit Sons contracted with the United States Government acting through the Atomic Energy Commission for the construction of a gaseous diffusion plant near Portsmouth, Ohio. On March 3, 1953, appellee TaylorWheless entered into a subcontract with Keiwit to remove and grade dirt at the plant site. The subcontract required that payment should be made to the subcontractor on the basis of the number of cubic yards of material acceptably excavated. The amount of material excavated was to be determined by measuring it “in original position from cross-sections taken before stripping and after excavation and computed by the average end area method.” The parties later orally agreed to substitute the load count method for the average end method of material measurement as a practical way of making periodic quantity determinations upon which to base progress payments. The work under the subcontract was completed in November, 1953. Keiwit then computed by the average end area method the work performed by Taylor-Wheless. Based on this computation in November, 1954, Keiwit issued Taylor-Wheless a final pay estimate indicating that payments made by the load count method exceeded those due under the average end area method, after subtracting retainage, by approximately $383,000.00. Taylor-Wheless rejected this estimate as inaccurate. Keiwit requested the Atomic Energy Commission to employ an independent survey group to determine if there was an overpayment. Such a group was employed, and they concluded that under the average end area method the overpayment less retainages amounted to $337,973.52. This computation presented to Taylor-Wheless on July 25, 1955, was also refused as inaccurate. The parties failed to resolve their dispute and Keiwit referred the dispute to the Commission’s General Manager of Oak Ridge Operations under the provisions of the subcontract’s disputes clause. The clause was subsequently amended by agreement between the parties to provide for disputes determination by the Commission. The dispute was, therefore transferred to the Atomic Energy Commission Advisory Board of Contract Appeals (Board). No hearing had been held prior to this transfer. The Board, after a hearing, found that after Keiwit’s initial submission of the dispute, as prescribed by the disputes clause of the contract, Keiwit and Taylor-Wheless agreed to modify the disputes clause by agreeing to submit disputes to the Commission rather than the Manager of Oak Ridge Operations. They further found that Taylor-Wheless and its attorney suggested times and places of hearing, that the chairman set a hear-' ing, that Taylor-Wheless indicated it was preparing for the hearing, agreed to a postponement of the hearing date, requested further postponements of the hearing, and, after failing to negotiate a settlement with Keiwit in December, 1956, objected to the jurisdiction of the Board and withdrew from the proceedings. The Board proceeded to determine the issue as to overpayment under the average end area method of computation. Taylor-Wheless did not participate in the hearing. The Board did consider a document previously presented Keiwit by Taylor-Wheless entitled “Statement in Support of Taylor-Wheless Co.’s Final Estimate”. The document attempted to justify accuracy of the load count computations and attacked the accuracy of the average end area computations made by Keiwit prior to the independent survey. After considering oral and documentary evidence and Keiwit’s brief, the Board found an overpayment in the amount determined by the independent surveyors. They relied on this survey since they found that there was no showing that the final figures reflected inaccurate application of the computation principle called for in the contract, and there was adequate basis in the record for finding that the computations were accurate. This fact finding of an overpayment of $337,973.52 was adopted by the Deputy General Manager of the Atomic Energy Commission on April 8, 1958. On August 4, 1958, the Commission’s Portsmouth Area Manager, as Contracting Officer, determined Keiwit’s overpayment to Taylor-Wheless was an allowable cost and discharged Keiwit from any obligation with respect to government funds advanced for these payments. On August 19, 1958, Keiwit assigned its claims for overpayment against Taylor-Wheless to the United States. The United States instituted this action in the district court praying for judgment in the amount of the disputes award on both the decision of the Board and the underlying claim. Taylor-Wheless moved to dismiss, then moved for summary judgment on the grounds that: withdrawal from the disputes procedure invalidated the award; the Atomic Energy Commission and not the Board was the proper hearing agency; the assignment was invalid and unenforceable; and, finally, the suit constituted a suit on an implied contract and was, therefore, barred by the Mississippi Three Year Statute of Limitations. The United States moved for summary judgment on the grounds that the award and the underlying claim were valid, viable, and enforceable. The court granted the motion of Taylor-Wheless and denied that of the United States. The court held that: the parties had entered into an arbitration agreement; this was a remedial rather than a substantive matter; and the law of Mississippi would apply to the enforcement of the agreement in a suit such as this in which the government claimed as as-signee. Under Mississippi law the court held that “a party has a complete right, to withdraw from arbitration proceedings any time prior to the making of an award”. Therefore, the court reasoned, the award was invalid. Both parties admit that this is an accurate statement, of the law of Mississippi. They both rely on McClendon v. Shutt, 237 Miss. 703, 115 So.2d 740 (1959) and Machine Prod. Co. v. Prairie Local No. 1538, 230 Miss. 809, 94 So.2d 344, 95 So.2d 763 (1957). The government insists, however, that federal law applied to the interpretation of subcontracts executed under government contracts and that, under such law, administrative remedies must be exhausted before resort is made to the courts. They rely on American Pipe & Steel Corp. v. Firestone Tire & Rubber Co., 292 F.2d 640 (9th Cir. 1961). Here the court applied federal law to the interpretation of a subcontract under a federal contract since the area was one dominated by the sweep of federal statutes, the contracts were connected with national security, and, in this instance, a possible increase in the cost of national security was involved. The government is correct. The subcontract in this case would be interpreted by federal law under the sweeping command of the Firestone decision. It is not necessary, however, to paint with such a broad brush. The trial court erred in treating the disputes clause as an agreement to arbitrate which ousted the court of jurisdiction and was historically viewed with a jealous eye by the courts. The clause is an ordinary disputes clause and so far as possible should be treated as similar clauses in contracts between the government and its contractors. The subcontract disputes clause reads as follows: “ARTICLE VIII — DISPUTES “Except as otherwise specifically provided in this subcontract any and all questions, issues, and disputes arising under this subcontract shall be settled if possible by negotiations and mutual agreement of the parties hereto, but in the event of their inability to agree, shall be decided by the Commission’s Manager of Oak Ridge Operations or his duly authorized representative, representatives or board, whose decision shall be final and conclusive on the parties. In the meantime, the Subcontractor shall diligently proceed with the contract as directed.” This clause was modified by mutual agreement on February 28, 1956 substituting the word “Commissioner” for the words “Commission’s Manager of Oak Ridge Operations or his duly authorized representative, representatives or board”. The disputes clause in a contract between the government and a contractor has long been recognized and approved as a valid provision for the determination of fact issues arising out of the contract. The purpose of the clause is to provide for a quick efficient determination of disputes on an administrative level, thus mitigating or avoiding large claims which might otherwise arise. The Atomic Energy Commission has made its disputes settlement procedure available to parties to subcontracts under contracts let by them. And the Commission regulations are written in terms of appeals by contractors of subcontractors. In this case the parties to the subcontract have adopted this method of disputes determination between themselves. The subcontract is one in which many aspects of the relations between the contractor and the subcontractor were directly supervised by the government. The contract under which this subcontract was let was a cost type contract, and in fact the cost of the alleged contractual overpayment was assumed by the government as discussed above. The expeditious administrative determination of disputes arising under this contract is a matter of such importance to the federal government that the law controlling such determinations between government and prime contractors so far as applicable should apply to the construction of the disputes clause. We are aware, as was the court in American Pipe and Steel Corp. v. Firestone Tire & Rubber Co., 292 F.2d 640 (9th Cir. 1961), that there is generally considered to be no privity between a subcontractor and the government when the issue is whether the subcontractor may sue the government. We also recognize the validity of opinions applying state law to the construction of contracts between government contractors and their subcontractors. However, it is clear that federal law will control contracts between private parties if there is sufficient federal interest. It is just such an interest that we have outlined above. Though the question of what law applies to interpret a disputes clause in a subcontract has apparently never arisen before, federal courts have applied the body of law surrounding the interpretation of disputes clauses in government contracts to a similar clause in private subcontracts under government contracts. In United States v. United Enterprises, 226 F.2d 359 (5th Cir. 1955), a Miller Act dispute between a contractor and a subcontractor, the private subcontract contained a clause providing that the United States Engineer would determine construction and meaning of drawings and specifications. His determination was held binding on the subcontractor under the authority of United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288 (1950) and United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951) . Both of these cases involve the construction under federal law of the typical disputes clause in a government contract. In E. I. DuPont DeNemours & Co. v. Lyles & Lang Const. Co., 219 F.2d 328 (4th Cir. 1955), a disputes clause in a private subcontract under a government contract was held inapplicable to a dispute of law. The court cited as authority cases involving disputes clauses in government contracts, United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154 (1951) and United States v. J. A. Holpuch Co., 328 U.S. 234, 66 S.Ct. 1000 (1946). The court also held that as an arbitration agreement the clause was inapplicable. Despite the language analyzing the clause as an arbitration agreement, the case has been cited as authority for the interpretation of disputes clauses in government contracts in United States v. Hamden Co-Operative Creamery Co., 297 F.2d 139 (2nd Cir. 1961) and Jacobs v. United States, 239 F.2d 459 (4th Cir. 1956). There are still more examples of the application of federal law to clauses in private subcontracts and the law of the private subcontract cases to government contract cases. In Liberty Products Corp. v. H. K. Ferguson Co., 90 F.Supp. 673 (E.D.N.Y.1950) a disputes clause in a private subcontract was held governed by United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288 (1950) a public contract case; and in Moran Towing & Transp. Co. v. United States, 192 F.Supp. 855 (S.D.N.Y. 1960) the Liberty Products case was cited as authority for interpreting a disputes clause in a government contract case. In this opinion we merely verbalize what is implicit in the foregoing decisions. The application of federal law to this disputes clause to determine the effect of withdrawal on the subsequent ex parte award is in this case made simple for us by the Atomic Energy Regulations governing disputes. The Regulations specifically provided that “In the event of the unexcused absence of a party at the time and place set for a hearing, the hearing will proceed and the appeal will be deemed as having been submitted without oral testimony or argument on behalf of that party.” Withdrawal does not invalidate the award any more than a withdrawal would invalidate a disputes determination by •an architect or engineer in a private ‘contract. The remaining issues are easily «disposed of. The district court held that the amended disputes clause called for ‘determination by the commission and that representatives of the commission were eliminated from the clause by omitting reference to them in the amended version. The implication of this was that the Board which heard the dispute was not designated in the clause, and, 'therefore, its decision was of no effect. ‘The omission of the reference to representatives in the amended clause might be troublesome had not the subcontract (defined Commission as the Commission •or its duly authorized representatives. 'The Board was the proper administrative ■body to determine the dispute. The district court held that the •assignment of all claims for overpayment to the government materially prejudiced "the rights of Taylor-Wheless, since Taylor-Wheless could not counter claim -against the government for retainage, nor did it have the same powers of 'discovery against the government to ■which it would have been entitled had the litigation been between parties to the contract. We need not determine the •accuracy of this holding. The short of it is that the subcontract provided that “This Subcontract, or any part thereof, is assignable to the Government by the •Contractor.” No matter what the case absent this clause in the subcontract, .given its presence the claims to overpayment were validly assigned to the gov■ernment. The district court finally holds that the Mississippi three year statute of limitations bars recovery. Possibly applicable to the underlying claim, though we express no opinion on the matter, the statute is not applicable to a suit based on the disputes award made merely a few days more than one year before the assignment. The statute, of course, ceased to run at the time the claim is assigned to the government. Taylor-Wheless in this court asserts that, since the disputes clause indicated that the subcontractor should proceed with the contract during the determination of disputes, the clause is applicable only to disputes arising during the performance of the contract. This is a much litigated issue. The better view is that the clause has no such limitation. Again, however, we do not have to determine this issue. The act of the parties in modifying the disputes clause after the termination of the work under the subcontract conclusively demonstrates that the clause was to apply to post completion disputes. This was so found by the Board. There are no further legal issues to be determined and no facts in dispute. We hold that the judgment below must be reversed and the cause be remanded with directions to enter judgment for the United States. The judgment of the district court is hereby reversed and remanded for further proceedings not inconsistent herewith. . 2S U.S.C.A. § 1345. . Appellees will be referred to as TaylorWheless for convenience. They are, in fact, R. H. Taylor and J. L. Taylor individually and as co-partners in Taylor-Wheless Co., and Taylor-Wheless Co., Inc., successor in business to the partnership. . Taylor-Wheless has never asserted that there had been an inaccurate application of the end count principle by the independent surveyors. . Sec. 729, Mass.Code (1942). . United States v. Moorman, 338 U.S. 457, 460, 70 S.Ct. 288, 94 L.Ed. 256 (1950). . United States v. Joseph A. Holpuch, 328 U.S. 234, 239, 66 S.Ct. 1000, 90 L.Ed. 1192 (1946). . 10 C.F.R. Sec. 3.1 (1959) (In effect during all periods here pertinent). See Cuneo, Disputes Between Sub-Contractors and Prime Contractors Under Government Contracts, 16 Fed.Bar J. 246 (1956). . 10 C.F.R. Secs. 3.1 et seq. (1959) (In effect- during all here pertinent). . “SUBCONTRACT ART. II The Commission had to approve any change in the scope of the subcontract that the contractor might wish to make. The Commission had to approve any equitable adjustment in the cost of the subcontract due to such changes. “ART. IV Contractor’s findings of material changes in condition that would re-suit in an increase or decrease in cost to the subcontractor must be concurred in by the Commission. “ART. VI The disputes clause quoted in Text. “ART. IX Neither the subcontractor, nor any interest therein, or claim thereunder, nor any sum or sums which may be due thereunder, shall be assigned without the written approval of the contractor and the Commission. “ART. XI Subject to the approval of the Commission the contractor could terminate the subcontract for reasons other than breach of the subcontract provisions. “ART. XII (2) Any time after the completion of 50 per cent of the work the contractor might make the remaining partial payments in full to the subcontractor with the approval of the Commission. “ART. XII (3) All material and work covered by partial payments made became the sole property of the government. “ART. XII (4) The amount due under the contract after completion and acceptance of all work would be paid the subcontractor after subcontractor furnished contractor with a release of all claims against the contractor and the government arising by virtue of the contract. “The contract also evidences many instances of direct control over the subcontractor by the Commission. “ART. 2(111 (b) The subcontractor agreed to conform to all security regulations and requirements of the Commission. “ART. XVII The subcontractor agreed to comply with all health, safety, and fire regulations of the Commission. “ARTS. XXI and XXII The Commission shall always have access to drawings and specifications, and all memoranda of record value were to be property of the government. “ART. XXVIII The subcontractor agreed to save the contractor and the government harmless from all suits, claims, and demands arising out of the work. “ART. XXXI Subcontractor agreed to comply with all federal and state, and other laws and regulations applicable to the work performed. “ART. XXXVII The subcontract was subject to the written approval of the Commission. “The subcontract also contained many provisions often found in contracts between the United States and a prime contractor. “ART. XV Subcontractor shall not employ any person undergoing sentence of imprisonment at hard labor. “ART. XVI Subcontractor in performing the work shall not discriminate against any employee or applicant for employment because of race, creed, or color, or national origin. “ART. XVIII No Congressman or Commissioner shall benefit from this subcontract. “ART. XIX Subcontractor agreed that he had not employed anyone to solicit the contract on a contingent fee basis. “ART. XXXIII Subcontractor agreed to use domestic articles in the construction unless the Commission determined otherwise. “ART. XXXVII The subcontract was made subject to the Renegotiation Act.” . Rumsey Mfg. Corp. v. United States Hoffman M. Corp., 187 F.2d 927 (2d Cir. 1951); D. W. Winkleman Co. v. Barr, 178 F.2d 341 (6th Cir. 1949). . Cf. Bank of America Nat. Trust & Sav. Ass’n. v. Parnell, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956). . 10 C.F.R. Secs. 3.1-3.40 (1959) (In effect during all time here pertinent). . 10 C.F.R. Sec. 3.20 (1959). Though the Regulations, note 13, supra, speak only to a disputes procedure that submits the dispute first to the parties, then to a hearing examiner, and finally by appeal to the Board for a de novo determination, the fact that the parties choose to omit the submission to the hearing examiner, an omission acquiesced in by the commission’s approving the contract and making the Board available to the parties, does not exempt them from the plainly declared ex parte policy of the board. The factual determination of the board is binding on the subcontractor though he was absent from the hearing. This is true unless such a factual determination is found to be “fraudulent (sic) or capricious or arbitrary or so-grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” 41 U.S.C.A. § 321 (1954). No attack has been here made on the fact findings of the Board. . 10 C.E.R. Sec. 3.3 (1959). . Note 3, supra. . United States v. John Hancock Mut. Life Ins. Co., 364 U.S. 301, 81 S.Ct. 1, 5 L.Ed.2d 1 (1960); United States v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283 (1940). . Silverman Bros. Inc. v. United States, 324 F.2d 287, (1st Cir. 1963). Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "construction". What subcategory of business best describes this litigant? A. residential B. commercial or industrial C. other D. unclear Answer:

songer_r_bus

99

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. S. L. CROOK CORPORATION v. POTTER et al. No. 9764. Circuit Court of Appeals, Sixth Circuit. Nov. 6, 1944. S. D. Hodge, of Princeton, Ky., and Charles Ferguson, of Smithland, Ky., for appellant. C. A. Pepper, of Princeton, Ky., for appellees. Before SIMONS, ALLEN, and McALLISTER, Circuit Judges. PER CURIAM. The above cause coming on to be heard upon arguments, briefs of counsel, and transcript of the record, it appears that appellee Potter is the assignee of a judgment of foreclosure against property of appellant; that upon appellee’s motion for an order of sale in such foreclosure proceedings, appellant filed answer and counterclaim, setting forth that appellee had entered into a contract to extend the time for payment of the judgment, that such extended period had not yet expired, and that appellee owed appellant, by virtue of the terms of a lease of the property in question, more than enough to pay the judgment debt. It appears from the pleadings that appellee is not a resident of the State of Kentucky and owns no property located therein. Section 378 of the Civil Code of Practice of Kentucky permits a judgment debtor to enjoin the enforcement of a judg- • ment against him if he has an action pending in which the judgment could be used as a set-off against the judgment creditor, where it is necessary to do so in order to prevent loss by insolvency, non-residence, or otherwise; and Section 285 of the Civil Code of Practice of Kentucky requires that the action seeking such injunction be brought in the court in which the judgment was rendered. But it appears that appellant has made no application to enjoin the enforcement of the judgment. The trial court correctly held that appellant could not, in proceedings for sale under judgment of foreclosure, and without injunctive proceedings, stay such proceedings and litigate its claim against appellee by way of answer and counter-claim. Wherefore, the judgment of the district court is affirmed. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:

songer_respond1_3_2

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 first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. Louie King FONG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 17744. United States Court oí Appeals Ninth Circuit. June 27, 1962. Sullivan, Redman & Winsor, and John J. Sullivan, Seattle, Wash., for appellant. Brockman Adams, U. S. Atty., and Phillip DeTurk, Asst. U. S. Atty., Seattle, Wash., for appellee. Before POPE, HAMLEY and BROWNING, Circuit Judges. POPE, Circuit Judge. This case was first instituted by the filing of a complaint in the District Court of the United States for the Western District of Washington, by Fong, as plaintiff, against John P. Boyd, District Director of Immigration and Naturalization Service of the United States Department of Justice, as defendant. The complaint sought judicial review by way of a declaratory judgment of a deportation order of the Immigration and Naturalization Service through its special inquiry officer, which found and determined that the plaintiff Fong was, as a deportable alien, not eligible to apply for or obtain suspension of deportation under Sec. 244(a) of the Immigration and Nationality Act of 1952, (8 U.S.C.A. § 1254(a)). After answer had been filed in the district court, the litigation there was carried through a pretrial hearing and entry of a pretrial order in which all the facts of the case were stipulated by the parties. Thereafter, and before any further hearing was had in the district court, the Act of September 26, 1961, (Public Law 87-301), 75 Stat. 650 to 657, became effective as of October 26, 1961, 18 U.S.C.A. § 1101 et seq. Section 5 of that Act provided, with certain exceptions not here relevant, that: “The procedure prescribed by, and all the provisions of the Act of December 29, 1950, as amended (64 Stat. 1129; 68 Stat. 961; 5 U.S.C. 1031 et seq.), shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings * * It also provided: “Any judicial proceeding to review an order of deportation which is pending unheard in any district court of the United States on the effective date of this section (other than a habeas corpus or criminal proceeding in which the validity of the deportation order has been challenged) shall be transferred for determination in accordance with this section to the court of appeals having jurisdiction to entertain a petition for review under this section.” 8 U.S. C.A. § 1105a. The case was transferred by order of the district court to this court in accordance with the statutory provision quoted. The record shows that prior to the filing of his complaint in the district court, (the complaint is now treated as a petition for review as provided by the Act of December 29, 1950, (5 U.S.C.A. § 1031 et seq.), petitioner had exhausted all of his administrative remedies. Petitioner made timely application for suspension of deportation and at a time when no final order of deportation had been served on him. In affirming the order of the special inquiry officer, the Board of Immigration Appeals, to whom the record had been certified, stated the admitted facts respecting the petitioner, as follows: “The pertinent case history will be reviewed briefly. The undisputed facts are that respondent, a native Chinese citizen, was brought to the United States in October 1943 from Trinidad, British West Indies, where he had been taken about 1942, following rescue after the sinking of a British tanker on which he was working as a seaman in the Atlantic. He began sailing in 1941 and the purpose of his admission to the United States in 1943 was to allow him to ship out as a seaman or otherwise give service in the war effort. He registered for military service, was medically examined and classified IV(F). He has remained in the United States continuously and has worked intermittently. He failed to furnish notification of address or other information in February 1953 as required by Section 265 of the Immigration and Nationality Act [8 U.S.C.A. § 1305]. He is unmarried and has no dependent ties here. He has no criminal record. Good moral character and physical presence in the United States for a continuous period of ten years are established. The hardship factor is present. No evidence has been presented to indicate that the alien has any connection with subversive groups. He has lived here 17 years. * * * Although the evidence shows that after admission as a nonimmigrant respondent failed to comply with the terms and conditions of his admission; and/or as a nonimmigrant he remained longer than permitted; and that he acquired a deportable status about 1944 (8 U.S.C. 203, 214 and 215, Act of 1924 ), no charge has been urged under current law based on that violation of the immigration laws (8 U.S.C. 1251 (a) (2)). Respondent has been found deportable solely for failure to furnish notification of address or other information in 1953 as required by Section 265 of the Immigration and Nationality Act. This ground for deportation was lodged in the hearing and is assigned under Section 241(a) (5) of the Immigration and Nationality Act.” The issues considered by the administrative officers and decided against the petitioner were stated as follows: “The controversial issue, as clearly stated by the special inquiry officer and counsel, is a question of law pertaining to one of the statutory requirements which the alien has not met under Section 244(a) (5) of the Immigration and Nationality Act. This question arises because the alien acquired a deportable status on two occasions, namely in 1944 and 1953, respectively. The question is whether the date of the first deportable status acquired by the respondent in 1944, which constitutes a ground for deportation (other than one specified in Section 244 (a) (5)), may be a basis for computing continuous residence in the United States and thus satisfy the resident provision of the last mentioned section of law, which requires that an alien must have been physically present in the United States for a continuous period of ‘not less than ten years immediately following the commission of an act or the assumption of a status, constituting a ground for deportation.’ The special inquiry officer has ruled in the negative.” The applicable statute, upon whose construction the outcome of this case' depends, is Sec. 244(a) of the Immigration and Nationality Act of 1952, (Title 8 U.S.C.A. § 1254(a)), which undertakes to describe and define the persons to whom suspension of deportation may be granted by the Attorney General. That subdivision contains five numbered paragraphs, the fifth of which has significance here. It is the only paragraph under which petitioner could possibly apply for suspension of deportation. Paragraph (5), with the introductory paragraph of the section, reads as follows: “§ 1254. (a). As hereinafter described in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who — ■ * * * (5) is deportable under paragraphs (4) — (7), (11), (12), (14)-(17), or (18) of section 1251(a) of this title for an act committed or status acquired subsequent to such entry into the United States or having last entered the United States within two years prior to, or at any time after June 27, 1952, is deportable under paragraph (2) of section 1251(a) of this title as a person who has remained longer in the United States than the period for which he was admitted; has been physically present in the United States for a continuous period of not less than ten years immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation, and proves that during all of such period he has been and is a person of good moral character; has not been served with a final order of deportation issued pursuant to this chapter in deportation proceedings up to the time of applying to the Attorney General for suspension of deportation; and is a person whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien or to his spouse, parent, or child, who is a citizen or an alien lawfully admitted for permanent residence.” The report of the special inquiry officer noted that petitioner became deportable at various times: — “he became deport-able shortly after entry by accepting employment inconsistent with non-immigrant status or by remaining longer than the period for which he was admitted, which would fix his deportable status as commencing sometime early in 1944.” “He also acquired a deportable status by virtue of the charge upon which deporta-bility is based, failure to report his address annually to the Attorney General.” His first violation under this provision occurred about February 1, 1953. It is also to be noted that the first ground for deportability would be the ground mentioned in paragraph 2 of Sec. 1251(a) of Title 8, namely, “Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who — * * * (2)'entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or in violation of any other law of the United States.” It is not one of the paragraphs listed in the first line of paragraph (5) quoted above. However, failure to register is described in paragraph 5 of Sec. 1251(a), which is one of the paragraphs mentioned in paragraph (5) which we have quoted above as a part of Sec. 1254. The case is one of first impression and neither party has been able to cite cases or decisions in point. In support of the finding of the administi'ative officers, counsel for the respondent Immigration and Naturalization Service argues that it was necessary for this petitioner to prove that “he has had physical presence in the United States for a continuous period of ten years after he has last become deportable.” (Emphasis ours.) The main trouble with that contention is that the statute here in question does not so state. On the other hand, as petitioner shows, the quoted paragraph (5), in referring to physical presence in the United States for a continuous period of not less than ten years, states “immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation.” (Emphasis ours) If it was the intent to give the paragraph the meaning which the special inquiry officer has given it, it would have been a simple matter to have made this language read: “Immediately following the commission of the act, or the assumption of the status, constituting the ground upon which deportation is ordered. * * * ” We think that at the very least it must be said that the manner in which this paragraph is worded left it open to two possible constructions. If that is the case, then the principle which should be applied here is that stated in Barber v. Gonzales, 347 U.S. 637, 642, 74 S.Ct. 822, 98 L.Ed. 1009, as follows: “Although not penal in character, deportation statutes as a practical matter may inflict ‘the equivalent of banishment or exile’, Fong Haw Tan v. Phelan, 333 U.S. 6, 10, [68 S.Ct. 374, 92 L.Ed. 433] and should be strictly construed.” Furthermore, to give the language of this section the meaning which respondent has applied in ruling petitioner ineligible for suspension of deportation would make the statutory language appear irrational and lacking in ordinary common sense. The conduct of this petitioner which forms the basis of the order for his deportation is innocuous and minor when compared with the sort of conduct which would constitute the basis for deportation under the various paragraphs listed in the first line of the quoted paragraph (5). Included there are persons convicted of crimes involving moral turpitude, anarchists, members of the Communist party, or persons who advocate totalitarian dictatorship, or the overthrow by force, violence or other unconstitutional means of the Government of the United States; narcotics addicts, persons convicted of violation of laws relating to illicit traffic in narcotic drugs; persons convicted of possession of automatic weapons or sawed-off shotguns. Any of these persons, ten years after the cause of their deportability, would be eligible for suspension of deportation. It does indeed appear to be irrational so to construe this paragraph as to bar from suspension of deportation this petitioner whose record shows years of good behavior, no moral turpitude whatever, and only a minor infraction of law through a failure to register. It seems difficult to square with the statute as a whole any thought that Congress, through the use of ambiguous or vague language in the section here involved, intended to limit its declared purpose of granting the Attorney General broad powers to avoid the hardships of deportation through the use of the authority to suspend deportation. It should be remembered that the use of that power is always subject to the strict limitations of Sec. 1254 which requires Congressional approval of the Attorney General’s extension of clemency. As stated in Addison v. Holly Hill Fruit Products, 322 U.S. 607, 617, 64 S.Ct. 1215, 88 L.Ed. 1488: “If legislative policy is couched in vague language, easily susceptible of one meaning as well as another in the common speech of men, we should not stifle a policy by a pedantic or grudging process of construction.” As in the case of Delgadillo v. Carmichael, 332 U.S. 388, 391, 68 S.Ct. 10, 92 L.Ed. 17, we feel that “the hazards to which we are now asked to subject the alien are too irrational to square with the statutory scheme.” The statutory provisions relating to suspension of deportation are designed to ameliorate the ordinary drastic consequences of an order of deportation. As stated by Mr. Justice Douglas, in speaking for the Court in Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433: “We resolve the doubts in favor of that construction because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U.S. 388 [68 S.Ct. 10, 92 L.Ed. 17]. It is a forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provision less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.” Accordingly we hold that those portions of the orders of the respondent holding petitioner not eligible for suspension of deportation are invalid and they are set aside. 5 U.S.C.A. § 1032. The cause is remanded to the respondent Immigration and Naturalization Service with directions to modify its orders in conformity with this opinion. 5 U.S.C.A. § 1009(e). The title of this proceeding is ordered amended as follows: LOUIE KING FONG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . In the matter before the special hearing officer Fong was held (a) to be deport-able; and (b) ineligible for suspension of deportation. The order as to deportation is not in issue here; the only questions presented relate to the order as to eligibility for suspension of deportation. . . In his complaint in the district court Fong properly named the District Director of Immigration and Naturalization Service as defendant. The new statute, Public Law 87-301, supra, provides that “The action shall be brought against the Immigration and Naturalization Service, as respondent.” The petitioner’s briefs in this court continue to describe John P. Boyd, District Director, as defendant, and the brief on behalf of the Immigration and Naturalization Service describes the United States as defendant. We treat Fong as petitioner here, and the Immigration and Naturalization Service as respondent, and the title-of the proceedings in this court will be ordered amended accordingly. Now 8 U.S.C.A. §§ 1101(a) (15) (A-G), (27) (A-C, F), 1251(a) (1, 2, 9), (e), 1252, 1102, 1184. . Tlie other four paragraphs describe various classes of deportable persons but in each case the language of those paragraphs expressly excludes any person in the situation of this petitioner. Thus paragraph 1 refers to an alien who “applies to the Attorney General within five years after the effective date of this chapter for suspension of deportation”; paragraphs 2, 3 and 4, are expressly limited to aliens who “last entered the United States within two years prior to, or at any time after June 27, 1952”. Petitioner cannot qualify under any of those paragraphs because of the indicated time limitations. . “Certainly, so harsh a penalty as deportation is far out of proportion with the crime. * * * Such a penalty is not in keeping with the principles of our jurisprudence.” U.S.Code Congressional Service, 82nd Cong. 2d Sess., Vol. 2, p. 1753. (Statement of Congressman Celler appended to House Report.) . Statement of House Mgrs. on Conference Report, U.S.Code Congressional Service, 82nd Cong., 2nd Sess. vol. 2, p. 1753: “Similarly, the conferees believe they have applied very broad standards of humanitarianism in composing the differences between both versions of this legislation as they appeared in the sections governing the granting of suspension of deportation.” Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:

songer_state

39

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". Kenneth H. WALTERMYER, Appellant, v. ALUMINUM COMPANY OF AMERICA, Appellee. No. 86-3156. United States Court of Appeals, Third Circuit. Argued Sept. 30, 1986. Decided Nov. 7, 1986. Rehearing and Rehearing En Banc Denied Dec. 1, 1986. Mary T. Koehmstedt (argued), John F. Cordes, Attys., Appellate Staff, Richard K. Willard, Asst. Atty. Gen., Civ. Div., Dept, of Justice, Washington, D.C., J. Alan Johnson, U.S. Atty., Pittsburgh, Pa., for appellant; George Salem, Sol., John Depenbrock, Associate Sol., William H. Berger, Department of Labor, Washington, D.C., of counsel. Ralph W. Waechter (argued), Aluminum Company of America, Pittsburgh, Pa., for appellee. Before WEIS, MANSMANN and HUNTER, Circuit Judges. OPINION OF THE COURT WEIS, Circuit Judge. The question in this case is whether a National Guardsman is entitled to pay from his employer for a holiday that occurs during his leave of absence for the annual two-week military training period. The collective bargaining agreement limited eligibility for holiday pay to individuals who worked during that week, but exempted from that requirement persons in a number of categories who were absent for reasons beyond their control. Because of the similarity between military leave of absence and those exempted classifications, we conclude that the Vietnam Era Veterans’ Readjustment Assistance Act, 38 U.S.C. §§ 2001, et seq., requires that the guardsman be treated the same as those in the exempted classifications who receive holiday pay. Accordingly, we will reverse the district court’s judgment in favor of the employer. After the district court entered summary judgment for defendant employer and denied the plaintiff’s motion, plaintiff appealed. The facts are not in dispute. Plaintiff has been an employee of defendant since 1966. He is also a member of the Pennsylvania Air National Guard, and during its annual two-week training period defendant has granted leaves of absence as required by 38 U.S.C. § 2024(d). In 1982, the two-week training period began on July 3, and included the Independence Day holiday. In 1984, the Memorial Day holiday occurred during the training period that began on May 19. Relying on his union’s collective bargaining agreement, which designated the two days as paid holidays, plaintiff contended that he was entitled to two days’ wages. Defendant refused on the ground that plaintiff had not met the prerequisite to holiday pay set out in the collective bargaining agreement. ALCOA’s agreement with the plaintiff’s union provides that full-time employees receive pay for designated holidays if, during the payroll week (Monday through Sunday) in which the holiday occurs, the employee is: 1. At work; or 2. On a scheduled vacation; or 3. On a layoff under specified conditions; or 4. Performing jury service; or 5. A witness in a court of law; or 6. Qualified for bereavement pay; or 7. Absent because of personal illness and certain sick leave conditions apply- Plaintiff maintained that because he was on active military duty during the holiday weeks he qualified for holiday pay, as did employees in the exempted categories, e.g., jurors or witnesses in court. He asserted that the holiday pay is “an incident or advantage of employment” under the the Vietnam Era Veterans Readjustment Assistance Act, 38 U.S.C. §§ 2021, et seq., and may not be withheld from those on leaves of absence to participate in military training. The district court, relying on Monroe v. Standard Oil Co., 452 U.S. 549, 101 S.Ct. 2510, 69 L.Ed.2d 226 (1981), concluded that plaintiff could not recover because he sought greater rights than those available to fellow-employees. Although several groups of ALCOA employees received holiday pay despite their absence during the critical weeks, the court observed that plaintiff did not fit within the distinct categories exempted by the collective bargaining agreement. In these circumstances, to require holiday pay for the plaintiff “would enlarge the obligation of the employer beyond the simple statutory command. We find that plaintiff has not suffered any discrimination by being denied any benefit to which other employees are entitled.” Waltermyer v. Aluminum Company of America, 633 F.Supp. 6, 8 (W.D.Pa.1986). The court, therefore, entered judgment for the employer. I On appeal, plaintiff asserts that since some employees receive more favorable treatment than others, the statute requires that he be placed on equal footing with those workers in the privileged group. Alcoa argues that its treatment of plaintiff was consistent with that of all other employees on leaves of absence. The statutory provisions relevant here had their origins in World War II, and originally were designed to provide reemployment for veterans on their return to civilian life. Pub.L. No. 54-783, § 8, 54 Stat. 885, 890 (1940). Various amendments were enacted over the years, and in 1960, National Guardsmen, in addition to reservists, became protected from employment discrimination because of absences from work during short-term military training exercises. 38 U.S.C. 2024(c). Section 2024(d) provides that employees “shall upon request be granted a leave of absence” by their employers for the period of active duty required for training. Once released from active duty, the employees “shall be permitted to return” to their positions “with such seniority, status, pay, and vacation” as the employees would have enjoyed had they not taken leave for military training. The Department of Labor concluded that § 2024(d) inadequately responded to the special problems reservists had encountered and, therefore, proposed legislation that Congress adopted in 1968. Codified at 38 U.S.C. § 2021(b)(3), the amendment provides that a person shall not be “denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces.” The Supreme Court first construed § 2021(b)(3) in Monroe v. Standard Oil. In earlier cases the Court had reviewed provisions of the Act which applied to veterans with more lengthy service who then returned to civilian life. See, e.g., Alabama Power Co. v. Davis, 431 U.S. 581, 97 S.Ct. 2002, 52 L.Ed.2d 595 (1977) (worker entitled to pension credit for 30-month break in employment spent in military). In reviewing the legislative history of § 2021(b)(3), the Monroe Court observed that the Senate and House Reports agreed on the aim of the statute: to insure reservists “the same treatment afforded their coworkers not having such military obligations.” 452 U.S. at 558, 101 S.Ct. at 2515. The thrust of the legislation, according to the Court, was to prevent discrimination against reservists but not to grant them preferential treatment. Following that theme, the Court found nothing in the legislative history to indicate the statute was designed to give reservists on leave all the incidents of employment accorded working employees, including regular and overtime pay. Monroe had contended that the statute obligated his employer to reschedule his hours of work so that time lost as a result of weekend National Guard duty could be made up on other days of the week. The Court rejected his argument because it “would require work-assignment preferences not available to any nonreservist employee at the respondent’s refinery.” 452 U.S. at 561, 101 S.Ct. at 2517. Before Monroe reached the Supreme Court, courts of appeals had applied the statute in several cases. In Carlson v. New Hampshire Dept. of Safety, 609 F.2d 1024 (1st Cir.1979), the court held that a state trooper’s reassignment to a less desirable shift because of his six-week absences for military training violated § 2021(b)(3). In determining whether the plaintiff was a victim of discrimination, the court of appeals did not compare him to those co-workers away on nonmilitary leave of absence but concluded the standard should be based on the more inclusive class of “co-workers not having [reserve] obligations.” 609 F.2d at 1027. The court in West v. Safeway Stores, Inc., 609 F.2d 147 (5th Cir.1980), adopted a standard that would require an employer “in applying the collective bargaining agreement to treat reservists as if they were constructively present during their reserve duty in similar contexts.” Id. at 150. The dispute in that case centered on the employer’s agreement with the union to provide forty hours of work per week. To the extent that the factual situations are similar, Monroe may have substantially weakened West. Carney v. Cummins Engine Co., 602 F.2d 763 (7th Cir.1979), required an employer to grant reservists opportunities for overtime work equivalent to those available to other employees. The court refused to enforce a provision of the collective bargaining agreement less favorable to reservists than other employees. The facts of Kidder v. Eastern Air Lines, 469 F.Supp. 1060 (S.D.Fla.1978), resemble those presented here. The Kidder collective bargaining agreement denied holiday pay to employees on leave during a holiday. Because the required two-week training program forced the plaintiff to be absent, the employer disallowed holiday pay. The district court held that an employer must treat a National Guardsman as if he had remained at work and must not deprive him of benefits that accrued during that time if due by virtue of mere presence there. Whether Kidder’s broad holding remains valid in light of Monroe’s more restrictive interpretation of the Act is questionable. Interestingly, however, in Eagar v. Magma Copper Company, 389 U.S. 323, 88 S.Ct. 503, 19 L.Ed.2d 557 (1967), the Supreme Court reversed per curiam a court of appeals judgment denying holiday pay to veterans who had returned to employment after two years of military service. The collective bargaining agreement conditioned holiday pay on the employees having been on the payroll continuously for three months before the holiday. The employer contended the veteran was not eligible because he returned to work less than three months before the holiday. Although the court’s order did not explain the reversal, and the case involved veterans rather than reservists, the fact situation itself is significant. Eagar should be compared with Foster v. Dravo Corp., 420 U.S. 92, 95 S.Ct. 879, 43 L.Ed.2d 44 (1975), also a returning veteran case, in which the Court held that an employee earns vacation time as a result of days worked, rather than merely gaining it as a benefit of seniority. Consequently, the veteran’s claim for vacation rights accruing during his eighteen months of military service failed. However, in Coffy v. Republic Steel Corp., 447 U.S. 191, 100 S.Ct. 2100, 65 L.Ed.2d 53 (1980), a veteran was found entitled to supplemental unemployment benefits based partially on time spent in military service. In that instance, the benefit was considered an incident of seniority because the collective bargaining agreement provided credit for “weeks in which the employee is paid for any hours not worked, as for jury duty.” Id. at 202, 100 S.Ct. at 2107. II In addressing the circumstances of this case, we begin by recognizing that plaintiff is not entitled to preferential treatment. As the Senate report observed, § 2021 was designed “to prevent reservists and National Guardsmen not on active duty who must attend week end drills or summer training from being discriminated against because of their Reserve membership.” S.Rep. No. 1477, 90th Cong., 2d Sess. 102 (1968). See also 38 U.S.C. 2021 note. Although the statute establishes equality as the test, we must look to the collective bargaining agreement to determine the rights of ALCOA employees to various benefits. Generally, Alcoa employees do not receive the extra wages unless they have worked every day in the week that the holiday falls. The reason for including this limitation in the collective bargaining agreement is obvious — to protect the employer from excessive absenteeism during a holiday week. Some employees find irresistable the temptation to make it a “long weekend” or stretch the holiday by taking a day or two before or after, even if required to take leave without pay. Employers have found ample basis for restrictions to prevent production disruption during holiday weeks. However, the collective bargaining agreement does reflect employee equities as well; workers whose absence during the holiday week is involuntary and through no fault of their own receive holiday pay. Thus, employees on jury duty or testifying in court are exempt from the work requirement. In those instances the government compels the employees’ attendance and the worker, presumably, does not choose when to comply with this obligation. In addition, the employee does not attempt to enlarge the holiday; this time off would take place no matter when the holiday occurred. Finally, the absence caused by the exempted categories would not generally be of extended duration. In these particular instances the employees also receive their regular pay. The collective bargaining agreement further exempts employees who are absent without pay because of defined illness or layoff. Again, the common thread is the lack of choice by the employees. Each of these characteristics holds true when the leave of absence is for military training. Particularly important is the fact that the guardsmen have no individual voice in selecting the weeks they will be on active duty. Military superiors set the time for training which is both compulsory and short. Although not listed in the collective bargaining agreement, military leave shares the essential features of those exemptions designated for employees not in the reserve. Thus, we hold that plaintiff must receive pay for those holidays occurring while he is on active duty. As noted earlier, we are conscious that the plaintiff’s rights must equal, and not exceed those of employees covered by the collective bargaining agreement. However, as the Court stated in Accardi v. Pennsylvania R.R. Co., 383 U.S. 225, 229, 86 S.Ct. 768, 771, 15 L.Ed.2d 717 (1966): “employers and unions are [not] empowered by the use of transparent labels and definitions to deprive a veteran [or reservist] of substantial rights guaranteed by the Act.” Viewed in this light, relieving those on military leave from the work requirement merely establishes equality for National Guardsmen and reservists, not preferential treatment. Analysis of the reason for the collective bargaining agreement exemptions and their prerequisites demonstrates that the group to which they apply provides the appropriate standard against which the guardsman’s claims are to be measured, rather than the larger group of all employees on leaves of absence. It is important, too, that work during a holiday week be seen only as establishing eligibility for holiday pay, not compensation for the other days not worked. In this respect, the guardsman here seeks less than employees called for jury duty who are entitled to their regular wages in addition to juror fees. We do not confine the group establishing the appropriate standard of comparison here to those who receive their regular wages while away from work. We include those who do not, but are nevertheless entitled to holiday pay under the terms of the collective bargaining agreement. We limit our holding to the claim to holiday pay presented here. We conclude, therefore, that plaintiff has established his right to holiday pay under the provisions of the Act; accordingly, the judgment will be reversed and the case will be remanded to the district court for entry of a judgment in favor of plaintiff. . Section 2024(d) speaks to members of the reserve forces not covered by subsection (c), which in turn applies to those ordered to periods of service longer than twelve consecutive weeks. Section 2024(f) says that a National Guard member’s full-time training constitutes active duty for purposes of subsection (d). In this context, therefore, section 2024(d) is applicable to members of the National Guard called to full-time training for less than three consecutive months. Subsection (c) provides more extensive protection for reservists or guardsmen called for longer than twelve consecutive weeks; read as a whole, therefore, the statute suggests a distinction in benefits for Guardsmen called for the usual two-week training periods and those called for more than twelve weeks. The situation is far from clear and it must be noted that section 2021(b)(3) (pertaining to reservists’ reemployment rights after training) does not differentiate between short and long terms of service. . This provision applies to both reservists and National Guardsmen. Monroe v. Standard Oil, 452 U.S. at 552 n. 2, 101 S.Ct. at 2512 n. 2. . We realize a planned vacation is different from the other exceptions on the list. Vacation is earned time away from work, and this exception merely recognizes that an employee should not be prejudiced, in the form of lost holiday pay, for taking an earned vacation. 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_usc2

15

What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 15. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. Jay S. ZELTZER, on behalf of himself and all others similarly situated, Appellant, v. CARTE BLANCHE CORPORATION, Appellee. No. 74-1651. United States Court of Appeals, Third Circuit. Argued Feb. 13, 1975. Decided April 21, 1975. Mark A. Senick, Senick & Penkower, Pittsburgh, Pa., for appellant. Clyde R. Mellott, John H. Morgan, Robert J. Tate, Eckert, Seamans, Cherin & Mellott, Pittsburgh, Pa., for appellee. SEITZ, Chief Judge, and ALDISERT and GARTH, Circuit Judges. GARTH, Circuit Judge. This appeal calls upon us to determine the applicability of the Truth in Lending Act to Carte Blanche’s method of apportioning a cardholder’s payment between the cardholder’s airline account, which is subject to finance charges, and the cardholder’s general account, which is not. The district court held that the Truth in Lending Act did not require Carte Blanche to disclose its method of apportioning payments. We reverse. I. Defendant-appellee Carte Blanche Corporation (Carte Blanche) is a national credit card company, which gives to cardholders the privilege of charging items at retail establishments. Non-business retail purchases are recorded in the cardholder’s Carte Blanche general account; are billed on a monthly basis; apparently are not subject to finance charges, and are payable upon receipt. A cardholder may also use his credit card to purchase airline tickets. Charges incurred for airline ticket purchases are billed in monthly installments under an extended payment plan and, in contrast to general account billings, are subject to finance charges. During the. time period from January 1, 1970 to November 1, 1970, Carte Blanche with its monthly billing statement made the following disclosures with reference to a cardholder’s airline account: “Airline Charges Explanation of Extended Pay Plan Monthly installments are billed as follows: Amount of Individual Ticket Monthly Installment $600 or less Yiz (min. $10 per .mo.) $600.01 to $900 ■Us $900.01 or more Yzí “Larger payments may be made, or the entire remaining balance may be paid at any time without penalty. “A monthly finance charge imposed at the periodic rate of 1V2% of the unpaid balance at billing date is added in accordance with tariff filed by airlines. This is an annual percentage rate of 18%. “Default in any payment due may, at our option, render the entire balance due.” The quoted language makes no mention of how a payment which exceeds the airline monthly installment (i.e. an “overpayment”) is applied to the cardholder’s airline and general accounts. During the period in question, unless specifically instructed by the cardholder, an airline account overpayment, if less in amount than the total airline account balance then due, was not applied to reduce the airline account. Instead the overpayment was credited to the cardholder’s general account, without regard to whether or not there were any outstanding charges in the cardholder’s general account. Carte Blanche’s practice in applying an overpayment is best understood by illustration. For our purposes here, we have assumed: (1) an airline charge of $600.00 was incurred by a cardholder; (2) this charge required a monthly installment payment of $50.00, and (3) no specific instruction as to allocation of payments was given to Carte Blanche by the cardholder. 1. Example 1: The cardholder, with a general account balance of $150.00, pays a total of $500.00. The airline account would be credited with $50.00 (thereby leaving an outstanding balance of $550.00 in the airline account upon which finance charges would be incurred). The general account balance of $150.00 would be deemed paid in full. The remainder of the payment made [$500.00 minus ($150.00 + 50.00)], $300.00, would then be credited to the general account for application against future charges and would bear no interest. The remaining $550.00 balance in the airline account would not be reduced. 2. Example 2: The cardholder, with no general account balance, pays a total of $550.00. The airline account would be credited with only $50.00 (thereby leaving an outstanding balance of $550.00 in the airline account upon which finance charges would be incurred). The balance of the payment made ($500.00) would be credited to the general account for application against future charges and would not bear interest. The practice in applying airline account overpayments is easily summarized. No advice was given by Carte Blanche to its cardholders that they could direct the allocation of payments between two accounts. Accordingly, unless the cardholder paid the entire airline account balance plus any outstanding general account balance, the airline account would be reduced only by the amount of the minimum monthly installment due. Any overpayment credited to the cardholder’s general account would not bear interest, although the airline account balance remaining unpaid would be subject to finance charges. On August 30, 1971, on behalf of himself and all others similarly situated, plaintiff-appellant Zeltzer filed this action against Carte Blanche. He alleged that Carte Blanche violated the Truth in Lending Act from January 1, 1970 to November 1, 1970 by failing to disclose its practice in applying overpayments made in connection with a cardholder’s airline account. Carte Blanche moved under Fed.R.Civ.P. 12 to dismiss the complaint for the following alternative reasons: (1) the court lacked in personam jurisdiction over Carte Blanche by reason of defective service; (2) the complaint failed to set forth a claim for relief under the Truth in Lending Act; (3) if a claim for relief under the Truth in Lending Act were alleged, plaintiff’s action was barred because it was already included within another purported class action then pending before the same district court. With the consent of all parties, further proceedings in this case were postponed pending decision of this Court in Katz v. Carte Blanche Corp., 496 F.2d 747 (3rd Cir.) (en banc), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974). Following decision of this Court in Katz, plaintiff filed an amended complaint and moved for class determination pursuant to Fed.R. Civ.P. 23. Thereafter the district court granted summary judgment to Carte Blanche, see Fed.R.Civ.P. 12(c), holding that Carte Blanche was not obligated under the Truth in Lending Act to disclose “the method of allocating overpayment credits to accounts.” Zeltzer v. Carte Blanche Corp., 375 F.Supp. 717 (W.D.Pa.1974). We disagree. II. The complaint alleged that the Truth in Lending Act obligated Carte Blanche to disclose the manner in which it applied payments to airline account balances and that Carte Blanche had failed to make these disclosures. Accordingly, we address ourselves to the sole question of whether Carte Blanche disclosed all that it was required to disclose under the Truth in Lending Act. The Truth in Lending Act requires disclosure of terms and conditions of credit extension under open end credit plans. See 15 U.S.C. § 1637, Regulation Z, 12 C.F.R. § 226.7. When airline tickets are purchased by a Carte Blanche cardholder on a deferred payment basis, finance charges are imposed upon the balance remaining “open” at the end of each month in the airline account. Hence, the Carte Blanche airline account, unlike Carte Blanche’s general account, is an open end credit plan, for which disclosures are required. See III, infra; 15 U.S.C. § 1602(i); Regulation Z, 12 C.F.R. § 226.2(r). The pertinent disclosure provisions of the Act provide: (a) Before opening any account under an open end consumer credit plan, the creditor shall disclose to the person to whom credit is to be extended each of the following items, to the extent applicable: $ sf: H< sf: :js (2) The method of determining the balance upon which a finance charge will be imposed. jjc !(s $ sf: sfc Statement required with each billing cycle (b) The creditor of any account under an open end consumer credit plan shall transmit to the obligor, for each billing cycle at the end of which there is an outstanding balance in that account or with respect to which a finance charge is imposed, a statement setting forth each of the following items to the extent applicable: (8) The balance on which the finance charge was computed and a statement of how the balance was determined. If the balance is determined without first deducting all credits during the period, that fact and the amount of such payments shall also be disclosed. * * * * * * 15 U.S.C. § 1637. Section 105 of the Act (15 U.S.C. § 1604) delegates to the Federal Reserve Board broad regulatory and rulemaking powers to effectuate its purposes. See Mourning v. Family Publications Service, Inc., 411 U.S. 356, 364, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973); Bone v. Hibernia Bank, 493 F.2d 135, 138 (9th Cir. 1974). Pursuant to the broad powers granted it, the Federal Reserve Board promulgated Regulation Z. The specific disclosures required by Regulation Z, and alleged to have been violated by Carte Blanche, are disclosures to be made on opening a new account, and disclosures to be made by periodic statements after an account has been opened. Referring to the literal words of Regulation Z the district court speculated “that plaintiff, under this state of facts, [might have] stated a cause of action . . ..” 375 F.Supp. at 720. However, interpreting Regulation Z in accordance with an interpretive ruling of the Federal Reserve Board, the district court held that a cause of action was not so stated. Cf. Mourning v. Family Publications Service, Inc., 411 U.S. at 372, 93 S.Ct. 1652; Udall v. Tallman, 380 U.S. 1, 16 — 17 (1965); Bone v. Hibernia Bank, 493 F.2d at 139-40. The district court reached its conclusion without regard to whether disclosure was required under the Act. In so doing, the district court bypassed the question of whether disclosure was mandated and proceeded directly to hold that Carte Blanche’s practice would nevertheless be exempt from disclosure. As a result of this approach, we first deal with the issue of “exemption” under the interpretive ruling and then consider if disclosure is mandated. For its holding, the district court emphasized, and apparently relied upon, just one sentence of the interpretive ruling: (b) In disclosing the method of determining the balance(s) upon which finance charges are computed, it is not necessary to show the method of allocating payments or other credits. 12 C.F.R. § 226.706(b). Our analysis of the entire subsection (b) however, discloses that the interpretive ruling cannot support the district court’s conclusion. First, when read in full context, subsection (b) limits drastically the scope of the introductory sentence which was central to the district court’s opinion. Subsection (b), through example, narrowly limits the types of charges (“late charges,” “overdue balances,” “insurance premiums,” etc.) to which payments may be applied without the necessity for disclosure. In this context, the ruling only exempts (by interpretation) a creditor from having to disclose the mechanics involved in allocating credits to those “internal” charges which, in aggregate, constitute the balance in an open end credit plan. It is evident from the full text of the interpretive ruling that the ruling applies only where payments are allocated among charges; it does not apply where, as here, payments are allocated between accounts. Second, subsection (b) by its express terms, as well as by its title, applies solely to open end credit plans. It has no relation or application to payments or credits made with respect to an account which is “other than an open end credit plan.” As we have discussed earlier, an open end credit plan is distinguished from others in that such a plan is subject to finance charges; e. g., Carte Blanche’s airline account. Therefore, as Carte Blanche’s general account is not subject to finance charges, it is an “other than open end credit plan” and is accordingly beyond the reach of subsection (b). Finally, subsection (b) is directed solely to the allocation of monies within an account. It does not encompass the threshold allocation of monies between two distinct accounts. To the extent that subsection (b) comes into play, it does so only after an initial division of monies has been made as between, in this instance, the airline and general accounts. It is only the “internal” allocation of monies, as distinct from the initial division of monies, which need not be disclosed. Therefore, no matter how broadly the interpretive ruling may be read, it cannot exempt Carte Blanche from disclosing its division of monies between two separate accounts: one, an open end credit plan on which finance charges are imposed; and the other a general account not subject to such charges. It is this very Carte Blanche practice which is at issue here, for when Carte Blanche receives payments from a cardholder without instructions, see p. 1158 & note 5, supra, it unilaterally allocates the payment between the cardholder’s airline and general accounts. See examples at p. 1159 & n.7, supra. Having determined, contrary to the district court’s holding, that the interpretive ruling does not exempt Carte Blanche from disclosure of its allocation practice, we now consider whether such a disclosure, if not so exempted, is required by the Truth in Lending Act. For that determination, we turn to the statute. See Philbeck v. Timmers Chevrolet, Inc., 499 F.2d 971 (5th Cir. 1974). III. It is the declared congressional purpose of the Truth in Lending Act to assure consumers a meaningful disclosure of credit provisions, thus enabling the consumer to compare more readily various available credit terms and to avoid the uninformed use of credit. 15 U.S.C. § 1601; see Mourning v. Family Publications Service, Inc., 411 U.S. at 364, 93 S.Ct. 1652. The language of the Truth in Lending Act requires the creditor of a consumer open end credit plan to disclose the method by which a bal-anee is determined both before the opening of an account and by a periodic statement once the account has been opened. 15 U.S.C. § 1637(a)(2), (b)(8). Similar disclosure requirements are imposed by the implementing language of Regulation Z. See 12 C.F.R. § 226.-7(a)(2), (b)(8). Under Carte Blanche’s system of allocation, undisclosed to its cardholders, it is not until the succeeding billing cycle that a cardholder would discover that an airline account overpayment would not be applied to reduce the airline account balance. This we believe is in direct contravention of the express language of the Act which, as noted, requires disclosure of “the method of determining the balance upon which a finance charge will be imposed.” 15 U.S.C. § 1637(a)(2). The language here quoted is found in that section of the Act pertaining to disclosure before the opening of an account. A corresponding disclosure requirement is imposed upon a creditor once an account has been opened. 15 U.S.C. § 1637(b)(8). Although the language of (b)(8) is more detailed than that of (a)(2), this difference results only because (b)(8) contemplates the disclosure of transactions which can only occur after an account has been opened. Thus, (b)(8) in full requires a statement setting forth: (8) The balance on which the finance charge was computed and a statement of how the balance was determined. If the balance is determined without first deducting all credits during the period, that fact and the amount of such payments shall also be disclosed. 15 U.S.C. § 1637(b)(8); see Regulation Z, 12 C.F.R. § 226.7(b)(8). Here, under Carte Blanche’s procedure, airline account balances were computed “without first deducting all credits during the period.” Under such a practice, a cardholder would be uninformed as to whether monthly payments would or would not be allocated by Carte Blanche as “credits” to the cardholder’s airline account. The legislative history indicates to us that the crucial objective of the Act was to insure that consumers be afforded access to information so that they could compare the cost of credit. See 1968 U.S.Code Cong. & Admin.News át 1970 — 71. In our view, an informed comparison of credit costs, as well as an informed determination of credit use, cannot be made where a creditor does not disclose information concerning the manner in which payments are applied to reduce an outstanding credit balance. It is not realistic to expect that a consumer will be able to make an informed credit decision where, as here, the creditor fails to reveal that payments received will be divided between accounts subject to finance charges and accounts not subject to finance charges. In the context of Truth in Lending disclosures, we cannot conceive of anything more fundamental than the furnishing of this type of credit information to a credit consumer. Even if the statutory language of the Act were less explicit, and even if the announced congressional purpose were less clearly defined, we nonetheless would be obliged by sheer logic to hold that Carte Blanche’s allocation practices are within the scope of the Act’s required disclosure provisions. However, in resolving the issue presented here, we are not obliged to consider an ambiguous statute or an ill-defined congressional purpose. The statutory language before us is explicit and the congressional objective clear. In our view disclosure is required. IV. Inasmuch as we hold that plaintiff’s allegations state facts under which Carte Blanche was required to disclose the manner of its allocation of payments between accounts, the complaint suffices to state a cause of action arising under the Truth in Lending Act. Accordingly, Carte Blanche’s motion to dismiss the complaint should not have been granted. The other grounds for dismissal urged by Carte Blanche in its motion to dismiss (see pp. 1159, 1160 supra) were not ruled upon by the district court in light of its disposition (now held erroneous) of this motion. Hence, on remand those grounds, if renewed, should be considered together with any other issues that may be raised by the parties. We express no opinion as to the disposition of the other issues raised in defendant’s motion, none of which were ruled upon by the district court. We will reverse the order of April 30, 1974 which dismissed the complaint and remand to the district court for further proceedings consistent with this opinion. . Consumer Credit Protection Act, Tit. I, 82 Stat. 146, 15 U.S.C. § 1601 et seq. . As noted in our discussion, see infra at 1159, 1160, the district court properly considered defendant’s motion to dismiss as one for summary judgment inasmuch as the court considered matters outside the pleadings. Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972); Tomalewski v. State Farm Life Ins. Co., 494 F.2d 882 (3d Cir. 1973). Neither party on this appeal asserts that genuine issues exist as to material facts. Accordingly, the facts presented in the text are as stated in the pleadings, and in matters outside the pleadings which were considered by the district court. . See generally Katz v. Carte Blanche Corp., 496 F.2d 747 (3d Cir.) (en banc), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974). . If the general account charges are not paid in full within the requisite time period, late charges may be assessed on the overdue unpaid balances. As the plaintiff here does not allege that such late charges are in fact finance charges for which disclosure is required, compare Katz v. Carte Blanche Corp., 496 F.2d at 750 n.2, we do not treat this aspect of Carte Blanche’s practices. Cf. 12 C.F.R. § 226.401. It was represented to this Court at oral argument, however, that failure of a cardholder to tender prompt payment after late charges are imposed upon the general account, may result in the account being deemed delinquent, the account being terminated, and collection proceedings being instituted. For purposes of this appeal, we assume, as did the parties at oral argument, that a Carte Blanche general account is not subject to finance charges. . Nowhere in the Carte Blanche literature in the record before us, does it appear that the cardholders were ever advised that they could direct the manner of their payment to a particular account and in a particular sum. . Carte Blanche has since changed its practice in allocating overpayments to now apply such overpayments to the balance of the airline account, if such existed, even without instructions to do so by the cardholder. Carte Blanche Brief at 19 n.5. . For a complete illustration of Carte Blanche’s payment allocation practice, we describe two other factual circumstances. For these examples we make the same assumptions as are set out in the text. 3. Example 3: The cardholder, with no general account balance, pays a total of $600.00, an amount equal to the airline account charges. The airline account balance would be deemed paid in full. 4. Example 4: The cardholder, with no general account balance, fails to pay the airline account installment when due. Despite this failure, the amount of the airline account installment ($50.00) would be deducted from the airline account balance and would appear as a charge in the cardholder’s general account. Consequently, the cardholder would have an unpaid airline account balance of $550.00, upon which finance charges would be incurred. The cardholder would also have a general account balance of $50.00, which would not be subject to a finance charge, but which would be subject to Carte Blanche’s delinquency account procedures. See Carte Blanche Brief at 19 n.5. . Carte Blanche has never filed an answer to plaintiff’s complaint or amended complaint. Accordingly, only the allegations of the plaintiff’s complaint, as amended, are before us. The “factual” examples found in the text and footnotes were developed at oral argument. . With respect to this contention, Carte Blanche asserted that if the allegations of the complaint alleged a claim for relief, such claim for relief arose under the Federal Trade Commission Act, 15 U.S.C. § 45, the enforcement of which is exclusively vested in the Federal Trade Commission. See Moore v. N. Y. Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926). Given the nature and basis for our disposition of the instant case, we do not at this time reach the issue raised: that conduct constituting violation of the FTC Act cannot constitute a basis for private claims for relief under the Truth in Lending Act. . See Katz v. Carte Blanche Corp., 53 F.R.D. 539 (W.D.Pa.1971), rev’d, 496 F.2d 747 (3d Cir.) (en banc), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974). . Plaintiff’s original complaint alleged that Carte Blanche’s improper disclosure practices resulted in an overcharge to Zeltzer of $11.21. The amended complaint, however, stated that Zeltzer had suffered no actual monetary loss and therefore limited his claim for relief to statutory penalty, attorney’s fees and costs. 15 U.S.C § 1640(a). . By granting summary judgment on the merits to Carte Blanche on the ground that plaintiff’s allegations failed to state a cause of action under the Truth in Lending Act, the district court did not pass upon plaintiff’s motion for class determination. Also by reason of its disposition, the district court did not consider the other grounds for dismissal urged in Carte Blanche’s Rule 12 motion. . Regulation Z in part provides: (a) Opening new account. Before the first transaction is made on any open end credit account, the creditor shall disclose to the customer in a single written statement, which the customer may retain, in terminology consistent with the requirements of paragraph (b) of this section, each of the following items, to the extent applicable: ****** (2) The method of determining the balance upon which a finance charge may be imposed. 12 C.F.R. § 226.7(a)(2); . Regulation Z requires a creditor to provide a periodic statement for each billing cycle to a cardholder who has an outstanding account balance of more than $1.00. The periodic statement, in part, must set forth: (8) The balance on which the finance charge was computed, and a statement of how that balance was determined. If any balance is determined without first deducting all credits during the billing cycle, that fact and the amount of such credits shall also be disclosed. 12 C.F.R. § 226.7(b)(8). . Although the parties have devoted considerable discussion to the issue of the authority of the agency’s ruling and the extent to which it should control the disposition of this appeal, we do not reach that question. In our view, the interpretive ruling, 12 C.F.R. § 226.706, does not extend to the facts presented here. . The interpretive ruling, 12 C.F.R. § 226.706, provides: (a) Section 226.7(a)(2) provides that before the first transaction is made on any open end credit account, the creditor must disclose “the method of determining the balance upon which a finance charge may be imposed.” Section 226.7(b)(8) requires the creditor to disclose on the periodic statement “the balance on which the finance charge was computed, and a statement of how that balance was determined.” The question is raised whether these provisions require a creditor to provide a description of the manner in which payments or other credits are applied to various portions of the balance or balances on which finance charges are computed. (b) In disclosing the method of determining the balance(s) upon which finance charges are computed, it is not necessary to show the method of allocating payments or other credits. For example, explanation of the manner in which payments or credits may be applied to late charges, overdue balances, finance charges, insurance premiums, or other portions of balances is not required. Similarly, explanation of the method of allocating such payments between cash advance and purchase portions of the account is not required. Such explanations in many cases involve lengthy and complex descriptions which may unduly complicate disclosures. (c) Explanation of the allocation method may be made by creditors where it can be done in conformity with § 226.6(c) which authorizes additional information or explanations as long as they are not stated, utilized, or placed so as to mislead or confuse the customer or contradict, obscure, or detract attention from the required disclosures. . The interpretive ruling is entitled: “Open End Credit — allocation of payments” (emphasis added). . 15 U.S.C. § 1601 provides: Congressional findings and declaration of purpose The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. . The underscored portion of the statute was not in the original version of the bill, but appeared as an amendment sponsored by the Senate Subcommittee on Financial Institutions of the Senate Committee on Banking and Currency. 113 Cong.Rec. 14693 (1967). The amendment was designed to require disclosure of how balances were determined, since more than one method of' computing the base to which finance charges would be applied was known to exist. This amendment was in accordance with the recommendations made by Mr. J. L. Robertson, Vice Chairman of the Governors of the Federal Reserve System. See 113 Cong.Rec. 14693-5 (1967). Governor Robertson had testified that “more than one method is commonly used for computing the base to which the finance rate will be applied,” and that the disclosure required should include “the method of computing the balance against which the charge is imposed . . . Senate Hearings on S.5 before the Subcommittee on Financial Institutions of the Senate Committee on Banking and Currency, 90th Cong., 1st Sess., 662 (1967). . Under the examples posed supra at 1159, by operation of the former Carte Blanche system, the consumer would be deprived of the present value of $300 or $500. Such unwitting forfeiture of the potential to use credit or to earn interest is exactly the type of evil Congress sought to obviate. . The statutory terms, being remedial in nature, are to be liberally construed. See N. C. Freed Co., Inc. v. Board of Governors, 473 F.2d 1210 (2d Cir. 1973), cert. denied, 414 U.S. 827, 94 S.Ct. 48, 38 L.Ed.2d 61 (1974). Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 15. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:

songer_appel1_7_5

F

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). William WURTH, Plaintiff-Appellant, v. SWINDELL DRESSLER CORPORATION, Defendant-Appellee. No. 14205. United States Court of Appeals Seventh Circuit. Jan. 23, 1964. Sydney L. Berger, Wilbur F. Dassel, Evansville, Ind., for appellant. Fred P. Bamberger, Evansville, Ind., Bamberger, Foreman, Oswald & Hahn, Evansville, Ind., of counsel, for appellee. Before HASTINGS, Chief Judge, and DUFFY and CASTLE, Circuit Judges. DUFFY, Circuit Judge. This suit was brought to recover damages for injuries sustained by plaintiff in a fall from an overhead pipe upon which he had been seated. Plaintiff claims defendant was negligent in permitting gases to be discharged from a gas generator in the building in which plaintiff was working. At the conclusion of plaintiff’s case, the trial court sustained defendant’s motion for a directed verdict, and entered judgment for the defendant. The errors relied on arise from the granting of defendant’s motion for a directed verdict and also the Court’s refusal to allow plaintiff to reopen his case after he had rested. Plaintiff was an employee of a painting •contractor who had contracted to do certain painting work in Building 260 of the Warrick Works of the Aluminum Company of America located in Indiana. Defendant had agreed to install six baking kilns and necessary auxiliaries in Building 260. Plaintiff was a skilled painter with years of experience in high work. On April 29, 1960, he was painting an overhead pipe approximately thirty feet above the floor level. He was sitting on the pipe as he painted it. Plaintiff claims it was not practical to use a scaffold or a ladder to do this painting. As part of the installation of the carbon kilns, defendant installed gas generators which produced a gas composed of nitrogen, carbon dioxide and water vapor. None of these products are toxic. At or about 12:30 p.m. on April 29th, after eating his lunch, plaintiff resumed painting the pipe. He had with him a paint bucket, a paint brush, a wire brush and sandpaper. Plaintiff testified he hung the paint bucket and the brush on a conduit pipe. While working in a seated position, he passed beyond and to the south of a point directly over the generator. He detected no odor of gas. At about 2:30 p.m., using a lighter, plaintiff lit a cigarette and started smoking. He suddenly fell to the floor below, landing some ten or twelve feet south and a bit west of the generator. Plaintiff recalled nothing from the time he started smoking until he regained consciousness the next morning at the hospital. Plaintiff was seriously injured as a result of his fall. Building 260 is a large structure comprised of seven parallel bays, each having a peaked roof at the top of which is located a ventilator which runs approximately the length of each bay. The westernmost bay in which plaintiff was working is approximately sixty feet in width and more than thirty feet in height. Defendant admitted the generator produced a gas composed of 82.6% nitrogen, 11.3% carbon dioxide and 6.1% water vapor. Defendant also admitted that it started the generator on the morning of April 29, 1960, and that “the generator was in operation at least part of the day prior to the time when plaintiff fell from the pipe.” It is also admitted that there was an opening on the top of the generator which is called a blow-off vent. Defendant replied affirmatively to the interrogatory: “Did the generator discharge any gases or exhaust products into Building 260 on the 29th of April, 1960?” Wilbert Lemke was also a painter who was working in Building 260 at the time plaintiff fell. He testified that as he walked by the generator at some time on April 29, he saw “ * * * to my opinion, it was a kind of a bluish flame coming out of it and after it got, oh, I'd say five or six feet, something like that, the flame would dissolve and you couldn’t see it no more.” Defendant did not warn plaintiff or plaintiff’s employer that the generator was in operation on April 29, or that gases were discharged into the air inside the building. Also, there was testimony that defendant’s superintendent Crowe told Fred Jolly, superintendent of plaintiff’s employer, that he was “nutty” or “foolish” to allow plaintiff to work in the area while the generator was working. Although admitting that neither nitrogen nor carbon dioxide is toxic, it is plaintiff’s theory that such gases displaced oxygen in the air in the area where plaintiff was working. Plaintiff contends that if there is insufficient oxygen in the air, a person in such area is likely to faint. It is well established that on a motion for a directed verdict, the Court must consider the evidence in a light most favorable to the plaintiff, Cartwright v. Traylor Bros., 7 Cir., 288 F.2d 196, 197, and draw against the party making the motion all inferences which the jury might reasonably draw. Eggenschwiller v. Midwestern Motor Lodge Corp., 7 Cir., 286 F.2d 765, 767. The burden of proof was on the plaintiff to establish a causal connection between the admission of non-toxic gases into the large building where plaintiff was working, and plaintiff’s fall from a pipe located thirty feet above the floor level and not directly over the generator. The trial court based its ruling on the motion for a directed verdict upon the lack of proof of any harmful effect of the gases which were discharged in the building or in concentration sufficient to eliminate oxygen. In the absence of any evidence establishing a risk of harm or danger to the plaintiff from the defendant’s use of the generator, no duty arose which could be the basis of actionable negligence. Southern Ry. Co. v. Harpe, 223 Ind. 124, 129, 58 N.E.2d 346, 348. We think there was no causal relationship proved between defendant’s conduct and plaintiff’s injuries. In such a situation, the jury cannot be permitted to speculate as to the proximate cause of plaintiff’s injuries. We hold the trial court properly directed a verdict for the defendant. After plaintiff had rested his case, and after the trial court had commenced a discussion leading to its ruling granting a motion for a directed verdict, plaintiff moved that it be permitted to reopen its case, stating that it would call two additional witnesses and that the trial of the case would not be delayed. Plaintiff had not listed these witnesses at the time the pretrial order was entered or at any subsequent time. Plaintiff’s attorney said, “If the court feels that a general practitioner is not qualified I will endeavor to obtain somebody who is a specialist, although I don’t know what field or what specialty this particular problem would be and that is why I thought Dr. Liebendguth, as a general practitioner, general doctor, his testimony would be sufficient.” The Court denied the motion to reopen the case. Under the circumstances of this case, we do not think there was any abuse in the trial court’s discretion. Affirmed. • Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:

sc_petitioner

183

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. DUNN v. UNITED STATES No. 77-6949. Argued March 28, 1979 Decided June 4, 1979 Marshall, J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the case. Daniel J. Sears, by appointment of the Court, 439 U. S. 1064, argued the cause and filed briefs for petitioner. Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, William C. Bryson, Sidney M. Glaser, and Kathleen A. Felton. Mr. Justice Marshall delivered the opinion of the Court. Title IV of the Organized Crime Control Act of 1970, 18 U. S. C. § 1623 (1976 ed., Supp. I), prohibits false declarations made under oath “in any proceeding before or ancillary to any court or grand jury of the United States.” This case turns on the scope of the term ancillary proceeding in § 1623, a phrase not defined in that provision or elsewhere in the Criminal Code. More specifically, we must determine whether an interview in a private attorney’s office at which a sworn statement is given constitutes a proceeding ancillary to a court or grand jury within the meaning of the statute. I On June 16, 1976, petitioner Robert Dunn testified before a federal grand jury under a grant of immunity pursuant to 18 U. S. C. § 6002. The grand jury was investigating illicit drug activity at the Colorado State Penitentiary where petitioner had been incarcerated. Dunn’s testimony implicated a fellow inmate, Phillip Musgrave, in various drug-related offenses. Following petitioner’s appearance, the grand jury indicted Musgrave for conspiracy to manufacture and distribute methamphetamine. Several months later, on September 30, 1976, Dunn arrived without counsel in the office of Musgrave’s attorney, Michael Canges. In the presence of Canges and a notary public, petitioner made an oral statement under oath in which he recanted his grand jury testimony implicating Musgrave. Canges subsequently moved to dismiss the indictment against Musgrave, alleging that it was based on perjured testimony. In support of this motion, the attorney submitted a transcript of Dunn’s September 30 statement. The District Court held an evidentiary hearing on Mus-grave’s motion to dismiss on October 21, 1976. At that hearing, petitioner, who was then represented by counsel, adopted the statement he had given in Canges’ office and testified that only a small part of what he had told the grand jury was in fact true. App. 46. As a result of petitioner’s testimony, the Government reduced the charges against Mus-grave to misdemeanor possession of methamphetamine. See 21 U. S. C. § 844. Petitioner was subsequently indicted on five counts of making false declarations in violation of 18 U. S. C. § 1623 (1976 ed., Supp. I). The indictment charged that Dunn’s testimony before the grand jury was inconsistent with statements made “on September 30, 1976, while under oath as a witness in a proceeding ancillary to United States v. Musgrave, . . . to the degree that one of said declarations was false . . . App. 5-6. In response to petitioner’s motion for a bill of particulars, the Government indicated that it would rely on the “inconsistent declarations” method of proof authorized by § 1623 (c). Under that subsection, the Government must establish the materiality and inconsistency of declarations made in proceedings before or ancillary to a court or grand jury, but need not prove which of the declarations is false. See n. 1, supra. At trial, the Government introduced over objection pertinent parts of Dunn’s grand jury testimony, his testimony at the October 21 evidentiary hearing, and his sworn statement to Musgrave’s attorney. After the Government rested its case, petitioner renewed his objections in a motion for acquittal. He contended that the September 30 statement was not made in a proceeding ancillary to a federal court or grand jury as required by § 1623 (c). In addition, Dunn argued that use of his grand jury testimony to prove an inconsistent declaration would contravene the Government’s promise of immunity, in violatioxl of 18 U. S. C. § 6002 and the Fifth Amendment. The court denied the motion and submitted the case to the jury. Petitioner was convicted on three of the five counts of the indictment and sentenced to concurrent 5-year terms on each count. The Court of Appeals for the Tenth Circuit affirmed. 577 F. 2d 119 (1978). Although it agreed with petitioner that the interview in Canges’ office was not an ancillary proceeding under § 1623, the court determined that the October 21 hearing at which petitioner adopted his September statement was a proceeding ancillary to a grand jury investigation. 577 F. 2d, at 123. Acknowledging that the indictment specified the September 30 interview rather than the October 21 hearing as the ancillary proceeding, the Court of Appeals construed this discrepancy as a nonprejudicial variance between the indictment and proof at trial. Id., at 123-124. The court also upheld the use of petitioner’s immunized grand jury testimony to prove a § 1623 violation. In so ruling, the court stated that immunized testimony generally may not be used to establish an inconsistent declaration without a prior independent showing that the testimony is false. But, in the court’s view, petitioner’s unequivocal concession at the October hearing that he had testified falsely before the grand jury justified the Government’s reliance on that testimony. 577 F. 2d, at 125-126. We granted certiorari, 439 U. S. 1045 (1978). Because we disagree with the Court of Appeals’ ultimate disposition of the ancillary-proceeding issue, we reverse without reaching the question whether petitioner’s immunized testimony was admissible to prove a violation of § 1623. II A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment. Berger v. United States, 295 U. S. 78 (1935). In the instant case, since the indictment specified the September 30 interview rather than the October 21 hearing as the ancillary proceeding, the Court of Appeals identified a variance between the pleadings and the Government’s proof at trial. However, reasoning that petitioner’s October 21 testimony was “inextricably related” to his September 30 declaration, the court concluded that petitioner could have anticipated that the prosecution would introduce the October testimony. 577 F. 2d, at 123. The court therefore determined that the variance was not fatal to the Government’s case. See Kotteakos v. United States, 328 U. S. 750, 757 (1946). In our view, it is unnecessary to inquire, as did the Court of Appeals, whether petitioner was prejudiced by a variance between what was alleged in the indictment and what was proved at trial. For we discern no such variance. The indictment charged inconsistency between petitioner’s statements in the September 30 interview and his grand jury testimony. That was also the theory on which the case was tried and submitted to the jury. Indeed, the October 21 testimony was introduced by the Government only in rebuttal to dispel any inference that petitioner’s grand jury testimony was true. See Tr. 82-83. But while there was no variance between the indictment and proof at trial, there was a discrepancy between the basis on which the jury rendered its verdict and that on which the Court of Appeals sustained petitioner’s conviction. Whereas the jury was instructed to rest its decision on Dunn’s September statement, the Tenth Circuit predicated its affirmance on petitioner’s October testimony. The Government concedes that this ruling was erroneous. Brief for United States 15, 35; Tr. of Oral Arg. 25. We agree. To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process. New constitutional principles are more firmly established than a defendant’s right to be heard on the specific charges of which he is accused. See Eaton v. Tulsa, 415 U. S. 697, 698-699 (1974) (per curiam); Garner v. Louisiana, 368 U. S. 157, 163-164 (1961); Cole v. Arkansas, 333 U. S. 196, 201 (1948); De Jonge v. Oregon, 299 U. S. 353, 362 (1937). There is, to be sure, no glaring distinction between the Government’s theory at trial and the Tenth Circuit’s analysis on appeal. The jury might well have reached the same verdict had the prosecution built its case on petitioner’s October 21 testimony adopting his September 30 statement rather than on the September statement itself. But the offense was not so defined, and appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial. As we recognized in Cole v. Arkansas, supra, at 201, “[i]t is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.” Thus, unless the September 30 interview constituted an ancillary proceeding, petitioner’s conviction cannot stand. Ill Congress enacted § 1623 as part of the 1970 Organized Crime Control Act, Pub. L. 91-452, 84 Stat. 922, to facilitate perjury prosecutions and thereby enhance the reliability of testimony before federal courts and grand juries. S. Rep. No. 91-617, pp. 58-59 (1969). Invoking this broad congressional purpose, the Government argues for an expansive construction of the term ancillary proceeding. Under the Government’s analysis, false swearing in an affidavit poses the same threat to the factfinding process as false testimony in open court. Brief for United States 21. Thus, the Government contends that any statements made under oath for submission to a court, whether given in an attorney’s office or in a local bar and grill, fall within the ambit of § 1623. See Tr. of Oral Arg. 31. In our judgment, the term “proceeding,” which carries a somewhat more formal connotation, suggests that Congress had a narrower end in view when enacting § 1623. And the legislative history of the Organized Crime Contol Act confirms that conclusion. Section 1623 was a response to perceived evidentiary problems in demonstrating perjury under the existing federal statute, 18 U. S. C. § 1621. As Congress noted, the strict common-law requirements for establishing falsity which had been engrafted onto the federal perjury statute often made prosecution for false statements exceptionally difficult. By relieving the Government of the burden of proving which of two or more inconsistent declarations was false, see § 1623 (c), Congress sought to afford “greater assurance that testimony obtained in grand jury and court proceedings will aid the cause of truth.” S. Rep. No. 91-617, p. 59 (1969). But nothing in the language or legislative history of the statute suggests that Congress contemplated a relaxation of the Government’s burden of proof with respect to all inconsistent statements given under oath. Had Congress intended such a result, it presumably would have drafted § 1623 to encompass all sworn declarations irrespective of whether they were made in pro-eeedings before or ancillary to a court or grand jury. Particularly since Congress was aware that statements under oath were embraced by the federal perjury statute without regard to where they were given, the choice of less comprehensive language in § 1623 does not appear inadvertent. That Congress intended § 1623 to sweep less broadly than the perjury statute is also apparent from the origin of the term ancillary proceeding. As initially introduced in Congress, the Organized Crime Control Act contained a version of § 1623 which encompassed only inconsistent statements made in any “trial, hearing, or proceeding before any court or grand jury.” When asked to comment on the proposed statute, the Department of Justice noted that the scope of the inconsistent declarations provision was “not as inclusive” as the perjury statute. See Hearings on S. 30 et al. before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 372 (1969) (hereinafter S. 30 Hearings). Significantly, the Justice Department did not suggest that the provision be made coextensive with the perjury statute. However, in subsequent Senate Subcommittee hearings, Assistant Attorney General Wilson indicated, without elaboration, that the Department advocated “including [under § 1623] other testimony, preliminary testimony and other statements, in the perjury field.” Id., at 389. In response to that general suggestion, Senator McClellan, on behalf of the Subcommittee, sent a letter to the Assistant Attorney General clarifying its purpose: “You also read Title IV not to cover 'pre-trial depositions, affidavits and certifications.’ This was not our intent in drafting the bill. We had hoped that it would be applicable, for example, to situations such as [the] kind of pre-trial depositions that the enforcement of S. 1861 would present. If we included in the statute the phrase 'proceedings before or ancillary to any court or grand jury,’ do you feel that this intent would be adequately expressed?” Id., at 409. The Government attaches great significance to the qualification, “for example,” in Senator McClellan’s letter. Because pretrial depositions were mentioned as illustrative, the Government interprets the term ancillary proceeding to subsume affidavits and certifications as well. But that is not the inference the Department of Justice originally drew from the Senator’s letter. Responding to the proposed modification of § 1623, Assistant Attorney General Wilson did not advert to affidavits or certifications but stated only that “[inclusion of the phrase 'proceedings before or ancillary to any court or grand jury’ in the false statement provision would in our opinion adequately bring within the coverage of the provision pre-trial depositions such as that contained in S. 1861.” S. 30 Hearings 411. In our view, the Justice Department’s contemporaneous rather than its current interpretation offers the more plausible reading of the Subcommittee’s intent. Its attention having been drawn to the issue, had the Subcommittee wished to bring all affidavits and certifications within the statutory prohibition, Senator McClellan presumably would have so stated. Finally, to construe the term ancillary proceeding in § 1623 as excluding statements given in less formal contexts than depositions would comport with Congress’ use of the phrase in a related provision of the Organized Crime Control Act. Title II of the Act, 18 U. S. C. § 6002, authorizes extension of immunity to any witness who claims his privilege against self-incrimination “in a proceeding . . . ancillary to” a court, grand jury, or agency of the United States, or before Congress or one of its committees. See n. 2, supra. Although neither the House nor Senate Report defines the precise scope of § 6002, they both specify pretrial depositions as the sole example of what would constitute an ancillary proceeding under that provision. H. R. Rep. No. 91-1549, p. 42 (1970); S. Rep. No. 91-617, p. 145 (1969). Thus, both the language and history of the Act support the Court of Appeals’ conclusion that petitioner’s September 30 interview “lack[ed] the degree of formality” required by § 1623. 577 F. 2d, at 123. For the Government does not and could not seriously maintain that the interview in Canges’ office constituted a deposition. See Tr. of Oral Arg. 25. Mu'sgrave’s counsel made no attempt to comply with the procedural safeguards for depositions set forth in Fed. Rule Crim. Proc. 15 and 18 U. S. C. § 3503. A court order authorizing the deposition was never obtained. Nor did petitioner receive formal notice of the proceeding or of his right to have counsel present. Indeed, petitioner did not even certify the transcript of the interview as accurate. To characterize such an interview as an ancillary proceeding would not only take liberties with the language and legislative history of § 1623, it would also contravene this Court’s long-established practice of resolving questions concerning the ambit of a criminal statute in favor of lenity. Huddleston v. United States, 415 U. S. 814, 831 (1974); Rewis v. United States, 401 U. S. 808, 812 (1971); Bell v. United States, 349 U. S. 81, 83 (1955). This practice reflects not merely a convenient maxim of statutory construction. Rather, it is rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited. Grayned v. City of Rockford, 408 U. S. 104, 108 (1972); United States v. Harriss, 347 U. S. 612, 617 (1954); Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939); McBoyle v. United States, 283 U. S. 25, 27 (1931). Thus, to ensure that a legislature speaks with special clarity when marking the boundaries of criminal conduct, courts must decline to impose punishment for actions that are not “ 'plainly and unmistakably’ ” proscribed. United States v. Gradwell, 243 U. S. 476, 485 (1917). We cannot conclude here that Congress in fact intended or clearly expressed an intent that § 1623 should encompass statements made in contexts less formal than a deposition. Accordingly, we hold that petitioner’s September 30 declarations were not given in a proceeding ancillary to a court or grand jury within the meaning of the statute. The judgment of the Court of Appeals is Reversed. Mr. Justice Powell took no part in the consideration or decision of this case. In pertinent part, 18 U. S. C. § 1623 (1976 ed., Supp. I) provides: “(a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined not more than $10,000 or imprisoned not more than five years, or both. “(c) An indictment or information for violation of this section alleging that, in any proceedings before or ancillary to any court or grand jury of the 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_numresp

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. LUNATI et al. v. BARRETT. No. 7824. Circuit Court of Appeals, Sixth Circuit. June 8, 1939. Lynn A. Williams and R. O. Hinkle, both of Chicago, Ill. (Lynn A. Williams and Ross O. Hinkle, both, of Chicago, Ill., and A. H. Edgerton, of Cleveland, Ohio, on the brief), for appellants. Ralph Kalish, of St. Louis, Mo. (Ralph Kalish, of St. Louis, Mo., and Frank Harrison and Squire, Sanders & Dempsey, all of Cleveland, Ohio, on the brief), for appellee. Before HICKS, SIMONS, and HAMILTON, Circuit Judges. SIMONS, Circuit Judge. The patent involved in the present infringement suit is for a lifting device for motor vehicles granted to Lunati September 1, 1925, and numbered 1,552,326. It has for its object the providing of a device whereby a vehicle may be elevated to permit ready access to its mechanism for the purpose of repairing, cleaning and lubricating, and is of the single column hydraulic type now commonly seen at repair garages and greasing stations. The Lunati claims in suit are 3 and 4, printed in the margin. It was held below that the defendant did not infringe. There was no decision as to validity, since the defendant proved no direct anticipation, failed to give notice of lack of invention as a defense, and was not permitted belatedly to amend. While proof of the state of the art is admissible without notice to aid the court in the construction of the patent, Dunbar v. Meyers, 94 U.S. 187, 24 L.Ed. 34, it is not clear that invalidity may be adjudicated without affirmatively pleading it unless the patent is void on its face. Brown v. Piper, 91 U.S. 37, 44, 23 L.Ed. 200. Cf. Slawson v. Grand Street P. P. & F. R. R. Co., 107. U.S. 649, 652, 2 S.Ct. 663, 27 L.Ed. 576. We limit our consideration of the controversy likewise to the question of infringement, but upon this issue; since it requires claim construction, it becomes necessary to explore the prior art and to ascertain where in the disclosure the quality of invention, if any, resides. Lunati did not invent a hydraulic lifting device: Moreover, the appellant concedes that if spaced parallel rails arranged on opposite sides of the supporting member were omitted it would render the claims in suit descriptive of ordinary hydraulic platform elevators, and they would then be the equivalent of claims of the original application, which were rejected and cancelled. While we recognize that the patent is for a combination, and that the combination may be new, even though its elements be old, yet to be patentable there must be invention in the thought of combining them, and certainly it cannot be conceived that invention resides in the substitution of spaced parallel rails for the platform of conventional hydraulic lifts exemplified in the patent to Milliken, No. 243,391, June 28, 1881, nor that in devising means for lifting a motor vehicle of predetermined and standardized gauge rather than packing cases or wheel barrows, spaced parallel rails, even if not otherwise obvious, are not clearly suggested by the spaced parallel rails of earlier greasing pits or the rails of the pit-jacks illustrated in Wood, No. 657,148, and Appleton and McCoy, 1,002,797, even were we to give no thought to the channel bars of Gearing and McGee, 877,709, or the rails of Bauman, 1,087,424, of the identical art, because they were not to be elevated by a single or double column hydraulic hoist. The inventive concept of the patent must therefore necessarily reside in the thought of combining with these old elements the specific supporting means or cross-head of the patent by which the spaced rails are carried from the single cylinder head of the combination, and here there may have been room for invention, for difficulty may be perceived in designing and positioning a supporting member so as to carry rails upon which a weight of two or more tons would be suspended on a single base without such obstruction thereunder as would defeat the purpose of the inventor. The supporting means are set forth with some precision in the claims in suit, their configuration and positioning being covered by amendment to overcome claim rejection in the patent office upon the prior art, and they are depicted in the drawings. The supporting member of the combination is characterized in claim 3 as “being provided with outwardly diverging portions secured at their ends to said rails near the centers thereof, said rails being relatively long and free from extraneous elements from their ends to the diverging portions of said supporting member” and in claim 4 thus: “The sides of said supporting member being arranged beneath and secured to said rails near their centers, said supporting member, centrally of and parallel to said rails being relatively short, said rails being relatively long and free from extraneous elements from their ends to the diverging portions of said supporting member.” As depicted in the drawings, the sides of the supporting member on either side of the cylinder head have extensions which diverge in opposite directions from each other and toward opposite ends of the supported rail, or as described by witnesses “flare.” Thus it results that the supporting member on a line “centrally of and parallel to said rails” is relatively short, as described in claim 4. The defendant’s cross-head has extensions which form straight bars from rail to rail. There is no divergence of their ends in respect to each other, and no flare as they approach the supported rails. The issue below was whether this was the equivalent of the cross-head of the patent, and much refinement of argument is pressed by the appellant to demonstrate that it is. The word “diverging” was not included in either of the cancelled claims 3 and 4, nor was the cross-head there referred to. The appellant argues that the configuration of the cross-head now carried into the claims describing its ends as outwardly diverging is not limited to extensions on either side of the cross-head diverging from each other toward the ends of the rails, but permissibly includes ends that diverge outwardly in opposite directions from the cylinder head to the rails where they are attached “near the centers thereof.” It is sufficient characterization of this argument to say that it is probably the best that could be made. When the claims specify a “supporting” member for spaced parallel rails on opposite sides of the cylinder head, it approaches the absurd to insist that its ends must then be further described as diverging from the cylinder head to meet the rails which they support as though otherwise the rails might be thought to be suspended in space. But conceding that an overly literal solicitor in an excess of caution might wish to insert in the claims a description of the exact configuration of the cross-head to show that it was not a solid block but was provided with extensions to meet the rails and so be secured to the rails at their ends, he would more commonly and naturally describe these ends as outwardly or laterally extended portions than as diverging ends of the supporting member. We need not, however, indulge in this speculation. The description of the supporting member in claim 4 to the effect that “centrally of and parallel to said rails” it is relatively short clearly demonstrates that elsewhere it is longer, and if its relative relation to the rails was intended there would have been no need of centering this dimension. It follows that the claims contain a limitation that cross-head ends diverge from each other and not from the cylinder head. And this concept of the flare of the cross-head extensions is supported by the drawings which are not limited to a preferred form. There is moreover an obvious functional virtue in the diverging ends of the cross-head, and it requires neither argument nor demonstration to point out that a rail carrying a heavy weight may the more easily be kept in balance on a broader base than on one comparatively short. We agree with the court below that this limitation does not read upon the supporting member of the defendant, though we do not attach the same significance to the word “outwardly” since it is impossible to conceive that solids may diverge otherwise than outwardly when the divergence is conceived of in the same plane. The appellant argues that even though we consider this a limitation there is no estoppel by reason of the amendment because other limitations were therein incorporated, including narrow spaced parallel rails, arranged on opposite sides of the supporting member, and secured at their ends near the centers of the rails, the latter being relatively long and free from extraneous elements from their ends to the extensions of the supporting member. We are, however, dealing with a combination, the elements of which were old, precisely limited to avoid prior art. If the defendant does not have this combination he does not infringe. The claims in suit must be narrowly construed within the principle so often applied in this court that where claims define an element in terms of form, location, or function, thereby creating an express limitation, where that limitation pertains to the inventive step and imports a substantial function which the patentee considered of importance, the court cannot be permitted to say that other forms which the inventor thus declared not equivalent are so to be treated. D’Arcy Spring Co. v. Marshall Ventilated Mattress Co., 6 Cir., 259 F. 236, 240; Hollingshead Company v. Bassick Mfg. Co., 6 Cir., 73 F.2d 543, 548; Directoplate Corp. v. Donaldson Lithographing Co., 6 Cir., 51 F.2d 199, and our recent decision in Valjean v. Perfection Stove Co., 6 Cir., 103 F.2d 60. Whether our conclusion be based upon estoppel in patent office proceedings or upon a limitation voluntarily inserted in the claims to avoid prior art seems to us unimportant. The result in claim construction is the same. The decree below is affirmed. 3. A vehicle lifting device comprising a vertical cylinder, a piston mounted to reciprocate therein, means for supplying fluid pressure to said cylinder to lift said piston, a supporting member carried by the upper end of said piston, and a pair of spaced parallel rails arranged on opposite sides of said supporting member, said member being provided with outwardly diverging portions secured at their ends to said rails near the centers thereof, said rails being relatively long and free from extraneous elements from their ends to the diverging portions of said supporting member. 4. A vehicle lifting device comprising a vertical cylinder, a piston mounted to reciprocate therein, means for supplying fluid pressure to said cylinder to lift said piston, a supporting member carried by the upper end of said piston, and a pair of spaced parallel rails arranged on opposite sides of said supporting member, the sides of said supporting member being arranged beneath and secured to said rails near their centers, said supporting member, centrally of and parallel to said rails being relatively short, said rails being relatively long and free from extraneous elements from their ends to the diverging portions of said supporting member. Question: What is the total number of respondents in the case? Answer with a number. Answer:

songer_respond2_1_3

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 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. NEW YORK TRUST CO. v. WATTS-RITTER & CO. et al. No. 3256. Circuit Court of Appeals, Fourth Circuit. April 12, 1932. Jesse E. Waid, of New York City, and E. A. Bowers, of Elkins, W. Va. (White & Case and Carlos L. Israels, all of New York City, on the brief), for appellant. D. H. Hill Arnold, of Elkins, W. Va., and James A. Meredith, of Fairmont, W. Va. (K. C. Moore, of Fairmont, W. Va., on the brief), for appellees. Be Fore PARKER and N0RT11Ü0TT, Circuit Judges, and HAYES, District Judge. JSTORTHCOTT, Circuit Judge. Bertha Consumers’ Company, hereinafter called the “Company,” is a Pennsylvania corporation, and, prior to the receivership referred to below, maintained and operated extensive coal mining properties in the states of Pennsylvania, West Virginia, and Kentucky. On or about June 1, 1924, it executed its first mortgage and deed of trust, hereinafter called the “Mortgage” to the New York Trust Company, as trustee (appellant), to secure an authorized issue of $2,000,000 of first mortgage bonds. Upon the application of two of its general creditors, to which the Company consented, the Company was placed in receivership in the United States District Court for the "Western District of Pennsylvania, by order of said court, dated March 5, 1928. The same creditors filed their ancillary bill of complaint in the District Court of the United States for the Northern District of West Virginia, on March 8, 1928, the Company being sole defendant, and simultaneously therewith there was filed a so-called “Waiver and Consent” of the New York Trust Company, as trustee, reading as follows : “The New York Trust Company, Trustee under the First Mortgage of the Bertha Consumers Company, dated June 1st, 1924, hereby -waives notice of an application for 1he appointment of a receiver or receivers in the above entitled suit, in the above entitled Court, and consents that the said application for the appointment of receivers may be heard without further notice to it. “Dated, Mareh 2, 1928 “The New York Trust Company, Trustee under the First Mortgage, dated June 1st, 1924, of the Bertha Consumers Company, by B. G. Curtis, Vice-President.” By its order entered March 8, 1928, that District Court appointed ancillary receivers, reciting in the order that: “This cause came on to be heard upon the bill and answer of the defendant thereto, and upon Hie appearance and waiver of notice and consent to the appointment of the Receiver by The New York Trust Company, Trustee, all of which are ordered filed The appellant was not named as a party in the pleadings in either suit and process was not served upon it. Appellees contend, however, that it became a party to the suit for the appointment of ancillary receivers by the filing of the waiver of notice, which, it is contended, constituted a general appearance in that suit. Said receivers were authorized to operate said coal company, but by paragraph 8 of said decree the expenditures for operation were limited to only such sums of money as would come into tlieir hands. Said decree contained no limitation upon the expenditures that should bo made by the receivers in preserving the property, and the primary object of said suit was claimed to be the preservation of the property. The receiver's and ancillary receivers continued to conduct the business of the company for some two years. The ancillary receivers in the Northern District of West Virginia incurred substantial debts and operating losses. They are indebted, inter alia, to tlio appellee Monongahela West Penn Public Service Company. By an order entered May 24, 1980, the court directed the receivers to cease operation of the mines, and in the order the court recited that “as -well came New York Trust Company, a corporation, as Trustee under the said defendant’s First Mortgage.” By its further order entered Juno 2,1980, the court by express direction corrected its order of May 24,1980, and struck therefrom the statement “as well came New York Trust Company, a corporation, as Trustee under the said defendant’s First Mortgage.” On September 17, 1980, appellant filed its special appearance to contest the jurisdiction of the District Court over it or over its interest in the property described in or covered by the Mortgage, upon the grounds: “First: That it has heretofore never appeared in this cause, either generally or specially, has never consented to the receivership existing in this cause, is not a party thereto, and has never participated in any of the proceedings in this cause. “Second: That the statutory requirements necessary to obtain jurisdiction in this cause over it or over its interest in said mortgaged property have never been performed or fulfilled.” Appellant further moved the District Court to expunge and remove from the order of Mareh 8, 1928, the recital that it had appeared and consented to the appointment of receivers, and requested the entry of a supplemental order expressly finding and adjudicating that appellant had never theretofore appeared in the cause nor consented to the receivership. Simultaneously thex'ewith, appellant filed its notice of motion and petition for leave to foreclose the Mortgage by-suit separate from and independent of the pending proceedings, and annexed thereto its proposed ancillary bill of' complaint. Appellant’s petition to correct the order of March 8, 1928, and to institute a suit “independent and separate from this proceeding,” was denied, but the right of appellant to institute proceedings to enforce its lien in the pending suit was not denied. During the interim between the appointment of the receivers and the filing of this petition, the receivership had contracted a large amount of indebtedness, some part of which must necessarily have been preservation costs and some part operating costs. Appellee Monongahela West Penn Public Service Company had furnished power to the receivership. It had filed its several petitions seeking collection of its power bills (one on March 28, 1980, and one on May 2, 1930), or, failing in that, the right to disconnect and refuse to furnish power to the receivership. On May 10, 1980; the court refused to permit appellees to' discontinue its service, but such right was subsequently given on May 24, 1930. On June 2, 1930, Brock and Courtney, claiming to have a first lien on a large portion of the properties involved in the receivership, and that said lien took priority over the mortgage of appellant, filed their petition seeking foreclosure in the receivership suits, and on said date the District Court entered an order referring said receivership proceedings to a special master in equity to ascertain. and report all liens upon the property and the indebtedness of the receivers. In the proceedings in the court below appearance was entered for a bondholder’s protective committee representing the ‘holders of the bonds secured by the deed of trust, in which appellant was named as trustee. Whether all of the bondholders were represented by this committee is not shown by the record. The first question to be considered is whether there was a general appearance by the appellant trustee. The order of the court recites that the order appointing the ancillary receivers was entered “ * * * upon the appearance and waiver of notice and consent to the appointment of the receiver by'The New York Trust Company, Trustee * * While promptly (within nine days) on June 2, 1930, an order, entered on May 24, 1930, reciting trustee’s appearance, was corrected, yet no such action was attempted to be taken as to the order of March 8, 1928, until September 17, 1930, a period of over eighteen months. During this period the trustee must have known, or by the slightest inquiry could have known, of the recital of its appearance and consent. Admittedly having notice of the application to appoint the ancillary receivers, as shown by its waiver, it certainly was its duty as trustee to keep informed as to the result of the application. That the appellant did keep informed as to the various steps taken in the suit is properly to be inferred from the record. The inference is irresistible that the trustee knew of the result of the application and must have had knowledge of the terms of the order of March 8, 1928. It is not necessary to cite authority td the effect that appellant is chargeable with knowledge it could have acquired by proper inquiry, which inquiry it was its duty to make. The appellant, having knowledge of the appointment of the receivers, and the fact that the order appointing them recited its appearance and consent, and the further fact that the receivers had taken over and were preserving as well as’ operating the properties of the Company and were necessarily incurring expense in so doing, stood silent for a long period without protesting. Appellant only attempted to avoid the consequences of the receivership and enforce its lien after it had become known that the receivership would not accomplish the hoped-for result of saving the business of the Bertha Consumers’ Company as a going business. It has always been a settled principal of equity that “one who remains silent when he should have spoken will not be heard when he should be silent.” Charles L. Hayward v. Eliot National Bank, 96 U. S. 611, 24 L. Ed. 855; United States v. Shrewsbury, 23 Wall. 508, 23 L. Ed. 78. This doctrine is especially applicable where, as here, the appellant must have known that material expense was necessarily being incurred. Close v. Glenwood Cemetery, 107 U. S. 466, 2 S. Ct. 267, 27 L. Ed. 408; Roberts v. Northern Pacific R. Co., 158 U. S. 1, 15 S. Ct. 756, 39 L. Ed. 873; Simmons v. Burlington, C. R. & N. R. Co., 159 U. S, 278, 16 S. Ct. 1, 40 L. Ed. 150; O’Brien v. Wheelock, 184 U. S. 450, 22 S. Ct. 354, 46 L. Ed. 636. “Where a person advisedly remains inactive for a considerable time, or by his conduct induces another to believe that he will not question a transaction, and that other, relying on 'such attitude, incurs material expenses, such person is estopped from impeaching the transaction to the other’s prejudice.” F. E. Tallman et al. v. A. M. Cunningham, Trustee (W. Va.) 161 S. E. 22. The appellee Monongahela West Penn Public Service Company not only furnished the current for the operation of the mines, which necessarily included pumping them, but did so as to a part of its claim only after asking the court to be relieved from such furnishing. The conclusion is inevitable that the appellant stood silent hoping for a successful outcome of the receivership, and only moved when it became certain that failure had resulted. Such a course is calculated to shock the conscience of a chancellor rather than meet with his approval, and raises the question as to whether it would amount to contempt. The trustee by its conduct is estopped from denying that the recital in the order of March 8, 1928, is a verity, Simmons v. Burlington, C. R. & N. R. Co., supra, and the filing of the waiver, coupled with its conduct, in our opinion, constituted a general appearance. The holders of the bonds, or at least some of them, appeared in the suit and knew that the receivership was being operated, necessarily, at some expense. There is still another reason why the order complained of was right in refusing to allow an independent suit to he instituted by appellant. The court below had possession of the property, and could, in the pending suit, adjudicate all questions in connection therewith, including all rights claimed by appellant. Why allow the bringing of an independent suit? Certainly the question was addressed to the sound discretion of the court below, and that discretion was not only not abused, but was soundly exercised. As was said by Judge (afterwards Chief Justice) Taft in Continental Trust Co. et al. v. Toledo, St. L. & K. C. R. Co. (C. C.) 82 F. 642, it is the duty of the court to consolidate causes, where no one will he injured thereby. Here the action of the court below in requiring the whole matter to be adjudicated in the pending suit was proper. It is also to be remembered that in the pending suit there were claims of prior liens on at least part of the property sought to be subjected to the deed of trust in which appellant was trustee. There was no ejror in the decree of the court below, and it is accordingly affirmed. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:

songer_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. UNITED STATES of America, Plaintiff-Appellee, v. Jack C. TURNER, Defendant-Appellant. No. 87-5735. United States Court of Appeals, Eleventh Circuit. May 9, 1989. Joel Kaplan, Miami, Fla., for defendant-appellant. Dexter Lehtinen, U.S. Atty., David A. Acton, Sonia Escobio O’Donnell, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee. Before TJOFLAT and JOHNSON, Circuit Judges, and BROWN , Senior Circuit Judge. Honorable John R. Brown, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by designation. JOHNSON, Circuit Judge: This case arises on appeal from appellant’s conviction on one count of conspiracy to transport stolen securities in violation of 18 U.S.C.A. § 371 and two counts of transporting stolen securities in interstate commerce in violation of 18 U.S.C.A. §§ 2 and 2314. We affirm. I. FACTS On November 16, 1984, a federal grand jury in the Southern District of Florida issued a three-count indictment against appellant Jack C. Turner. In Count I, the indictment charged Turner with conspiracy to transport seventy stolen bearer bonds from Philadelphia to West Palm Beach and conspiracy to transport a check in the amount of $341,626.25, representing the proceeds from the sale of the bearer bonds, from Florida to London, England, in violation of 18 U.S.C.A. § 371. In Count II, the indictment charged Turner with aiding and abetting the transportation of stolen bearer bonds from Philadelphia to West Palm Beach in violation of 18 U.S.C.A. §§ 2 and 2314. In Count III, the indictment charged Turner with aiding and abetting the transportation of a check for $341,626.25 from Florida to London, England, in violation of 18 U.S.C.A. §§ 2 and 2314. This prosecution arose from the theft of 169 bearer bonds issued by the Idaho Housing Agency and purchased by Manufacturers Hanover Trust of New York. The theft occurred sometime between November 1982, when Manufacturers Hanover Trust purchased the bonds for First Interstate Bank, and December 1982, when First Interstate Bank realized it had never received the bonds. Lewis, who originally possessed the bonds, and Bushey, his partner, decided to liquidate seventy of the bonds. Two intermediaries, Coyne and Boone, approached appellant Turner to see if Turner would help sell the bonds. Turner checked with an independent source to determine if the bonds had been designated as stolen. When he was assured that the relevant reporting institution did not yet identify these bonds as stolen, Turner agreed to help in return for a thirty-five percent share of the proceeds from the sale of the bonds. On November 16, 1982, Coyne flew to Miami from Philadelphia at Turner’s expense where he met with Turner and another man named Jackson. Lewis had also flown to Miami with the bonds, although at his own expense. Lewis gave the bonds to Coyne, who in turn showed the bonds to Turner. After discussing ways to sell the bonds, Turner and Coyne agreed to have Coyne’s brother Michael cash in the bonds in return for a fee of fifteen thousand dollars. Turner agreed to send Michael Coyne a plane ticket to fly from Philadelphia to Miami. When Michael Coyne arrived in Miami, he checked into a hotel using Turner’s credit card under the alias of Michael Cox. On November 18, 1982, Turner took Michael and John Coyne to Hanover Stern, a firm that deals exclusively in municipal and tax free bonds. Michael Coyne, still using the name Michael Cox, delivered the bonds to Joe Jean, a broker at Hanover Stern, with the understanding that the bonds would be sent to New York City and that the proceeds would be available in approximately one week. Immediately after the transaction was completed, Turner drove John and Michael Coyne to the airport. On the way, Turner explained that he would receive thirty-five percent of the proceeds, while the Coynes would receive thirty percent. When Michael Coyne returned to West Palm Beach nine days later to pick up his share of the proceeds, he discovered that the check for the proceeds had gone to London to be cashed. That check was never cashed. The British police arrested the holder of the check, Jackson, when Jackson attempted to cash it through a recognized member of the London criminal underworld, Stafford, whom the British police had been investigating. When Stafford met Jackson in Jackson’s hotel room, the police monitored and recorded the conversations. The British police also recorded conversations between Jackson and a female companion, Stanfield. This continued until December 2, 1982, when the British police arrested Jackson, Stafford, Stanfield, and Bushey, who had traveled to London from Switzerland to meet with Jackson. Turner was convicted on all three counts charged in the indictment. On Count One, the conspiracy count, he was sentenced to eighteen months’ incarceration and fined $5,000. On Count Two, transportation of the bonds from Philadelphia to West Palm Beach, he received five years’ probation. On Count Three, transportation of the bonds from Florida to London, he received five years’ probation to be served concurrently with the probation imposed on Count Two. The probation was to run consecutive to the incarceration. Turner raises three issues on appeal. He argues that the district court erred in instructing the jury on the elements of 18 U.S.C.A. § 2314; that the government violated the district court’s discovery order by failing to provide him prior to trial with transcripts of conversations recorded in London and that the district court erred by not excluding the evidence as a sanction; and that the district court erred by admitting evidence of these conversations because they constituted inadmissible hearsay. II. DISCUSSION A. Jury Instruction Turner challenges the district court’s jury instruction on the elements of 18 U.S. C.A. § 2314. Section 2314 makes illegal the transportation “in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud....” The district court’s original jury instruction on knowledge was as follows: The proof need not show who may have stolen the property involved, only that the Defendant knew it had been stolen or taken by fraud at the time it was transported. (emphasis added) After the jury began deliberating, it requested clarification of the underlined portion of the charge. The jury asked, “Does the time in Count II end once the 70 bonds arrived in West Palm Beach?” The district court responded, “No, please follow all the Court’s instructions as a whole.” Turner argues that this response was incorrect on the law, and that the response allowed the jury to convict him of a crime not charged in the indictment. The district court has broad discretion in formulating a jury charge so long as the charge as a whole accurately reflects the law and the facts. United States v. Silverman, 745 F.2d 1386, 1395 (11th Cir.1984); United States v. Walker, 720 F.2d 1527, 1541 (11th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984). This Court will not reverse a conviction unless, after examining the entire charge, the Court finds that the issues of law were presented inaccurately, United States v. Gordon, 817 F.2d 1538, 1542 (11th Cir.1987) (per curiam), vacated in part, 836 F.2d 1312 (11th Cir.), cert. dismissed, — U.S. -, 109 S.Ct. 28, 101 L.Ed.2d 979 (1988); the charge included crimes not contained in the indictment, United States v. Peel, 837 F.2d 975 (11th Cir.1988); or the charge improperly guided the jury in such a substantial way as to violate due process. United States v. Pruitt, 763 F.2d 1256 (11th Cir.1985), cert. denied, 474 U.S. 1084, 106 S.Ct. 856, 88 L.Ed.2d 896 (1986). The district court’s answer to the jury’s question, that the time by which defendant had to know the bonds were stolen in Count II did not end once the bonds arrived in West Palm Beach, accurately reflected the law. Turner violated 18 U.S.C.A. § 2314 and 18 U.S.C.A. § 2 if he aided in the transportation of stolen bonds within a single state if that intrastate transportation was a continuation of interstate transportation. United States v. Block, 755 F.2d 770, 774 (11th Cir.1985) (citing McElroy v. United States, 455 U.S. 642, 654, 102 S.Ct. 1332, 1339, 71 L.Ed.2d 522 (1982) (“the stream of interstate commerce may continue after a state border has been crossed”)). The bonds need not have been stolen at the time they crossed state lines, and therefore defendant need not have known that the bonds were stolen when they entered Florida. In fact, the bonds need not even have crossed state lines as long as they were in interstate transportation. United States v. Schar dar, 850 F.2d 1457, 1461 (11th Cir.), cert. denied, — U.S. -, 109 S.Ct. 326, 102 L.Ed.2d 343 (1988). The district court correctly responded to the jury’s question because the transportation of the bonds within the State of Florida was a continuation of the transportation of the bonds from Philadelphia to West Palm Beach. See generally Block, 755 F.2d at 775. Turner argues that the district court’s response enabled the jury to convict him of a crime not charged in the indictment. See United States v. Stirone, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (criminal defendant has right to be tried on only charges contained in the indictment). The indictment charged Turner with aiding and abetting the interstate transportation of stolen bonds from Philadelphia to West Palm Beach. The district court correctly responded to the jury’s question, and then referred the jury to the charge as a whole. That charge mirrored Count Two of the indictment. Comparing the jury charge with the indictment, we hold that defendant was not convicted of a crime not charged in the indictment. The jury charge and the court’s response as a whole accurately reflected the facts and the applicable law. See generally United States v. Bent, 707 F.2d 1190, 1195 (11th Cir.1983), cert. denied, 466 U.S. 960, 104 S.Ct. 2174, 80 L.Ed.2d 557 (1984) (review of supplemental jury instruction involves review of all instructions given to determine whether instructions as a whole accurately presented the law). To the extent the district court’s response may have included some risk of confusing the jury, it did not by itself so infect the entire trial that Turner’s conviction must be overturned as a violation of due process. See generally United States v. Pruitt, 763 F.2d at 1260. Consequently, we find no reversible error in the district court’s jury charge or in its response to the jury’s request for clarification of the charge. B. Discovery Violation Between November 29, 1982, and December 2, 1982, the British police recorded conversations in London between Jackson, who had the check representing the proceeds from the sale of the stolen bonds, and Stafford, the British citizen who was to liquidate the check. The British police also recorded conversations between Jackson and Stanfield, a female acquaintance. British Inspector McGoohan testified at trial regarding the substance of these conversations, and the United States used transcripts made of the conversations to refresh Inspector McGoohan’s recollection during his testimony. Defendant argues that the United States violated the Standing Discovery Order in the Southern District of Florida by failing to provide him prior to the trial with tape recordings and transcripts of these conversations. The district court entered the discovery order on December 3, 1984, and patterned the order after the provisions of Fed.R.Crim.P. 16(a)(1)(A). Defendant argues that Fed.R.Crim.P. 16(c) required the government to notify him of the existence of the transcripts once it received them, because the transcripts were subject to a request submitted under Fed.R.Crim.P. 16(a)(1)(C) and were subject to the Standing Discovery Order. Fed.R. Crim.P. 16(a)(1)(C) provides: Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defendant’s defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant. Defendant argues that because the government violated Rule 16(c), the district court should have excluded McGoohan’s testimony as a sanction. We assume for purposes of this discussion that the government violated Rule 16(c) by failing to comply with either Rule 16(a)(1)(C) or the district court’s discovery order. Under Fed.R.Crim.P. 16(d)(2), the district court had the power to enforce its discovery orders. The district court’s exercise of that power was a matter of discretion, and will be reversed only for an abuse of that discretion. See United States v. Fernandez, 780 F.2d 1573, 1576 (11th Cir.1986) (per curiam). As a general rule, the district court should impose the least severe sanction necessary to ensure prompt and complete compliance with its discovery orders. See generally United States v. Euceda-Hernandez, 768 F.2d 1307, 1312 (11th Cir.1985). Factors for the district court to consider in deciding to impose a sanction include reasons for the delay in complying with the discovery order, whether there was any bad faith on the part of the prosecution, prejudice to the defendant, and the availability of a means to cure the prejudice, including continuances and recesses. Fernandez, 780 F.2d at 1576 (quoting Euceda-Hernandez, 768 F.2d at 1312). There is no indication of bad faith on the part of the government in this case. Additionally, this is not a case where the government’s failure to comply with the discovery order prejudiced substantial rights of the defendant. See, e.g., United States v. Rodriguez, 799 F.2d 649, 652 (11th Cir.1986) (defendant must show prejudice to substantial rights for this Court to reverse discretion of trial court in choosing sanction for discovery violation). Although the time was short, defendant suffered no prejudice because defense counsel already knew the substance of the conversations. See United States v. Chestang, 849 F.2d 528, 532 (11th Cir.1988) (no prejudice to defense from Rule 16 violation because defense already knew the substance of the nondelivered materials). Finally, the trial court cured any prejudice to defendant by granting a recess to allow defense counsel to read the transcripts. Defendant argues that the trial court should have excluded McGoohan’s testimony as a sanction. The district court had the power to exclude this testimony, cf. Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), but exclusion of relevant evidence is an extreme sanction. United States v. Euceda-Hernandez, 768 F.2d at 1313-14. The district court was correct in not choosing it. Cf. United States v. Burkhalter, 735 F.2d 1327, 1329-30 (11th Cir.1984) (per curiam) (district court abused discretion in preventing full use of testimony as sanction for discovery violation when less severe sanction was available). Assuming the government violated a discovery rule, we hold that the district court did not abuse its discretion under Rule 16(d)(2) by ordering the government to allow defense counsel to read the transcripts during lunch and overnight recesses as a remedy for the government’s failure to provide defense counsel with the transcripts prior to trial. C. Coconspirator Statements Petitioner claims that the district court erred in admitting McGoohan’s testimony about conversations in London between Jackson and Stanfield. The British police had recorded all conversations in Jackson’s hotel room between November 30, 1982, and December 2, 1982. Many of these conversations were between Jackson and Stanfield, an intimate female acquaintance. British Inspector McGoohan testified about these conversations as they related to the conspiracy and to Turner’s role in it. Defendant argues that the testimony about these conversations included hearsay inadmissible under Fed.R.Evid. 802. The United States argues that these statements were admissible as coconspirator statements under Fed.R.Evid. 801(d)(2)(E). In order to qualify as a coconspirator statement, there must have existed a conspiracy involving the declarant and the defendant, and the statement must have been made during the course and in furtherance of the conspiracy. Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 2778, 97 L.Ed.2d 144 (1987); see Fed. R.Evid. 801(d)(2)(E). In this case, independent evidence established that Jackson was part of the conspiracy and that the statements were made during the course of that conspiracy. The dispute focuses on whether the statements were made in furtherance of the conspiracy. This Circuit applies “a liberal standard in determining whether a statement is made in furtherance of a conspiracy.” United States v. Santiago, 837 F.2d 1545, 1549 (11th Cir.1988). The statement need not be necessary to the conspiracy, but must only further the interests of the conspiracy in some way. United States v. Caraza, 843 F.2d 432, 436 (11th Cir.1988) (per curiam). Statements made to solicit membership or participation in the conspiracy, for example, United States v. Montes-Cardenas, 746 F.2d 771, 780 (11th Cir.1984), or statements explaining the conspiracy to a new member, see generally United States v. Reyes, 798 F.2d 380, 384 (10th Cir.1986), are made in furtherance of the conspiracy. The determination of whether a statement is made in furtherance of a conspiracy is a finding of fact subject to a clearly erroneous standard of review. United States v. Ayarza-Garcia, 819 F.2d 1043, 1050 (11th Cir.), cert. denied, — U.S. -, 108 S.Ct. 465, 98 L.Ed.2d 404 (1987). A finding of fact is clearly erroneous when after reviewing the entire evidence the reviewing court “is left with a definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). In this case, the government introduced evidence of conversations between Jackson and Stanfield regarding the risks of cashing the check, the level of payment Jackson and the others were to receive, and how the money was to be transported back to the United States. The district court necessarily found these statements to have been made in furtherance of the conspiracy. That conclusion is not clearly erroneous. Even if the evidence were erroneously admitted, however, petitioner would not be entitled to prevail on appeal because that error would be harmless beyond a reasonable doubt. See generally Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986) (no reversal of conviction if Confrontation Clause violation harmless beyond a reasonable doubt). The error is harmless if there is no “reasonable probability that the evidence complained of might have contributed to the conviction.” Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230-31, 11 L.Ed.2d 171 (1963); see also United States v. Taylor, 792 F.2d 1019, 1027 (11th Cir.1986) (no reversible error in erroneous admission of hearsay evidence because remaining evidence supported conviction beyond a reasonable doubt), cert. denied, 481 U.S. 1030, 107 S.Ct. 1957, 95 L.Ed.2d 530 (1987); United States v. Cruz, 765 F.2d 1020, 1025 (11th Cir.1985) (the evidence was sufficient to negate any reasonable doubt as to whether the error contributed to the conviction). Factors to consider include the importance of the evidence to the prosecution, whether the evidence was cumulative, and the overall strength of the prosecution’s case. Cf. Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438 (discussing inability to cross-examine witness as Confrontation Clause violation). In this case, there was overwhelming independent evidence that Turner knowingly participated in the scheme to transport the stolen bonds to Florida, sell them, and transport the check from the brokerage house to London for liquidation. McGoo-han’s testimony was primarily cumulative, and corroborated by other testimony. We hold therefore that even if the district court erred in admitting this evidence, the error was harmless beyond a reasonable doubt. Petitioner also argues that the district court erred by allowing McGoohan to read from the transcripts. It is true that the district court had the obligation to prevent McGoohan from putting the content of these transcripts into evidence under the guise of refreshing his recollection. United States v. Scott, 701 F.2d 1340, 1346 (11th Cir.), cert. denied, 464 U.S. 856, 104 S.Ct. 175, 78 L.Ed.2d 158 (1983). The district court did so in this case, admonishing McGoohan when he began to read. This is not reversible error. After reviewing the record, we conclude that the district court’s evidentiary rulings do not provide a basis for reversing defendant’s convictions. III. CONCLUSION Turner’s convictions for violating 18 U.S. C.A. § 371 and 18 U.S.C.A. §§ 2 and 2314 are AFFIRMED. . Rule 16(c) provides: "If, prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under this rule, such party shall promptly notify the other party or that other party’s attorney or the court of the existence of the additional evidence or material.” . It is unclear when the United States came into possession of the tapes and the transcripts. The United States claims it never received the tapes, and received the transcripts on June 20, 1987, the Saturday before trial. Defense counsel argues that the United States had the tapes and transcripts since 1983. The government also argues these tapes were not subject to Rule 16 because they did not involve statements made by the defendant, were not to be introduced at trial, and were not material to the preparation of the defense. Compare United States v. Parikh, 858 F.2d 688, 694-95 (11th Cir.1988) (nondisclosure of letters from anonymous informant not offered into evidence did not violate Rule 16(a)(1)(C)) with United States v. Noe, 821 F.2d 604 (11th Cir.1987) (reversing conviction because prosecution failed to disclose tape recording of defendant introduced at trial); United States v. Barragan, 793 F.2d 1255, 1259 (11th Cir.1986) (government obliged to deliver tapes of defendant to be introduced at trial). The government argues it did not violate the discovery order because the discovery order applied only to evidence either intended to be introduced by the government in its case in chief or obtained from or belonging to the defendant. The district court, without resolving this dispute, ordered the United States to provide the defense with a copy of the transcripts and granted a recess during the trial to give the defense an opportunity to review the transcripts. . Introduction of out-of-court statements implicates a criminal defendant’s Sixth Amendment right to confront the witnesses against him. Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). Such statements do not violate the defendant’s Confrontation Clause rights if (1) the declarant is unavailable and (2) the statement bears adequate indicia of reliability. United States v. Caporale, 806 F.2d 1487, 1512 (11th Cir.1986), cert. denied, 483 U.S. 1021, 107 S.Ct. 3265, 97 L.Ed.2d 763 (1987). A statement that is admitted pursuant to a valid exception to the hearsay rule automatically bears adequate indicia of reliability. Id. Coconspirator statements, although technically not hearsay under Fed.R.Evid. 801(d)(2)(E), fit within this general hearsay exception rule. Id. Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

sc_adminaction

117

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to 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. REETZ, COMMISSIONER OF FISH AND GAME OF ALASKA, et al. v. BOZANICH et al. No. 185. Argued January 13, 1970 Decided February 25, 1970 Charles K. Cranston, Assistant Attorney General of Alaska, argued the cause for appellants. With him on the brief were G. Kent Edwards, Attorney General, and Robert L. Hartig, Assistant Attorney General. Robert Boochever argued the cause for appellees. With him on the brief was Seth Warner Morrison III. Mr. Justice Douglas delivered the opinion of the Court. This is an appeal from the judgment of a three-judge District Court, convened under 28 U. S. C. §§ 2281, 2284, declaring certain fishing laws of Alaska and regulations under them unconstitutional and enjoining their enforcement. 297 F. Supp. 300. We noted probable jurisdiction. 396 U. S. 811. The laws in question, passed in 1968, concern salmon net gear licenses for commercial fishing, not licenses for other types of salmon fishing. They are challenged because they limit licensees to a defined group of persons. The Act in material part provides: “Persons eligible for gear licenses, (a) Except in cases of extreme hardship as defined by the Board of Fish and Game, a salmon net gear license for a specific salmon registration area may be issued only to a person who “(1) has previously held a salmon net gear license for that specific salmon registration area; or “(2) has, for any three years, held a commercial fishing license and while so licensed actively engaged in commercial fishing in that specific area.” The regulations provide that except in cases of “extreme hardship ... a salmon net gear license for a specific salmon registration area may be issued only to a person who: “(A) has held in 1965 or subsequent years a salmon net gear license for that specific salmon registration area; or “(B) has, for any three years -since January 1, 1960, held a commercial fishing license and while so licensed actively engaged in commercial fishing in that specific aireaN Appellees are nonresidents who applied for commercial salmon net gear licenses. They apparently are experienced net gear salmon fishermen but they cannot qualify for a salmon net gear license to fish in any of the 12 regions or areas described in the Act and the regulations. Appellees filed a motion for summary judgment on the grounds that the Act and regulations deprived them of their rights under the Equal Protection Clause of the Fourteenth Amendment and also their rights under the Alaska Constitution. That constitution provides in Art. VIII, § 3: “Wherever, occurring in their natural state, fish, wildlife, and 'waters are reserved to the -people- for common use.” And it provides in Art. VIII, § 15: “No exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the State.” Appellants filed a motion to dismiss or alternatively to stay the proceedings in the District Court pending the determination of the Alaska constitutional question by an Alaska court. Appellants’ motion to dismiss or to stay was denied. Appellees’ motion for summary judgment was granted, the three-judge District Court holding that the Act and regulations in question were unconstitutional both under the Equal Protection Clause of the Fourteenth Amendment and under the Constitution of Alaska. 297 F. Supp., at 304-307. This case is virtually on all fours with City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U. S. 639, where a single district judge in construing a Mississippi statute held that it violated both the Federal and the State Constitutions. The Court of Appeals affirmed and we vacated its judgment and remanded to the District Court with directions to hold the case while the parties repaired to a state tribunal “for an authoritative declaration of applicable state law.” Id., at 640. We said: “Proper exercise of federal jurisdiction requires that controversies involving unsettled questions of state law be decided in the state tribunals preliminary to a federal court’s consideration of the underlying federal constitutional questions. . . . That is especially desirable where the questions of state law are enmeshed with federal questions. . . . Here, the state law problems are delicate ones, the resolution of which is not without substantial difficulty — certainly for a federal court. ... In such a case, when the state court’s interpretation of the statute or evaluation of its validity under the state constitution may obviate any need to consider its validity under the Federal Constitution, the federal court should hold its hand, lest it render a constitutional decision unnecessarily.” Id., at 640-641. We are advised that the provisions of the Alaska Constitution at issue have never been interpreted by an Alaska court. The District Court, feeling sure of its grounds on the merits, held, however, that this was not a proper case for abstention, saying that “if the question had been presented to an Alaska court, it would have shared our conviction that the challenged gear licensing scheme is not supportable.” 297 F. Supp., at 304. The three-judge panel was a distinguished one, two being former Alaska lawyers. And they felt that prompt decision was necessary to avoid the “grave and irreparable” injury to the “economic livelihood” of the appellees which would result, if they could not engage in their occupation “during this year’s forthcoming fishing season.” Ibid. It is, of course, true that abstention is not necessary whenever a federal court is faced with a question of local law, the classic case being Meredith v. Winter Haven, 320 U. S. 228, where federal jurisdiction was based on diversity only. Abstention certainly involves duplication of effort and expense and an attendant delay. See England v. Louisiana State Board, 375 U. S. 411. That is why we have said that this judicially created rule which stems from Railroad Comm’n v. Pullman Co., 312 U. S. 496, should be applied only where “the issue of state law is uncertain.” Harman v. Forssenius, 380 U. S. 528, 534. Moreover, we said in Zwickler v. Koota, 389 U. S. 241, 248, that abstention was applicable “only in narrowly limited 'special circumstances,’ ” citing Prosper v. Clark, 337 U. S. 472, 492. In Zwickler, a state statute was attacked on the ground that on its face it was repugnant to the First Amendment; and it was conceded that state court construction could not render unnecessary a decision of the First Amendment question. 389 U. S., at 250. A state court decision here, however, could conceivably avoid any decision under the Fourteenth Amendment and would avoid any possible irritant in the federal-state relationship. The Pullman doctrine was based on “the avoidance of needless friction” between federal pronouncements and state policies. 312 U. S., at 500. The instant case is the classic case in that tradition, for here the nub of the whole controversy may be the state constitution. The constitutional provisions relate to fish resources, an asset unique in its abundance in Alaska. The statute and regulations relate to that same unique resource, the management of which is a matter of great state concern. We appreciate why the District Court felt concern over the effect of further delay on these plaintiffs, the appellees here; but we have concluded that the first judicial application of these constitutional provisions should properly be by an Alaska court. We think the federal court should have stayed its hand while the parties repaired to the state courts for a resolution of their state constitutional questions. We accordingly vacate the judgment of the District Court and remand the case for proceedings consistent with this opinion. It is so ordered. Alaska Stat. § 16.05.536 (1968). Subd. (b) of that section specifies the data to be supplied in applications for a gear license. Section 16.05.540 provides that the licensee shall “personally operate or assist in the operation of the licensed fishing gear”; that he shall “personally own or lease the licensed fishing gear”; and that the license is “transferable.” Alaska Commercial Fishing Regulations § 102.09 (a) (1969). As defined in the regulations, id., § 102.09 (a) (2). While the original complaint challenged the 1968 regulations, it was amended to challenge the 1968 Act and the 1969 regulations under it, which regulated the 1969 fishing season. Question: What is the agency involved in the administrative action? 001. Army and Air Force Exchange Service 002. Atomic Energy Commission 003. Secretary or administrative unit or personnel of the U.S. Air Force 004. Department or Secretary of Agriculture 005. Alien Property Custodian 006. Secretary or administrative unit or personnel of the U.S. Army 007. Board of Immigration Appeals 008. Bureau of Indian Affairs 009. Bureau of Prisons 010. Bonneville Power Administration 011. Benefits Review Board 012. Civil Aeronautics Board 013. Bureau of the Census 014. Central Intelligence Agency 015. Commodity Futures Trading Commission 016. Department or Secretary of Commerce 017. Comptroller of Currency 018. Consumer Product Safety Commission 019. Civil Rights Commission 020. Civil Service Commission, U.S. 021. Customs Service or Commissioner or Collector of Customs 022. Defense Base Closure and REalignment Commission 023. Drug Enforcement Agency 024. Department or Secretary of Defense (and Department or Secretary of War) 025. Department or Secretary of Energy 026. Department or Secretary of the Interior 027. Department of Justice or Attorney General 028. Department or Secretary of State 029. Department or Secretary of Transportation 030. Department or Secretary of Education 031. U.S. Employees' Compensation Commission, or Commissioner 032. Equal Employment Opportunity Commission 033. Environmental Protection Agency or Administrator 034. Federal Aviation Agency or Administration 035. Federal Bureau of Investigation or Director 036. Federal Bureau of Prisons 037. Farm Credit Administration 038. Federal Communications Commission (including a predecessor, Federal Radio Commission) 039. Federal Credit Union Administration 040. Food and Drug Administration 041. Federal Deposit Insurance Corporation 042. Federal Energy Administration 043. Federal Election Commission 044. Federal Energy Regulatory Commission 045. Federal Housing Administration 046. Federal Home Loan Bank Board 047. Federal Labor Relations Authority 048. Federal Maritime Board 049. Federal Maritime Commission 050. Farmers Home Administration 051. Federal Parole Board 052. Federal Power Commission 053. Federal Railroad Administration 054. Federal Reserve Board of Governors 055. Federal Reserve System 056. Federal Savings and Loan Insurance Corporation 057. Federal Trade Commission 058. Federal Works Administration, or Administrator 059. General Accounting Office 060. Comptroller General 061. General Services Administration 062. Department or Secretary of Health, Education and Welfare 063. Department or Secretary of Health and Human Services 064. Department or Secretary of Housing and Urban Development 065. Administrative agency established under an interstate compact (except for the MTC) 066. Interstate Commerce Commission 067. Indian Claims Commission 068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 069. Internal Revenue Service, Collector, Commissioner, or District Director of 070. Information Security Oversight Office 071. Department or Secretary of Labor 072. Loyalty Review Board 073. Legal Services Corporation 074. Merit Systems Protection Board 075. Multistate Tax Commission 076. National Aeronautics and Space Administration 077. Secretary or administrative unit or personnel of the U.S. Navy 078. National Credit Union Administration 079. National Endowment for the Arts 080. National Enforcement Commission 081. National Highway Traffic Safety Administration 082. National Labor Relations Board, or regional office or officer 083. National Mediation Board 084. National Railroad Adjustment Board 085. Nuclear Regulatory Commission 086. National Security Agency 087. Office of Economic Opportunity 088. Office of Management and Budget 089. Office of Price Administration, or Price Administrator 090. Office of Personnel Management 091. Occupational Safety and Health Administration 092. Occupational Safety and Health Review Commission 093. Office of Workers' Compensation Programs 094. Patent Office, or Commissioner of, or Board of Appeals of 095. Pay Board (established under the Economic Stabilization Act of 1970) 096. Pension Benefit Guaranty Corporation 097. U.S. Public Health Service 098. Postal Rate Commission 099. Provider Reimbursement Review Board 100. Renegotiation Board 101. Railroad Adjustment Board 102. Railroad Retirement Board 103. Subversive Activities Control Board 104. Small Business Administration 105. Securities and Exchange Commission 106. Social Security Administration or Commissioner 107. Selective Service System 108. Department or Secretary of the Treasury 109. Tennessee Valley Authority 110. United States Forest Service 111. United States Parole Commission 112. Postal Service and Post Office, or Postmaster General, or Postmaster 113. United States Sentencing Commission 114. Veterans' Administration or Board of Veterans' Appeals 115. War Production Board 116. Wage Stabilization Board 117. State Agency 118. Unidentifiable 119. Office of Thrift Supervision 120. Department of Homeland Security 121. Board of General Appraisers 122. Board of Tax Appeals 123. General Land Office or Commissioners 124. NO Admin Action 125. Processing Tax Board of Review Answer:

songer_district

G

What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". George BORUNDA and Richard Borunda, Plaintiffs-Appellees, v. Michael RICHMOND and Richard Way, Police Officers, City of Salinas, Defendants-Appellants. No. 87-2364. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 13, 1988. Decided Nov. 3, 1988. As Amended on Denial of Rehearing and Rehearing En Banc Sept. 12, 1989. P. Michael Groff, Salmas, Cal., for defendants-appellants. John Doyle, San Francisco, Cal., for plaintiffs-appellees. Before WISDOM, THOMPSON and TROTT, Circuit Judges. The Honorable John Minor Wisdom, Senior Circuit Judge for the Fifth Circuit, sitting by designation. TROTT, Circuit Judge: Appellants Michael Richmond and Richard Way, police officers for the City of Salinas in Salinas, California, appeal from an order of the district court entering judgment on the jury’s special verdict in favor of plaintiffs, George and Richard Borunda, in an action brought under 42 U.S.C. § 1983 claiming that appellants had violated the plaintiffs’ fourth amendment rights by arresting them without probable cause. Appellants contend that the district court erred (1) in admitting evidence of the Bo-rundas’ acquittals in a prior state criminal proceeding; (2) in admitting the amount of the attorneys’ fees incurred in defending against the state criminal charges; and (3) in denying their motions for nonsuit and/or directed verdict. We reject these contentions and affirm. I. FACTS This appeal arises from events that transpired during the early evening hours of September 9, 1984, a Sunday. The facts are in dispute, and there exist three different accounts of the events that occurred on that particular day. Officer Michael Richmond’s version of the incident was that he and Officer Way, on duty in uniform and driving a marked patrol unit, pulled up in front of 827 Beech Street in Salinas, California, at approximately 8:30 p.m. This was the residence of appellees George and Richard Borunda, father and son. According to Officer Richmond, the two officers confronted two unidentified persons drinking beer on the sidewalk. While the officers were talking to the two subjects, an extremely intoxicated George Borunda appeared at the front door of the residence and told the officers to get off his property or he was going to kill them. Richard Borunda was behind George at this time, still inside the house. One of the unidentified subjects informed the officers that he could control George, but the situation escalated to the point where George and Richard Borunda dragged Officer Richmond into the house and wrestled with him, George apparently going for Officer Richmond’s gun and Richard jumping on Officer Richmond’s back. Officer Way then came to Richmond’s assistance, calling for backup. The two officers ultimately subdued the two Borundas and, thereafter, arrested them. Officer Richard Way’s account of the incident is identical to that given by Officer Richmond up to the point where they arrived at 827 Beech Street. At that juncture, their recollections of the events differ. Officer Way, who wrote the police report, alleged that one of the two subjects they initially encountered drinking beer on the sidewalk that evening was Richard Bo-runda. The officers spoke with Richard and his companion and determined that they were connected with 827 Beech Street. The two individuals were slightly intoxicated at that time. Officer Way instructed them to take the beer into the house. According to Way, Richard Borunda and his companion stepped onto the lawn and informed Officer Way that they were now on private property and did not have to go inside the house. Officer Way replied that they would have to take their beers inside or be cited for drinking in public. George Borunda then came out of the house, swearing and yelling at the officers to get off his property or he was going to kill them. He likewise was instructed to go back into the house along with Richard and his companion. They all refused to do so. The two officers then came to the conclusion that George Borunda would have to be arrested for violation of California Penal Code § 647(f), drunk or disorderly in public. Upon leaving their patrol car to arrest George, the two officers were met with resistance from both George and Richard. This escalated to the point where George and Richard pulled Officer Richmond into their residence and assaulted him. Officer Way used Mace and his baton on the Bo-rundas in order to subdue them, and they were ultimately arrested. The appellees’ account of the incident radically differs from the two officers’ versions. According to the Borundas, Richard was drinking beer with a friend on the front lawn of his residence when Officers Richmond and Way pulled up. The officers spoke to two people walking down the street with beer cans in their hands, and told them to pour out their beers. They refused, cursing the two officers. The officers then focused their attention on Richard and his friend, instructing them to empty their beers. Richard was not intoxicated at this time, and he and his friend complied with the request. Richard, upon reflection, then asked the officers why he had to empty his beer, as he was on his own property. Receiving an unsatisfactory answer, Richard indicated he was going into the house to retrieve two more beers for himself and his companion. According to Richard, he was bent over reaching inside his beer cooler, located by the front door, when he was struck on the side of the head by Officer Way. At this point, George Borunda, who had been sitting in his living room watching television, got up to protest this attack on his son. He was jabbed in the stomach by Officer Richmond, who had rushed into the house. After a liberal application of Mace upon George, the officers then handcuffed and arrested the Borundas. What is undisputed is that the Borundas were charged with, inter alia, resisting arrest (Cal.Penal C. § 148), assault on a police officer (Cal.Penal C. § 243), and public intoxication (Cal.Penal C. § 647(f)). A police report was prepared in support of the charges. During a jury trial, Richard and George Borunda were represented by two defense attorneys. They were ultimately acquitted of all criminal charges. II. PROCEEDINGS BELOW Following the criminal acquittals, the Bo-rundas brought an action under 42 U.S.C. § 1983 against the City of Salinas and various other city officials and police officers. With the exceptions of Officers Richmond and Way, all other defendants were dismissed prior to trial. After a four-day trial, the jury returned a special verdict in favor of the Borundas and awarded them each approximately $11,000.00. III. ISSUES ON APPEAL Appellants Richmond and Way advance interesting and not wholly insubstantial arguments on appeal. They contend that the trial court erred in its evidentiary rulings and in refusing to direct a verdict in their favor. IV. DISCUSSION A. Evidence of Acquittals in Prior State Criminal Proceeding Appellants contend that admission in the present case of evidence of the acquittals in the prior state criminal proceeding was erroneous and effectively “estopped” them from showing that probable cause for the arrests existed. Evidence of an acquittal is not generally admissible in a subsequent civil action between the same parties since it constitutes a “negative sort of conclusion lodged in a finding of failure of the prosecution to sustain the burden of proof beyond a reasonable doubt.” S. Gard, 2 Jones on Evidence, § 12:25, p. 391 (6th ed.1972). Here, however, the district court did not admit the evidence as proof of the facts upon which the acquittals were based. Evidence of the acquittals was admitted solely for the purpose of showing that the plaintiffs incurred damages in the form of attorneys’ fees in successfully defending against the state criminal charges, and that the fees charged were reasonable in light of the success achieved. Even if evidence of the acquittals was relevant, this evidence should have been excluded if its probative value was substantially outweighed by the likelihood of unfair prejudice. See Fed.R.Evid. 403. In this regard, trial courts have “very broad discretion in applying Rule 403 and, absent abuse, the exercise of its discretion will not be disturbed on appeal.” Liew v. Official Receiver and Liquidator, 685 F.2d 1192, 1195 (9th Cir.1982). Here, the potential for prejudice was not insubstantial. The prejudicial potential in admitting evidence of the acquittals was further increased by the poorly refined limiting instruction given in conjunction with its admission. The trial judge instructed the jury that evidence of the acquittals was presented “solely for the purpose of informing you that [the plaintiffs] pled not guilty to each of the charges and that a jury, following a trial, found each of them not guilty of those charges.... You are to take that as part of the evidence in this case but solely for the purpose that they tried the case and were found not guilty and not for any other purpose.” The admissibility of evidence for a limited purpose is governed by Fed.R.Evid. 105. Rule 105 provides in relevant part: When evidence which is admissible ... for one purpose but not admissible ... for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Rule 105 obligates the trial judge to restrict the evidence to its proper scope and entitles the opponent to an instruction cautioning the jury to the possibility of forbidden use and admonishing them not to use it for that purpose. See Sprynczynatyk v. General Motors Corp., 771 F.2d 1112, 1117 (8th Cir.1985), cert. denied, 475 U.S. 1046, 106 S.Ct. 1263, 89 L.Ed.2d 572 (1986). While it would have been better had the trial court specifically directed the jury not to consider the evidence of acquittals as proof of whether probable cause for arrest existed, Rule 105 does not require all limiting instructions to specifically contain “forbidden use” language. See Sprynczynatyk, 771 F.2d at 1117-18. The limiting instruction given to the jury in this case could, and indeed should, have been tailored more narrowly. Nevertheless, it did constitute a limiting admonition of sorts. We find, therefore, that the instruction apprised the jury of the restricted nature of the proffered evidence. Moreover, additional instructions by the district court helped to further obviate potential prejudice to the appellants. It is these additional instructions that tip the balance and erase the specter of error. The jury was specifically instructed that they had the “duty to find the facts from all the evidence in the case ... solely from the evidence before you according to the law.” The jury was also instructed that the burden was upon the plaintiffs to establish by a preponderance of the evidence all of the elements of a § 1983 cause of action, including the element that “defendants ... detained and arrested [plaintiffs] without reasonable or probable cause, and/or initiated criminal proceedings without probable cause.” Finally, the court instructed on the difference in burden of proof between a civil and criminal proceeding, specifically admonishing that “the reasonable doubt standard does not apply to a civil case and you should, therefore, put it out of your mind.” This court would have been inclined to exclude the evidence of acquittals altogether. The fact that plaintiffs had been previously acquitted in the criminal case is far removed from establishing whether probable cause existed for their arrests. The state’s failure to prove guilt beyond a reasonable doubt does not mean in connection with the arrests that it did not meet the lesser probable cause standard — a reasonable belief that an offense has been committed and that the criminal defendant committed the crime. See United States v. Moses, 796 F.2d 281, 283 (9th Cir.1986). Nevertheless, we are not prepared to say, under the circumstances of this case, that its admission was an abuse of discretion. We are mindful that “[t]he considerations which arise under Rule 403, such as the potential for undue prejudice ..., are susceptible only to case-by-case determinations, requiring examination of the surrounding facts, circumstances, and issues .... Thus, it is more difficult in these cases for appellate courts to formulate rules of decision to govern future cases.” United States v. Layton, 767 F.2d 549, 554 (9th Cir.1985) (citation omitted). Nevertheless, while we find that the district court did not abuse its “very broad” discretion in admitting evidence of the prior state court acquittals, we believe that the admission of such evidence may under certain, if not totally dissimilar, circumstances constitute an abuse of discretion. At the very least, a trial court must exercise great care in formulating appropriate limiting instructions if it chooses to venture forth into this hazardous area. B. Evidence of Attorneys’ Fees Incurred in Prior Criminal Proceeding Appellants argue that admission of the amount of attorneys’ fees expended during the prior state court criminal proceeding as an element of § 1983 damages was prejudicial error. We disagree. Appellants cite two cases, Perkins v. Cross, 728 F.2d 1099 (8th Cir.1984) and Greer v. Holt, 718 F.2d 206 (6th Cir.1983), for the proposition that attorneys’ fees cannot be awarded for time spent in defending against prior criminal charges. These cases are inapposite. Both Perkins and Greer involved attorney fee awards pursuant to 42 U.S.C. § 1988. Both cases held that attorneys’ fees incurred in defending against a prior criminal charge are not compensable within the meaning of § 1988. Here, the attorneys’ fees arose out of the necessity of defending against allegedly unwarranted criminal charges and were presented to the trier of fact as an item of damage. A plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations. Such damages are calculated in most circumstances according to general tort law principles applicable to the types of deprivations proved. See generally Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). The victim of the constitutional deprivation is entitled to compensation for economic harm, pain and suffering, and mental and emotional distress that results from the violations. See id. at 257-64, 98 S.Ct. at 1048-53. The Borundas’ expenditures for legal representation during the prior criminal proceeding most assuredly constitute economic harm. The reasonable amount of these expenditures, if proved to the jury’s satisfaction to be the consequence of appellants’ illegal conduct, is recoverable as compensatory damages. See Kerr v. City of Chicago, 424 F.2d 1134, 1141 (7th Cir.), cert. denied, 400 U.S. 833, 91 S.Ct. 66, 27 L.Ed.2d 64 (1970) (plaintiff in a civil rights action is allowed to recover the attorneys' fees in a state criminal action where the expenditure is a foreseeable result of the acts of the defendant). Appellants argue that their illegal conduct did not proximately cause the expenditure of attorneys’ fees in defending against the criminal charges since “the prosecutor is the one who decides whether or not to prosecute the case.” We reject this argument as well. To be sure, even assuming that probable cause for arrest was absent, investigating officers such as the appellants may be insulated from liability for damages arising subsequent to the unlawful arrest since the prosecutor filing the criminal complaint is presumed to have exercised independent judgment in determining that probable cause for an arrest exists. Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir.1981), cert. denied, 459 U.S. 829, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982). That presumption, however, is rebuttable by evidence that the investigating officers made material omissions or gave false information to the prosecutor. For example, a showing that the district attorney was pressured or caused by the investigating officers to act contrary to his independent judgment will rebut the presumption and remove the immunity. Also the presentation by the officers to the district attorney of information known by them to be false will rebut the presumption. Smiddy, 665 F.2d at 266-67. The Borundas presented sufficient evidence to challenge the presumption. The criminal prosecutor had no information available to him other than that contained in the police report submitted by appellants. The jury was entitled to find, amidst the striking omissions in the police report, as well as the two officers’ conflicting accounts of the incident, that appellants procured the filing of the criminal complaint by making misrepresentations to the prosecuting attorney. The amount of attorneys’ fees incurred during the criminal prosecutions was a direct and foreseeable consequence of the appellants’ unlawful conduct. We find no abuse of discretion in its admission. C. Denial of Nonsuit and/or Directed Verdict After plaintiffs’ opening statement, the appellants made a motion for nonsuit which was denied. At the close of plaintiffs’ case, the district court similarly denied appellants’ motion for directed verdict. Appellants claim error. We find none. We review the propriety of a directed verdict under the same standard as the court below. Donoghue v. Orange Coun ty, 848 F.2d 926, 932 (9th Cir.1987). We review the evidence in the light most favorable to the nonmoving party and draw all possible inferences in favor of that party. Id. A directed verdict is proper when the evidence permits only one reasonable conclusion as to the verdict. Id. A directed verdict is improper when there is conflicting testimony raising a question of witness credibility since “[i]t is the exclusive function of the jury to weigh the credibility of the witnesses.” Id. To make out a prima facie case under § 1983, plaintiffs must show that the defendants (1) acted under color of state law, and (2) deprived the plaintiffs of rights secured by the constitution. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 624 (9th Cir.1988). It is undisputed that the appellants were acting under color of state law during the course of the arrests at issue. Similarly, an arrest without probable cause violates the fourth amendment and gives rise to a claim for damages under § 1983. McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir.1984). Where the facts or circumstances surrounding an individual’s arrest are disputed, as they are here, the existence of probable cause becomes a question of fact for the jury. McKenzie, 738 F.2d at 1007-08. Here, it was entirely within the jury’s prerogative to find more credible the plaintiffs’ version of the facts surrounding the arrest, a version corroborated by a seemingly disinterested third party. In the same vein, the jury was entitled to disregard appellants’ accounts of the incident, accounts fraught with discrepancies, inconsistencies, and material omissions. The jury would in our judgment be entitled to conclude that probable cause for the arrests was nonexistent. Finally, appellants argue that the evidence indicates their conduct, at most, amounted to “simple negligence,” and thus, “plaintiffs had failed to prove or present a prima facie case of any violation of substantive constitutional due process rights under ... § 1983.” This argument misses the mark. First, we find it inconceivable that evidence, apparently found by the jury to be credible, suggesting that appellants wrongfully arrested plaintiffs for having defied their supposed authority, and then falsified the police report in order to support their inflated charges, amounts to nothing more than “simple negligence.” Secondly, and more on point, appellants’ argument mis-perceives the constitutional deprivation alleged and evidently proved to the satisfaction of the jury. In Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), and a companion case, Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), the Supreme Court held that mere negligence could not constitute a “deprivation” of life, liberty, or property under the fourteenth amendment. Contrary to appellants’ assertion, this holding has little relevance to a § 1983 action involving fourth amendment rights. The motions for directed verdict were properly denied. On appeal, the appellees request attorney’s fees under 42 U.S.C. § 1988 and Fed.R.App.P. 38. This appeal was not frivolous, and sanctions under Rule 38 are inappropriate. In pertinent part, 42 U.S.C. § 1988 provides that “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.” While a federal court, by the plain wording of § 1988, has “discretion” to allow fees to a prevailing party, the Supreme Court has severely limited the exercise of that discretion. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (prevailing plaintiff “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust”). As one commentator has noted: “The presumption in favor of an award of fees to prevailing plaintiffs in private attorney general lawsuits is, in fact, so strong that a denial of fees on the basis of ‘special circumstances’ is extremely rare.” 1 M. Derfner & A. Wolf, Court Awarded Attorney Fees ¶ 10.02[3], at 10-12 (1988). Indeed, one disgruntled district judge described the restrictive interpretation places upon the “special circumstances” exception as rendering] [the exception] in effect a nullity. This interpretation is reminiscent of the passage wherein Macbeth remarked. “Life’s but a walking shadow; a poor player, That struts and frets his hour upon the stage. And then is heard no more; it is a tale Told by an idiot, full of sound and fury, Signifying nothing.” Connor v. Winter, 519 F.Supp. 1337, 1348 (S.D.Miss.1981) (three-judge court) (Cox, J., dissenting). See also Gates v. Collier, 559 F.2d 241, 244 (5th Cir.1977) (Coleman, J., concurring) (“I concur in the award of ... attorneys’ fees ..., but I do so only because Congress has seen fit to require it”) (emphasis added). We have, nonetheless, denied section 1988 fees on appeal to a prevailing plaintiff-appellee because counsel failed to adequately brief the issues he presented, thereby requiring the court to engage in independent research. See Bateson v. Geisse, 857 F.2d 1300, 1306 (9th Cir.1988); Robins v. Harum, 773 F.2d 1004, 1011 (9th Cir.1985). Such is not the case here. Accordingly, because appellees were the “prevailing party” in the underlying litigation and we are unable to discern “special circumstances” to the contrary, they are entitled to attorney’s fees for time reasonably spent defending the jury verdict on appeal. Pursuant to Ninth Circuit Rule 39-1.6, ap-pellees will file an itemized proposal of their attorney’s rates and hours worked within 14 days of the filing of this amended opinion. The amount of fees will be fixed by separate order. AFFIRMED. . The trial judge enunciated somewhat more clearly the limitations on the use of the proffered evidence when he stated the evidence was being admitted "for the limited purpose of showing that work was done and the result was achieved for which attorneys’ fees are requested.” This statement, however, was made in chambers, outside the presence of the jury, and for purposes of our review is irrelevant in determining whether the potential for unfair prejudice substantially outweighs its probative value. . Additionally, we note that appellants did not request an instruction which might further limit the effect of the evidence; thus, the failure of the court to give, sua sponte, a more precise or limiting instruction is not error. See Gray v. Shell Oil Co., 469 F.2d 742, 752 (9th Cir.1972), cert. denied, 412 U.S. 943, 93 S.Ct. 2773, 37 L.Ed.2d 403 (1973). Cf. Sprynczynatyk, 771 F.2d at 1117 (trial court refused to adopt defendants’ proffered limiting instruction). . As the Supreme Court has explained: "The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted — indeed, for every suspect released.” Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2694-95, 61 L.Ed.2d 433 (1979). . The plain language of § 1988 supports these holdings. Section 1988 provides that in actions brought “to enforce a provision of [42 U.S.C. § 1983], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee.” 42 U.S.C. § 1988 (1982) (emphasis added). . On this issue, appellants also assert that they "should be cloaked with the same type of ‘prose-cutorial immunity’ as the Deputy District Attorney.” There is nothing in the parties’ briefs or in the record on appeal to suggest that this "absolute immunity" point was raised at the district court level. We need not consider it now. See, e.g., Wagenmann v. Adams, 829 F.2d 196, 226 (1st Cir.1987). . The police report omitted the testimony at the civil trial that, while struggling with Officer Richmond, George Borunda attempted to gain control of Richmond’s gun. An expert on police procedures testified that this omission in the police report ran so counter to standard police training as to render the trial testimony "rather incredulous.” .Because this was a jury case, appellants’ motion for dismissal pursuant to Fed.R.Civ.P. 41(b) is more properly treated as a motion for directed verdict under Rule 50(a). See Fruit Industries Research Foundation v. National Cash Reg. Co., 406 F.2d 546, 550 (9th Cir.1969); see also Stone v. Millstein, 804 F.2d 1434, 1436 (9th Cir.1986) (“[(Involuntary dismissal under Rule 41(b) ‘occurs in a bench trial when the trial judge concludes that the plaintiff has not made out a case’ ”). Nevertheless, the same standard of review is applied whether the particular motion is characterized as a nonsuit or a directed verdict. See Fruit Industries, 406 F.2d at 550. . Elias Nunez, a neighbor at the time of the incident, testified that he saw two police officers pull up in front of 827 Beech Street and speak to Richard Borunda and a companion, who were sitting by the front door of the residence drinking beer. Nunez heard Richard reply that he was on private property. The police then got out of their patrol car, and Richard Borunda went into his house. The two officers went inside after Richard. The officers stayed inside for three minutes. During this time, other officers came to the front of 827 Beech Street, but stayed outside the residence. . The Daniels court noted that "we need not rule out the possibility that there are other constitutional provisions that would be violated by mere lack of care in order to hold ... that such conduct does not implicate the Due Process Clause of the Fourteenth Amendment.” Id. 474 U.S. at 334, 106 S.Ct. at 666. 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_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. JENKINS PETROLEUM PROCESS CO. v. CREDIT ALLIANCE CORPORATION et al. No. 1328. Circuit Court of Appeals, Tenth Circuit. April 11, 1936. C. Stanley Thompson, of Washington,. D. C. (William J. Donovan, of Washington, D. C., Samuel J. Montgomery, of Tulsa, Okl., and Frederick Schafer, Carbery O’Shea, Russell Jewell and Donovan, Bond & Leisure, all of Washington, D. G, on the briefs), for appellant. George S. Ramsey, of Tulsa, Okl. (Alfred McKnight, of Fort Worth, Tex., and E. E. Berkwit, of New York City, on the briei), for Credit Alliance Corporation and others. Nathan A. Gibson, of Tulsa, Okl. (James H. Maxey, Wilbur J. Plolleman, Harry Campbell, and Valjean Biddison, all of Tulsa, Okl., on the brief), for Beckett Co., Inc., and others. Before PHILLIPS and McDERMOTT, Circuit Judges, and KENNEDY, District Judge. PHILLIPS, Circuit Judge. This is an appeal by the Jenkins Petroleum Process Company, hereinafter called Jenkins, from an order denying it leave to intervene in a suit brought by Credit Alliance Corporation and Graver Corporation/ hereinafter referred to as Credit Alliance and Graver, respectively, against Beckett Company, Inc., Western Oil Corporation, Travis-Senter Refining Company, hereinafter referred to as Beckett, Western and Travis-Senter, respectively, and J. F. Darby, C. F. Lynde, J. R. Travis, I. H. Patton, Jr., Carl Pursel, and G. W. Snedden. Graver is a corporation organized under the laws of Illinois and is duly authorized to transact business in Oklahoma. Credit Alliance is a corporation organized under the laws of New York. Beckett is a corporation organized under the laws of Neyada and authorized to transact business in Oklahoma. Western is a corporation organized under the laws of Delaware and is authorized to transact business in Oklahoma. Travis-Senter is a corporation organized under the laws of Oklahoma. Jenkins is a corporation organized under the laws of Wisconsin. The shares of stock of Beckett consist of twenty shares, each of the par value of $25.00, and were owned by Travis, Lynde, Darby and G. W. Snedden until about May 1, 1932. The shares of stock of Western are owned by Darby, Lynde, G. W. Snedden’s estate and Darby-Lynde Corporation. The shares of stock of the latter corporation are owned by Darby and Lynde. The shares of stock of Travis-Senter, except directors qualifying shares, are owned by Travis. On February 15, 1928, Graver entered into a written contract with 1. H. Patton, Jr., hereinafter referred to as the Graver contract, whereby it agreed to erect and install at Duncan, Oklahoma, one Jenkins cracking plant and auxiliary equipment, hereinafter referred to as the cracking plant for a consideration of $172,818, to be paid by Patton or his successor. It provided that title to the cracking plant should remain in Graver until the entire purchase price was paid and that payment therefor should be made out of profits of the cracking plant in monthly installments of $9,601 each, evidenced by promissory notes. On June 14, 1928, Patton assigned his interest in the Graver contract to Beckett. Graver completed the cracking plant in accordance with such contract and the specifications and Beckett accepted it. It was put in operation December 1, 1928. . On March 1, 1928, Graver, in order to secure a loan and future advances, transferred and assigned all its right, title and interest then due or to become due to it under the Graver contract to Credit Alliance. Beckett executed and delivered the notes provided- for therein to Graver and the latter endorsed and delivered them to Credit Alliance. Travis-Senter owns a plant for refining crude oil into gasoline, particularly the top or first run distillates, on premises owned by it, situated adjacent to the cracking plant of Beckett. The premises on which the cracking plant is situated are also owned by Travis-Senter and are leased from it by Beckett. Western is a producer of crude oil in Oklahoma. In 1928, the Travis-Senter leased its refinery to the Western under a contract which provided that J. R. Travis should be in charge of the Western’s refinery operations and its sale of products, that the Western should supply the refinery with working capital and crude oil; and that all the profits derived from the operations of the refinery should be divided equally between the Travis-Senter and Western. Since the cracking plant began to operate, J. R. Travis has been the general manager of Beckett and in control of its operations including local sales. In June, 1928, Western and Beckett entered into a contract for the sale, by the former to the latter, of crude oil and other cracking material for the cracking plant. Beckett reported profits to Graver from time to time and paid on the purchase price, $26,888.72, which, with a credit allowance of $1,500, left a balance at the time of the master’s report, hereinafter referred to, of $144,429.28. Beckett had also paid to Graver $4,843.31, on the finance charge provision of the Graver contract. From December 1, 1928, to May 1, 1932, there was an interchange of products between Beckett and Western, the former purchasing crude oil, gas oil, and cracking material, and the latter purchasing gasoline, gas oil, and fuel oil from Beckett. The individual defendants, through stock ownership during such period, dominated and controlled both Beckett and Western, and as stockholders, directors and officers of such corporations caused Beckett to pay the Western more than the reasonable price of products sold and actually delivered to Beckett and caused Beckett to sell products to the Western at less than the value thereof, and thereby fraudulently diverted to Western, profits of Beckett which should have been paid to Credit Alliance under the terms of the Graver contract and disabled Beckett to make its payments under such contract. In their bill and supplemental bill, Credit Alliance and Graver set up the foregoing facts and prayed for relief as follows: “(1) That a writ of injunction issue restraining tlie defendants from continuing the breach of said contract shown by Exhibit ‘A’; (2) that if necessary at any stage of this proceeding a receiver be appointed; (3) that a decree of specific performance be entered ordering and directing the Beckett to pay over to the plaintiffs each month the profits it derives for the preceding month from operating the Cracking Plant, as provided in the contract; (4) that the Beckett be ordered to account and pay over to plaintiffs all profits heretofore realized by it from operating said Cracking Plant and not heretofore paid to plaintiffs or either of them, and that for this purpose an accounting be stated; (5) that a judgment and decree be entered against the individual defendants, the Travis-Senter and the Western, requiring them to pay over to the plaintiffs a sum of money equivalent to all the profits they have caused to be diverted from the Beckett to the Western, and that an accounting be taken for the purpose of ascertaining said amount; (6) that an auditor or master in chancery be appointed with directions to examine the books and records of the defendants and take evidence such as the parties may offer and report to this court his findings of facts and conclusions of law necessary to the determination of the questions herein involved; (7) that the master be directed to report the amount due plaintiffs on account of the running finance charge of five cents on each barrel of gasoline manufactured by the Cracking Plant and that Beckett be ordered to pay same to plaintiffs and to hereafter continue such payments; * * * ” After the issues were joined, the cause was referred to a special master. The time consumed in the hearings before the master aggregated twenty-seven days and the record thereof is embraced in five volumes, totaling 2,486 pages. George W. Snedden, one of the original parties defendant died on June 18, 1934, and his executors, Geraldine H. Snedden and the First National Bank and Trust Company of Tulsa, were substituted as parties defendant. On January 11, 1935, the master filed his report. The master found the foregoing facts, and further specifically found: That on June 15, 1928, Western and Beckett entered into a contract whereby Beckett agreed to purchase from Western all the crude oil and other cracking material used in the cracking plant. That on December 1, 1928, Western and Beckett entered into a contract whereby it was agreed the former should handle all the products of the latter. That by reason of their stock ownership and official connection with the corporate defendants, the individual defendants controlled the corporate defendants and particularly the corporate defendants, Beckett and Western. That during the period from December 1, 1928 to May 1, 1932, Beckett purchased “charging stock” treated in its cracking plant from Western and that the amount thereof reflected on the invoices from Western to Beckett, exceeded the actual amount delivered 2,055,840 gallons, thereby causing a diversion of profits from Beckett to Western aggregating $35,324.-35. That during the first two years of the period of operations under the contract of June 15, 1928, between Beckett and Western, the latter consistently charged Beckett unit prices for “charging stock” in excess of its value and in excess of what Western could have sold such material in the market, amounting in the aggregate to an overcharge of $93,657.67. That during the period from December 1, 1928, to May 31, 1932, for products sold by Beckett to Western, the latter gave Beckett credit for $106,454.42 less than it was entitled to receive. That the defendants wrongfully and fraudulently so diverted profits from Beckett to Western pursuant to a scheme to prevent Beckett from showing profits on its books payable to the plaintiffs under the Graver contract and to benefit themselves as the stockholders of the corporate defendants, other than Beckett, and that the profits so wrongfully diverted, amounted to $235,436.44. That the defendants, Patton and Pursel, were not stockholders in the corporate defendants and did not participate in any of such profits. That the evidence did not show the disposition of such profits other than that dividends in large amounts were paid by Western to its stockholders in 1929, 1930 and 1931. And that by reason of the acts of the defendants and the diversion of such profits, plaintiff sustained a loss of. $2,905.60 on the financing charge or royalty and the balance due on the contract price amounting to $144,429.28. He concluded that the defendants, other than Pursel and Patton, breached their duty to plaintiffs and converted profits earned by Beckett under the terms of the contract of sale and were jointly and severally liable to plaintiffs in the sum of $147,334.88, and the costs of the proceeding, and recommended a judgment accordingly. The evidence introduced before the master is not in the record. Our statement of facts herein is of necessity based on the pleadings and the findings of the master and is not intended, in anywise, to interfere with or prejudice the trial court in the performance of its duty to find the ultimate facts on the hearing on the master’s report. On April 22, 1935, Jenkins filed its motion for leave to intervene herein, accompanied by a petition of intervention and a bill of intervention. In its petition and bill of intervention, Jenkins alleged the commencement of the main proceeding on May 2, 1931 and the joinder of issue therein and summarized the allegations of the bill and supplemental bill therein. It alleged the reference to the special m'aster and the facts found and conclusions made by the special master. It further alleged these facts: Jenkins is the owner of eight United States letters patent covering processes and devices for treating, distilling and refining crude petroleum oils. From September 30, 1926, Graver was the exclusive licensee of Jenkins Company to sell within the United States, Jenkins’ equipment to be constructed or operated under such patents. Such right of Graver was subject to the condition that a license agreement should be executed by the purchaser requiring the purchaser to pay Jenkins a royalty. On February 15, 1928, Jenkins Company entered into a license agreement with I. H. Patton, Jr., who thereafter assigned it to Beckett. Such agreement granted the right to use the devices and processes covered by the patents in the construction and operation of the cracking plant, and provided the licensee should pay Jenkins a royalty of twenty-five cents per barrel on each and every barrel of gasoline produced by use of any of such inventions during the lifetime of the license, or in lieu thereof a royalty of two cents per barrel on all charging stock treated by the devices or processes covered by such patents. During the period from December 1, 1928 to April 12, 1932, Beckett -at various times failed to pay Jenkins Company the royalty due under such agreement and Jenkins Company sued Beckett and obtained two judgments for royalties due it, one on September 4, 1931, for $39,670.56 with interest from that date and one on September 30, 1932, for $4,568.50 with interest from that date. Executions were first issued on these judgments on March 13, 1935 and they were returned nulla bona on March 18, 1935. Jenkins Company further alleged that it had an interest in the litigation in the main proceedings, in that it is necessary to marshal the assets of the defendants, any judgment will affect its rights in and to the assets of Beckett improperly diverted by the other defendants, and such assets are impressed with a trust in favor of Jenkins Company and it has an equitable lien thereon, which because of its judgments against Beckett is prior to the claims of the plaintiffs. Applications to intervene may be divided into two classes: (1) Where the intervention is not indispensable to the preservation or enforcement of the right of the petitioner; and (2) where the petitioner has a direct interest in the subject matter of the pending suit which can be established, preserved or enforced only by intervention therein. In the first class, intervention is a matter resting in the discretion of the trial court and an order denying it is not final nor appealable. In the latter class, the right of intervention is absolute and an order denying it is final and appealable. Here plaintiffs sought an accounting of the profits unlawfully diverted from Beckett, a decree requiring Western and TravisSenter to pay over to plaintiffs an amount equivalent to the profits so diverted and requiring Beckett to specifically perform the Graver contract, and a judgment against Beckett for the balance due on the financing charge. The master recommended a personal judgment against all the defendants except Pursel and Patton. Plaintiffs did not seek to follow specific assets transferred from Beckett to Western and the other defendants and subject them to its debt. The main suit is not a creditor’s bill to reach specific property or funds by a decree in the nature of equitable execution, but is purely a proceeding in personam for a personal judgment. Hence we fail to see how Jenkins has a direct interest in the subject matter of the pending suit which may be asserted or protected only by intervention therein. It is free to bring an action like this suit or a creditor’s bill to reach specific assets. But if this were a creditor’s bill to reach specific property, we think Jenkins would be in no better position and the same result would follow. It is true the royalty payments to Jenkins along with other costs, were to be deducted from earnings of Beckett before profits could arise, payable under the Graver contract, but we find nothing in the license agreement which gave Jenkins a lien on Beckett’s earnings. No execution was issued and levied on specific property under the judgment obtained by Jenkins against Beckett on September 30, 1932, within one year from the date of its rendition. The same is true of the judgment obtained by Jenkins against Beckett on September 4, 1931. Hence Jenkins has no lien on the assets of Beckett by virtue of such judgments superior to the claims of plaintiffs. Section 466, Okl.St.1931; Harris v. Southwest Nat. Bank, 133 Okl. 152, 271 P. 683, 685-687. One creditor may prosecute a creditor’s suit solely in his own behalf, and he acquires a lien as of the date of the filing of his bill superior to all liens subsequently acquired. In Freedman’s Savings & Trust Co. v. Earle, 110 U.S. 710, 716, 4 S.Ct. 226, 229, 28 L.Ed. 301, the court said: “It is to be noted, therefore, that the proceeding is one instituted by the judgment creditor for his own interest alone, unless he elects to file the bill also for others in a like situation, with whom he chooses to make common cause; and as no specific lien arises by virtue of the judgment and execution alone, the right to obtain satisfaction out of the specific property sought to he subjected to sale for that purpose dates from the filing of the bill. ‘The creditor,’ says Chancellor Walworth, in Edmeston v. Lyde, 1 Paige (N.Y.) 637-640 [19 Am.Dec. 454], ‘whose legal diligence has pursued the property into this court, is entitled to a preference as the reward of his vigilance.’ * * * As his lien begins with the filing of the bill, it is subject to all existing incumbrances, bip: is superior to all of subsequent date. As was said by this court in Day v. Washburn, 24 How. 352 [16 L.Ed. 712]: “ ‘It is only when he has obtained a judgment and execution in seeking to subject the property of his debtor in the hands of third persons, or to reach property not accessible to an execution, that a legal preference is acquired which a court of chancery will enforce.’ “This is in strict accordance with the analogy of the law, as it was recognized that the judgment creditor who first extends the land by elegit is thereby entitled to be first satisfied out of it. It is the execution first begun to be executed, unless otherwise regulated by statute, which is entitled to priority. Rockhill v. Hanna, 15 How. 189-195 [14 L.Ed. 656]; Payne v. Drewe, 4 East, 523. The filing of the bill, in cases of equitable execution, is the beginning of executing it. “The passage cited from the opinion in Day v. Washburn, supra, speaks of the preference thus acquired by the execution creditor as a legal preference. It was distinctly held so to be by Chancellor Kent in M’Dermutt v. Strong, 4 Johns.Ch.(N. Y.) 687. He there said: ‘But this case stands on stronger ground than if it rested merely on the general jurisdiction of this court, upon residuary trust interests in chattels, for the plaintiffs come in the character of execution creditors, and have thereby acquired, by means of their executions at law, what this court regards as a legal preference, or lien on the property so placed in trust;’ and ‘admitting that the plaintiffs had acquired, by their executions at law, a legal preference to the assistance of this court (and none but execution creditors at law are entitled to that assistance), that preference ought not, in justice, to be taken away. Though it be the favorite policy of this court to distribute assets equally among creditors, pari passu, yet, whenever a judicial preference has been established by the superior legal diligence of any creditor, that preference is always preserved in the distribution of assets by this court.’ The decision in that case was made, giving the priority to the execution creditors who filed the bill, when, otherwise, by virtue of an assignment by the debtor who was insolvent, the proceeds of the equitable interest sought to be subjected would have been distributed ratably among all creditors.” Furthermore, Jenkins did not offer to contribute its fair share of the costs and expenses incurred by plaintiff in prosecuting the proceeding and establishing the wrongful diversion of profits from Beckett. Ordinary fairness and well settled principles of equity require that it should, have done so. What the court said in Edmeston v. Lyde, 1 Paige (N.Y.) 637-640, 19 Am.Dec. 454, quoted with approval by the Supreme Court in Freedman’s Savings & Trust Co. v. Earle, supra, is apposite: “And it would ‘seem unjust that the creditor who has sustained all the risk and expense of bringing his suit to a successful termination, should in the end be obliged to divide the avails thereof with those who have slept upon their rights, or who have intentionally kept back that they might profit by his exertions when there could no longer be any risk in becoming parties to the suit.’ ” Affirmed. The Graver contract in part read as follows: “Upon completion of the plant and upon its being turned over to you as described under paragraph entitled ‘Guaranteed Capacity’ the entire amount of the contract price shall be paid by a series of eighteen (18) notes each, each one being in the amount of Nine Thousand Six Hundred and One Dollars ($9,-601.00). These notes shall bear no interest. The first of these notes shall mature thirty (30) days after their date and one each succeeding month. These notes are to be met out of the profits from operating equipment sold under this contract, the full profits for each month being paid against these notes. Should the profit in any month be less than the face of the note, the amount of profits made are to be paid and the difference between this amount and the amount of the note shall be paid by a note for this amount due eighteen (18) months from the date of execution. Eaeh note of this series of eighteen (18) is to be paid in a like manner. These renewal notes will carry no interest nor financing charges. “The amount of profits earned monthly shall be determined by- subtracting the actual cost of manufacture as outlined below from the value of the finished products manufactured by this equipment during the month, figured upon the average selling price for the month of the different grades of products made. The cost shall include the following items at their actual cost: “Labor, fuel, power, steam, repair material, repair labor, lime, treating costs, royalty, or royalties, taxes and insurance. “Crude Oil and/or Topped Crude at tbe average monthly purchase price. “In consideration of the above terms of payment you agree to pay us a running finance charge of five (5) cents on each and every barrel of gasoline manufactured by the apparatus' covered by this proposal. This payment is to be governed by the terms and conditions specified in paragraphs 4, 5, 6, 7, 10 and 11 of the License Agreement where they apply between you and the Jenkins Petroleum Process Company except these payments are to be made directly to the Graver Corporation.” The license agreement was entered into between Jenkins and Patton and is hereinafter referred to more fully. Charging stock is the residue of crude oil remaining after the lighter products have been distilled off through the ordinary methods of distillation in a skimming plant. Demulso Corporation v. Tretolite Co. (C.C.A. 10) 74 F. (2d) 805, 807; United States v. California Co.-op. Canneries, 279 U.S. 553, 550, 49 S.Ct. 423, 73 L.Ed. 838; Swift v. Black Panther Oil & Gas Co. (C.C.A. 8) 244 F. 20, 30; Credits Commutation Co. v. United States (C.C.A. 8) 91 F. 570, 573; Id., 177 U.S. 311, 317, 20 S.Ct. 636, 44 L.Ed. 782; United States Trust Co. v. Chicago Terminal Transfer R. Co. (C.C.A. 7) 188 E. 292, 296; Palmer v. Bankers’ Trust Co. (C.C.A. 8) 12 E.(2d) 747, 752. In Swift v. Black Panther Oil & Gas Go., supra, the court said: “In intervention there are two classes of cases — one class in which the intervention is not indispensable to the preservation or enforcement of the claim of the petitioner, and there the permission to intervene is discretionary with the court; another class in which the petitioner claims a lien upon or an interest in specific property in the exclusive jurisdiction and subject to the exclusive disposition of a court, and his interest therein can be established, preserved, or enforced in no other way than by the determination and action of that court.” Freedman’s Savings & Trust Co. v. Earle, 110 U.S. 710, 4 S.Ct. 228, 28 L.Ed. 801; Green v. Griswold, 57 N.Y.Super.Ct. 24, 4 N.Y.S. 8; Hammond v. Hudson River Iron & Mach. Co., 20 Barb. (N.Y.) 378; Rugely & Harrison v. Robinson, 39 Ala. 404, 419; Lucas v. Atwood, 2 Stew. (Ala.) 378; Seymour v. McAvoy, 321 Cal. 438, 53 P. 946, 947, 41 L.R.A. 544; 15 C.J. p. 1438, § 112. See, also, First Nat. Bank v. Flershem, 290 U.S. 504 , 520, 54 S.Ct. 208, 78 L.Ed. 485, 90 A.L.R. 391; Spellman v. Sullivian (D.C.N.Y.) 43 F.(2d) 762, 764. Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

sc_casesource

021

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. OWENS et al. v. OKURE No. 87-56. Argued November 1, 1988 Decided January 10, 1989 Peter H. Schiff, Deputy Solicitor General of New York, argued the cause for petitioners. With him on the briefs were Robert Abrams, Attorney General, O. Peter Sherwood, Solicitor General, and Charles R. Fraser, Assistant Attorney General. Kenneth Kimerling argued the cause for respondent. With him on the brief were Arthur N. Eisenberg, John A. Powell, Steven Shapiro, Helen Hershkoff, and Joseph M. Brennan. Briefs of amici curiae urging reversal were filed for the State of Nebraska et al. by Robert M. Spire, Attorney General of Nebraska, and Mark D. Starr, Assistant Attorney General, Joseph B. Meyer, Attorney General of Wyoming, John Steven Clark, Attorney General of Arkansas, Robert H. Henry, Attorney General of Oklahoma, and David Lee, Assistant Attorney General, Roger A. Tellinghuisen, Attorney General of South Dakota, Donald J. Hanaway, Attorney General of Wisconsin, T. Travis Medlock, Attorney General of South Carolina, Robert T. Stephan, Attorney General of Kansas, and William L. Webster, Attorney General of Missouri; and for the city of New York by Peter L. Zimroth, Leonard J. Koemer, Edward F. X. Hart, and John P. Woods. Justice Marshall delivered the opinion of the Court. In Wilson v. Garcia, 471 U. S. 261 (1985), we held that courts entertaining claims brought under 42 U. S. C. § 1983 should borrow the state statute of limitations for personal injury actions. This case raises the question of what limitations period should apply to a § 1983 action where a State has one or more statutes of limitations for certain enumerated intentional torts, and a residual statute for all other personal injury actions. We hold that the residual or general personal injury statute of limitations applies. I On November 13, 1985, respondent Tom U. U. Okure brought suit in the District Court for the Northern District of New York, seeking damages under §1983 from petitioners Javan Owens and Daniel G. Lessard, two State University of New York (SUNY) police officers. Okure alleged that, on January 27, 1984, the officers unlawfully arrested him on the SUNY campus in Albany and charged him with disorderly conduct. The complaint stated that Okure was “forcibly transported” to a police detention center, “battered and beaten by [the police officers] and forced to endure great emotional distress, physical harm, and embarrassment.” App. 5-6. As a result of the arrest and beating, Okure claimed, he “sustained personal injuries, including broken teeth and a sprained finger, mental anguish, shame, humiliation, legal expenses and the deprivation of his constitutional rights.” Id., at 6. The officers moved to dismiss the complaint, which had been filed 22 months after the alleged incident, as time barred. They contended that § 1983 actions were governed by New York’s 1-year statute of limitations covering eight intentional torts: “assault, battery, false imprisonment, malicious prosecution, libel, slander, false words causing special damages, [and] a violation of the right of privacy.” N. Y. Civ. Prac. Law § 215(3) (McKinney 1972). The District Court denied the motion to dismiss. 625 F. Supp. 1568 (1986). Borrowing “a narrowly drawn statute which is applicable only to certain intentional torts,” id., at 1570, the court stated, was inconsistent with this Court’s endorsement of “a simple, broad characterization of all §1983 claims.” Ibid, (citing Wilson, supra, at 272). Moreover, a 1-year statute of limitations on § 1983 claims “would improperly restrict the scope of § 1983 and controvert federal policy.” 625 F. Supp., at 1571. The court concluded that New York’s 3-year residual statute of limitations for claims of personal injury not embraced by specific statutes of limitations, N. Y. Civ. Prac. Law §214(5) (McKinney Supp. 1988), was applicable to § 1983 actions, and that Okure’s complaint was therefore timely. The court then certified an interlocutory appeal on this question pursuant to 28 U. S. C. § 1292(b) (1982 ed., Supp. IV) and Rule 5(a) of the Federal Rules of Appellate Procedure. The Court of Appeals for the Second Circuit granted permission for the appeal and affirmed. 816 F. 2d 45 (1987). It stated that Wilson’s description of § 1983 claims as general personal injury actions required a statute of limitations “expansive enough to accommodate the diverse personal injury torts that section 1983 has come to embrace.” Id., at 48. As between the two New York statutes of limitations, the court observed: “By nature, section 214(5) is general; section 215(3) is more specific and exceptional. This dichotomy survives no matter how many similar intentional torts are judicially added to those enumerated in section 215(3).” Ibid. The Court of Appeals favored § 214(5) for another reason: its 3-year period of limitations “more faithfully represents the federal interest in providing an effective remedy for violations of civil rights than does the restrictive one year limit.” Id., at 49. Injuries to personal rights are not “necessarily apparent to the victim at the' time they are inflicted,” the court explained, and “[e]ven where the injury itself is obvious, the constitutional dimensions of the tort may not be.” Id., at 48. The dissent argued that § 1983 actions are best analogized to intentional torts, id., at 51, and that, because §215(3) governs “almost every intentional injury to the person,” id., at 50, it is more appropriate for §1983 claims than §214(5), which it contended had been confined primarily to negligence claims. Ibid. The dissent added that using § 215(3)’s 1-year limitations period is not “inherently inconsistent with the policies underlying the Civil Rights Act.” Id., at 54. We granted certiorari, 485 U. S. 958 (1988), and now affirm. II A In this case, we again confront the consequences of Congress’ failure to provide a specific statute of limitations to govern § 1983 actions. Title 42 U. S. C. § 1988 endorses the borrowing of state-law limitations provisions where doing so is consistent with federal law; § 1988 does not, however, offer any guidance as to which state provision to borrow. To fill this void, for years we urged courts to select the state statute of limitations “most analogous,” Board of Regents, Univ. of New York v. Tomanio, 446 U. S. 478, 488 (1980), and “most appropriate,” Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 462 (1975), to the particular § 1983 action, so long as the chosen limitations period was consistent with federal law and policy. Occidental Life Ins. Co. of California v. EEOC, 432 U. S. 355, 367 (1977); Johnson, supra, at 465. The practice of seeking state-law analogies for particular § 1983 claims bred confusion and inconsistency in the lower courts and generated time-consuming litigation. Some courts found analogies in common-law tort, others in contract law, and still others in statutory law. Often the result had less to do with the general nature of § 1983 relief than with counsel’s artful pleading and ability to persuade the court that the facts and legal theories of a particular § 1983 claim resembled a particular common-law or statutory cause of action. Consequently, plaintiffs and defendants often had no idea whether a federal civil rights claim was barred until a court ruled on their case. Predictability, a primary goal of statutes of limitations, was thereby frustrated. In Wilson, we sought to end this “conflict, confusion and uncertainty.” 471 U. S., at 266. Recognizing the problems inherent in the case-by-case approach, we determined that 42 U. S. C. §1988 requires courts to borrow and apply to all § 1983 claims the one most analogous state statute of limitations. Ibid. See id., at 275 (“[F]ederal interests in uniformity, certainty, and the minimization of unnecessary litigation all support the conclusion that Congress favored this simple approach”); see also id., at 272 (“[A] simple, broad characterization of all § 1983 claims best fits the statute’s remedial purpose”). We Concluded, based upon the legislative history of § 1983 and the wide array of claims now embraced by that provision, that § 1983 “conferfs] a general remedy for injuries to personal rights.” Id., at 278. Because “§ 1983 claims are best characterized as personal injury actions,” we held that a State’s personal injury statute of limitations should be applied to all § 1983 claims. Id., at 280. As the instant case indicates, Wilson has not completely eliminated the confusion over the appropriate limitations period for § 1983 claims. In States where one statute of limitations applies to all personal injury claims, Wilson supplies a clear answer. Courts considering § 1983 claims in States with multiple statutes of limitations for personal injury actions, however, have differed over how to determine which statute applies. Several Courts of Appeals have held that the appropriate period is that which the State assigns to certain enumerated intentional torts. These courts have reasoned that intentional torts are most closely analogous to the claims Congress envisioned being brought under the Civil Rights Act, and to the paradigmatic claims brought today under § 1983. Other Courts of Appeals, by contrast, have endorsed the use of the state residuary statute of limitations for § 1983 actions. These courts have observed that § 1983 embraces a broad array of actions for injury to personal rights, and that the intentional tort is therefore too narrow an analogy to a § 1983 claim. The Court of Appeals for the Second Circuit followed this second approach when it concluded that New York’s statute of limitations for certain enumerated intentional torts did not reflect the diversity of § 1983 claims. B In choosing between the two alternatives endorsed by the Courts of Appeals — the intentional torts approach and the general or residual personal injury approach — we are mindful that ours is essentially a practical inquiry. Wilson, 471 U. S., at 272. Our decision in Wilson that one “simple broad characterization” of all § 1983 actions was appropriate under § 1988 was, after all, grounded in the realization that the potential applicability of different state statutes of limitations had bred chaos and uncertainty. Id., at 275; see also Burnett v. Grattan, 468 U. S. 42, 50 (1984) (courts selecting a state statute of limitations for § 1983 actions must “tak[e] into account practicalities that are involved in litigating federal civil rights claims”); accord, Felder v. Casey, 487 U. S. 131 (1988). Thus, our task today is to provide courts with a rule for determining the appropriate personal injury limitations statute that can be applied with ease and predictability in all 50 States. A rule endorsing the choice of the state statute of limitations for intentional torts would be manifestly inappropriate. Every State has multiple intentional tort limitations provisions, carving up the universe of intentional torts into different configurations. In New York, for example, §215(3), the intentional tort statute endorsed by petitioners, covers eight enumerated torts. See supra, at 237. But different provisions cover other specified intentional torts. Malpractice actions are governed by one provision; certain veterans’ claims, by another. In Michigan, separate statutes of limitations govern “assault, battery, or false imprisonment,” Mich. Comp. Laws §600.5805(2) (1979), “malicious prosecution,” §600.5805(3), “libel or slander,” §600.5805(7), and “all other actions to recover damages for the death of a person or for injury to a person §600.5805(8). In Ohio, separate provisions govern “bodily injury,” Ohio Rev. Code Ann. §2305.10 (Supp. 1987), “libel, slander, malicious prosecution, or false imprisonment,” §2305.11, and “assault or battery,” §2305.111. Similarly, in Pennsylvania, separate provisions govern “libel, slander or invasion of privacy,” 42 Pa. Cons. Stat. § 5523(1) (1988), “assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process,” §5524(1), “injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another,” § 5524(2), and “[a]ny other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct.” §5524(7). Were we to call upon courts to apply the state statute of limitations governing intentional torts, we would succeed only in transferring the present confusion over the choice among multiple personal injury provisions to a choice among multiple intentional tort provisions. In marked contrast to the multiplicity of state intentional tort statutes of limitations, every State has one general or residual statute of limitations governing personal injury actions. Some States have a general provision which applies to all personal injury actions with certain specific exceptions. Others have a residual provision which applies to all actions not specifically provided for, including personal injury actions. Whichever form they take, these provisions are easily identifiable by language or application. Indeed, the very idea of a general or residual statute suggests that each State would have no more than one. Potential § 1983 plaintiffs and defendants therefore can readily ascertain, with little risk of confusion or unpredictability, the applicable limitations period in advance of filing a § 1983 action. Petitioners’ argument that courts should borrow the intentional tort limitations periods because intentional torts are most analogous to § 1983 claims fails to recognize the enormous practical disadvantages of such a selection. Moreover, this analogy is too imprecise to justify such a result. In Wilson, we expressly rejected the practice of drawing narrow analogies between § 1983 claims and state causes of action. 471 U. S., at 272. We explained that the Civil Rights Acts provided “[a] unique remedy mak[ing] it appropriate to accord the statute ‘a sweep as broad as its language.’ Because the § 1983 remedy is one that can ‘override certain kinds of state laws,’ Monroe v. Pape, 365 U. S. 167, 173 (1961), and is, in all events, ‘supplementary to any remedy any State might have,’ McNeese v. Board of Education, 373 U. S. 668, 672 (1963), it can have no precise counterpart in state law. Monroe v. Pape, 365 U. S., at 196, n. 5 (Harlan, J., concurring). Therefore, it is ‘the purest coincidence,’ ibid., when state statutes or the common law provide for equivalent remedies; any analogies to those causes of action are bound to be imperfect.” Ibid, (footnotes omitted). The intentional tort analogy is particularly inapposite in light of the wide spectrum of claims which § 1983 has come to span. In Wilson, we noted that claims brought under § 1983 include “discrimination in public employment on the basis of race or the exercise of First Amendment rights, discharge or demotion without procedural due process, mistreatment of schoolchildren, deliberate indifference to the medical needs of prison inmates, the seizure of chattels without advance notice or sufficient opportunity to be heard.” Id., at 273 (footnotes omitted). See also id., at 273, n. 31; Blackmun, Section 1983 and Federal Protection of Individual Rights — Will the Statute Remain Alive or Fade Away?, 60 N. Y. U. L. Rev. 1, 19-20 (1985). Many of these claims bear little if any resemblance to the common-law intentional tort. See Felder v. Casey, 487 U. S., at 146, n. 3. Even where intent is an element of a constitutional claim or defense, the necessary intent is often different from the intent requirement of a related common-law tort. E. g., Hustler Magazine v. Falwell, 485 U. S. 46, 53 (1988) (distinguishing constitutional “malice” in the First Amendment context from common-law “malice”). Given that so many claims brought under § 1983 have no precise state-law analog, applying the statute of limitations for the limited category of intentional torts would be inconsistent with § 1983’s broad scope. We accordingly hold that where state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions. III The Court of Appeals therefore correctly applied New York’s 3-year statute of limitations governing general personal injury actions to respondent Okure’s claim. Our decision in Wilson promised an end to the confusion over what statute of limitations to apply to § 1983 actions; with today’s decision, we hope to fulfill Wilson’s promise. Accordingly, the judgment of the Court of Appeals is Affirmed. New York Civ. Prac. Law §214 provides in relevant part: “The following actions must be commenced within three years: “5. an action to recover damages for a personal injury except as provided in sections 214-b, 214-c and 215 . . . .” In relevant part, § 1988 provides: “The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this Title, and of Title ‘CIVIL RIGHTS,’ and of Title ‘CRIMES,’ for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . . . .” 42 U. S. C. § 1988. See Shapiro, Choosing the Appropriate State Statute of Limitations for Section 1983 Claims After Wilson v. Garcia: A Theory Applied to Maryland Law, 16 Balt. L. Rev. 242, 251-256 (1987) (describing different approaches to determining the appropriate statute of limitations for § 1983 actions); Note, Retroactive Application of Wilson v. Garcia: Continued Confusion to a Troubled Topic, 44 Wash. & Lee L. Rev. 135, 135, n. 4 (1987) (same); Comment, Statutes of Limitations in Federal Civil Rights Litigation, 1976 Ariz. S. L. J. 97, 116-126 (same). See Preuit & Mauldin v. Jones, 474 U. S. 1105, 1108 (1986) (White, J., dissenting from denial of certiorari) (“[CJonflicting principles . . . have determined the statutes of limitations chosen for § 1983 actions in the Tenth Circuit on the one hand and the Fifth and Eleventh Circuits on the other”); Wilson, 471 U. S., at 286-287 (O’Connor, J., dissenting) (anticipating dilemma facing courts in States with more than one statute of limitations for personal injury claims). See, e. g., Mulligan v. Hazard, 777 F. 2d 340 (CA6 1985) (selecting Ohio statute of limitations for libel, slander, assault, battery, malicious prosecution, false imprisonment, and malpractice, and rejecting statute of limitations for bodily injury or for injury to the rights of the plaintiff not enumerated elsewhere), cert. denied, 476 U. S. 1174 (1986); Gates v. Spinks, 771 F. 2d 916 (CA5 1985) (selecting Mississippi statute of limitations for most intentional torts, and rejecting statute for causes of action not otherwise provided for), cert. denied, 475 U. S. 1065 (1986); Jones v. Preuit & Mauldin, 763 F. 2d 1250, 1254 (CA11 1985) (selecting Alabama statute of limitations for actions for “ ‘any trespass to person or liberty, such as false imprisonment or assault and battery,’ ” and rejecting statute for “ ‘any injury to the person or rights of another not arising from contract and not specifically enumerated in this section’ ”), cert. denied, 474 U. S. 1105 (1986). The Fifth and Sixth Circuits, however, on several occasions have departed from this approach. See, e. g., Kline v 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. 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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. COASTLAND CORPORATION, Appellee, v. THIRD NATIONAL MORTGAGE COMPANY, as successor to defendant John W. Murphree Company, Appellant, and Kenneth R. Larish and Grover C. Cauthen, Defendants. COASTLAND CORPORATION, Appellant, v. THIRD NATIONAL MORTGAGE COMPANY, as successor to defendant, John W. Murphree Company, Appellee. Nos. 78-1418, 78-1420. United States Court of Appeals, Fourth Circuit. Argued March 5, 1979. Decided Dec. 26, 1979. Thomas P. Kanaday, Jr., Nashville, Tenn. (Robert D. Tuke, Farris, Warfield & Kanaday, Nashville, Tenn., Braden Vandeventer, Robert L. O’Donnell, Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for Third National Mortgage Co. Philip G. Denman, Norfolk, Va. (James C. Howell, Willcox, Savage, Lawrence, Dickson & Spindle, Norfolk, Va., on brief), for Coastland Corp. Before RUSSELL and WIDENER, Circuit Judges, and DUMBAULD, Senior District Judge. United States District Court for the Western District of Pennsylvania, at Pittsburgh. WIDENER, Circuit Judge: Third National Mortgage Company (Mortgage Company or appellant), defendant in the action below, appeals from the decision of the district court holding that it breached an oral commitment to provide construction financing to Coastland Corporation for the construction of a condominium project. The district court awarded Coastland $620,650.00 in damages for the breach. The Mortgage Company contends that the district court erred both in finding that an oral commitment existed and in its award of damages. Coastland has filed a cross-appeal contending that the district court’s limitation of damages was erroneous. Jurisdiction in this case is based upon diversity of citizenship, 28 U.S.C. § 1332, and both parties agree, as they did in the court below, that the disposition of the issues raised on appeal is controlled by the law of Virginia. Coastland brought suit in the district court against Third National Bank in Nashville; John W. Murphree Company, now Third National Mortgage Company (appellant); Kenneth R. Larish, President of Third National Mortgage Company; and Grover C. Cauthen, former Vice President of John W. Murphree Company, alleging that Third National Mortgage Company breached an alleged agreement made through Cauthen to provide construction financing to Coastland for the proposed construction of a condominium project to be known as the Schooner Point Condominium in Currituck, North Carolina. The district court either dismissed as to, or found for, Third National Bank, Cauthen and Larish. Those actions are not questioned on appeal. As noted, however, it entered judgment against the Mortgage Company. The evidence adduced at trial includes the following. Coastland, a North Carolina corporation with its principal place of business in Virginia, was formed in 1970 and is engaged in the business of real estate development. In 1971, Coastland purchased approximately 600 acres of land approximately seven miles north of Duck and twenty-four miles north of Nagshead on the Outer Banks of North Carolina, for purposes of residential development. A master plan of development was prepared for this tract of land under the name Ocean Sands Subdivision. The plan included provisions for the construction of a condominium project to be known as the Schooner Point Condominium. This condominium project was envisioned as consisting of 134 units, with seventy-one units being constructed during the first phase of development. James E. Johnson, Jr., President of Coast-land, and Gary G. Cowan, a former officer of Coastland, testified that in January 1974 Coastland began to seek financing for the first phase (71 units) of the Schooner Point project. Appellant was one of the institutions Coastland went to in search of financing. Johnson and Cowan testified that Coastland sought both construction and permanent financing for the project, and entered into discussions with Cauthen, who was acting on behalf of the Mortgage Company, for that purpose. In connection with the seeking of financing for the condominium project, Coastland provided appellant with cost breakdowns, projected sales figures, estimated budgets, plans, legal documents and other information relating to the project. Johnson and Cowan testified that after the above documentation was supplied, appellant, acting through Cauthen, verbally agreed in May 1974 to provide Coastland with both construction and permanent financing for the first phase of the project. The commitment to provide permanent financing to qualifying individual purchasers of the proposed condominiums was reduced to a written agreement dated June 26,1974. It was for a total of $3,100,000.00, and was to expire on December 31, 1975. Coastland agreed to pay a fee of $100,000.00 for the commitment for permanent financing. At the time Coastland accepted the permanent financing commitment, it paid appellant $50,000.00 in cash therefor, and issued a note for $50,000.00 payable on or before November 1, 1974 for the unpaid balance of the commitment fee. There are no contentions between the parties concerning either the existence or terms of the permanent financing commitment. The verbal commitment to provide construction financing was not reduced to writing. However, Johnson testified that subsequent to Cauthen’s assurance in May 1974 that both construction and permanent financing would be available Cauthen called him by telephone to inform him that he, Cauthen, had worked out the details of the financing with Cowan. Cowan testified that the construction financing was to be in the amount of 2.2 million dollars at 4x/2 percent over the prime interest rate, and that the financing would be available for up to eighteen months. Cowan also testified that Coastland was to pay appellant a fee of $20,000.00 to $40,000.00 for the construction financing commitment, but this fee was never paid. Both Johnson and Cowan testified that the construction financing commitment was not reduced to writing because of a tight banking situation precipitated by the collapse of the Franklin National Bank. They testified that several weeks after Cauthen assured them of construction financing, and prior to the issuance of the written commitment for permanent financing, Cauthen called Coastland to inform it that appellant’s parent company, Third National Bank, did not want it to make any commitments for approximately six months in order to improve its liquidity. Johnson and Cowan further testified that Cauthen related that because of this policy, funding for the construction financing commitment could not be immediately forthcoming, but that around January 1, 1975 funding for said commitment should be available. Cow-an testified that Cauthen said Coastland would be “on the top of the list and could go ahead and get [its] funding” in January 1975. Subsequent to the just mentioned telephone conversation and the execution of the written commitment for permanent financing, in a letter dated July 5, 1974, from Cowan to Cauthen, Cowan stated, “As we discussed, the 12/31/75 commitment date [for permanent financing] may be a little tight, and you indicated you would grant a reasonable extension if the need arises.” At trial, Cowan explained the reference to the permanent financing commitment date of December 31, 1975 as being too tight as follows: “Well, we had negotiated originally the terms of the permanent loan at the same time of the construction loan, and, therefore, we had set that date as a reasonable date because we intended to start construction in the immediate future, but the fact the construction loan now had been deferred for a period of six months we wanted to extend the period of the termination date of the permanent financing.!’ Johnson also testified that Coastland sought an extension of the termination date for the permanent financing commitment because appellant could not provide the construction financing at the time originally anticipated. Cauthen did agree to extend the termination date of the permanent financing commitment from December 31, 1975 to September 1, 1976. In October 1974, Cauthen went to Coastland’s offices in Virginia Beach, where the extension of time for the permanent financing commitment was executed. At that time, $25,000.00 was paid on the promissory note that had been given for the balance of the fee for the permanent financing commitment. The time for payment of the remaining $25,000.00 balance was extended from November 1, 1974 to April 1, 1975, and a new promissory note was issued for the balance. Johnson testified that this new arrangement for paying the balance of the fee for the permanent financing commitment was adopted “because the permanent loan was extended because the construction loan was going to be provided later.” Additionally, both Johnson and Cowan testified that at this October 1974 meeting Cauthen reassured them that he thought the construction financing would be available in January 1975, and certainly no later than April 1975. Johnson further testified that in early 1975 he contacted Larish, whom he understood to be the new president of appellant, to exercise the commitment for the construction financing loan. Johnson testified that Larish informed him that he would check into the matter and get back in touch with him, but never did. Johnson said that he tried to contact Larish numerous times via telephone, letter, and his attorney, but never received any response to his inquiries. Larish admitted that he did not respond to these inquiries of Johnson or his attorney. Larish began his employment with appellant in February 1975. He testified that the construction financing matter first came to his attention in March 1975 during discussions with Cauthen, as well as after receiving a memorandum from Cauthen that discussed the matter. Larish further testified that Cauthen stated to him that he never “verbally or formally” committed appellant to provide Coastland with construction financing but, rather, made a single commitment to provide Coastland with permanent financing. A number of internal memoranda sent between various employees of the Mortgage Company were introduced by Coastland which support its contention that appellant entered into a binding commitment to provide Coastland with construction financing. Cauthen sent a memorandum dated October 22, 1974 to Richard G. Keeran, then President of John W. Murphree Company, that concerned the Schooner Point project. Cauthen stated in that memo: “I am sure that you will agree with me that this is a fine piece of work on my part to have negotiated such a deal under this intense pressure in the worst money market anyone can remember. As the market begins to turn, I am confident that we can obtain back-up for our commitments from investors in the New Jersey area.” (Emphasis added) No explanation was offered by appellant at trial as to Cauthen’s reference to commitments in the October 22, 1974 memorandum, although opportunity to explain was offered. Cauthen also sent a memorandum dated March 18, 1975 to Larish that stated, in part: “When we originally issued our permanent loan commitment, we had hoped to provide construction financing, however due to market conditions, and our own shortages of funds, we were unable to come up with an interim loan commitment.” Additionally, Larish sent a memorandum dated April 8, 1975 to Chip Stanley, then appellant’s capital asset manager, that stated, in part: “They [Coastland] paid $75,-000.00 in front end points for our take-out commitment and Grover [Cauthen] indicated to them [Johnson and Cowan] at the time that we would make the construction loan as well. Because we didn’t have ready funds to make this deal, Grover convinced them to just take the end mortgage commitment.” (Emphasis added) Larish testified that he was merely relating to Stanley what Johnson had informed him Cauthen had done and that at the time he sent the above memo to Stanley he assumed Johnson was correct in his assertions. He further testified that after checking into the matter he determined that Johnson was not correct in his assertion that Cauthen had assured Coastland that appellant would provide it with construction financing. But the district court did not accept this explanation. In this same April 8th memo from Larish to Stanley, Larish further stated: “Would you please have Scott or J.P. dig into this case and acquaint us with all the facts and the genesis of the deal? If it can be solved by us getting a backup take-out commitment now, it might be a way for us to help them [Coastland] and get off the hook at the same time.” (Emphasis added) Regarding the quoted language, Larish testified, “The hook I was referring to is: We had when I got with the company over a hundred million dollars of commitments, 88 percent of which were condominium and land development loans. We were on the hook, to use that terminology, for over 50 million dollars of permanent loans on condominiums. We were trying to reduce that potential outstanding.” Again, the district court did not accept the explanation. Based, in part, upon the testimony of Johnson and Cowan, which the court characterized as uncontradicted and unchallenged, as well as the above mentioned memoranda, the court determined that there was a binding agreement between the Mortgage Company and Coastland for appellant to furnish construction financing for the first phase of the Schooner Point Condominium project. As previously mentioned, the court awarded Coastland $620,-650.00 as damages for the breach of said agreement. The court arrived at the $620,-650.00 figure by allowing Coastland to recover one-half of its projected profits on the first phase (71 units) of the project; one-half of the expenses it incurred for architectural, engineering and legal services, as well as other expenses it incurred, in preparation for the construction of the first phase of the project; and the $75,000.00 it paid as a fee for the permanent financing commitment. Additionally, the court ordered appellant to surrender to Coastland the unpaid note for $25,000.00 that constituted the balance of the $100,000.00 fee for the permanent financing commitment. I Appellant contends the district court erred in finding that it made a commitment to provide Coastland with construction financing for the first phase of the Schooner Point Condominium project. This contention is vitiated somewhat by the fact that the Mortgage Company now acknowledges that the district court’s fact findings are supported by the record, leaving the definiteness of the terms of the contract and the measure of damages as its essential arguments. In any event, after considering the evidence of record, including the testimony of Johnson and Cowan and the memoranda mentioned above, we do not think the district court erred in finding that the Mortgage Company made a commitment to Coastland to provide it with construction financing. FRCP 52(a). Appellant argues that a construction loan of the magnitude of the one at issue here would not have been so loosely entered into, especially without having been reduced to writing. However, as the Virginia Court stated in Twohy v. Harris, 194 Va. 69, 72 S.E.2d 329, 334-35 (1952), “While there is force to the argument, the fact that the parties did not reduce the agreement to writing was but a circumstance to be weighed ... in determining whether the agreement was entered into.” And, as the Twohy court also stated, the absence of a written memorandum does not, of course, make Johnson’s and Cowan’s testimony as to the verbal contract incredible. A related contention is the assumption that the Mortgage Company would not have entered into such a construction loan agreement absent an agreement in writing. No writing was executed, however, apparently because of the Mortgage Company’s parent company’s policy, adopted in June 1974, of not making any commitments for approximately six months. Appellant cites Atlantic Coast Realty Company v. Robertson’s Ex’r, 135 Va. 247, 116 S.E. 476, 478 (1923), for the proposition “that when it is shown that the parties intend to reduce a contract to writing -this circumstance creates a presumption that no final contract has been entered into, which requires strong evidence to overcome.” Assuming that a writing was contemplated, and the district court did not address the point, that case is subject to the qualification stated by the Court in Manss-Owens Co. v. H. S. Owens & Sons, 129 Va. 183, 105 S.E. 543, 547 (1921): “the mere fact that a written contract was contemplated does not necessarily show that no binding agreement had been entered into.” The court further stated: “The whole question is one of intention. If the parties are fully agreed, there is a binding contract, notwithstanding the fact that a formal contract is to be prepared and signed; but the parties must be fully agreed and must intend the agreement to be binding. If though fully agreed on the terms of their contract, they do not intend to be bound until a formal contract is prepared, there is no contract, and the circumstance that the parties do intend a formal contract to be drawn up is strong evidence to show they did not intend the previous negotiations to amount to an agreement.” Id., citing Boisseau v. Fuller, 96 Va. 45, 30 S.E. 457 (1898). In the instant case, we think the evidence of record supports the district court’s finding that a binding verbal commitment- was given by appellant to Coastland to provide it with construction financing for the first phase of the Schooner Point project, and that any presumption to the contrary was overcome. We do not think the district court was clearly erroneous in its finding that appellant intended to be bound by its verbal commitment made through Cauthen. FRCP 52(a). II Appellant’s primary contention with regard to the existence of a binding agreement is that, even if a commitment was given to Coastland to provide it with construction financing, the terms of the agreement were so incomplete and uncertain so as to render such agreement unenforceable. It argues that a typical construction loan commitment would contain the following terms: amount of the loan; limitation of principal amount; term of the loan; options to extend; interest rate; computation of interest; prepayment penalties; identification of contractors and location of construction; closing agent; loan servicing arrangements; title insurance; construction performance bonds; architectural specifications to be complied with; filing responsibilities; collateral documents to be prepared; provisions for payment of expenses incurred; commitment fee; provisions for the release of individual units when sold; the manner of making disbursements; and special conditions. It contrasts the terms of the construction financing commitment as testified to by Cowan, i. e., amount— $2,200,000.00; term of the loan — 18 months; interest rate — 4V2 percent over an unspecified prime rate; and commitment fee— $20,000.00 to $40,000.00, with the above enumerated terms purportedly contained in a typical construction loan commitment, and argues that the construction financing commitment in issue here is too incomplete and uncertain to be enforceable. Appellant relies upon Progressive Construction Co. v. Thumm, 209 Va. 24, 161 S.E.2d 687, 691 (1968), in which the court stated: “It is fundamental that no person may be subjected by law to a contractual obligation, unless the character of the obligation is definitely fixed by an express or implied agreement of the parties. In order to be binding, an agreement must be definite and certain as to its terms and requirements; it must identify the subject matter and spell out the essential commitments and agreements with respect thereto. * * * ” See also Parker v. Murphy, 152 Va. 173, 146 S.E. 254, 257 (1929), and Smith v. Farrell, 199 Va. 121, 98 S.E.2d 3, 7 (1957). While it is true that a contract to be valid and enforceable must be complete and definite in its terms, “reasonable certainty is all that is required.” Smith v. Farrell, 199 Va. 121, 98 S.E.2d 3, 7 (1957). For, “[t]he law does not favor declaring contracts void for indefiniteness and uncertainty, and leans against a construction which has that tendency. While courts cannot make contracts for the parties, neither will they permit parties to be released from the obligations which they have assumed if this can be ascertained with reasonable certainty from language used, in the light of all the surrounding circumstances.” High Knob, Inc. v. Allen, 205 Va. 503, 138 S.E.2d 49, 53 (1964). See also McDaniel v. Daves, 139 Va. 178, 123 S.E. 663, 666 (1924). Additionally, ‘Where the relief sought is specific execution, it is essential that the contract itself should be specific. In other words, the certainty required must extend to all the particulars essential to the enforcement of the contract. But where there has been an entire breach, and compensation is asked in damages, it may be sufficient if there be certainty only as to the general scope and stipulations of the contract.’ Manss-Owens Co. v. H. S. Owens & Son, 129 Va. 183, 105 S.E. 543, 547 (1921). See also McDaniel, 123 S.E. at 666. In the instant case, Coastland brought suit against appellant for damages, not specific performance. Accordingly, it is sufficient if there is certainty as to the “general scope and stipulations of the contract.” Manss-Owens, 105 S.E. at 547. When the construction financing commitment is construed in the light of the surrounding circumstances, we do not think the court below erred in finding that it was sufficiently complete and definite to be valid and enforceable. Johnson testified that Cauthen informed him that he had worked out the details of the loan with Cowan. Cowan testified that the loan was to be in the amount of $2.2 million at 4V2 percent over the prime interest rate, and that the loan was to be available for up to eighteen months. Cowan also testified that Coast-land agreed to pay a fee of $20,000.00 to $40,000.00 for the construction financing commitment. Appellant introduced no evidence to show that the terms of the alleged agreement were different than those testified to by Cowan. In light of the fact this is a suit for damages and not specific performance, we think the terms testified to by Cowan were sufficiently complete and definite so as to render the construction financing commitment valid and enforceable. Ill Appellant also contests the district court’s award of damages for the breach of its commitment to provide Coastland with construction financing. Appellant contends the court erred as a matter of law in allowing Coastland to recover one-half of its projected profits on the first phase (71 units) of the Schooner Point project. In allowing Coastland to recover one-half of its projected profits on the seventy-one units, the court recited the general rule of damages that, “[w]hen there has been a breach of a contract to lend money for a particular purpose, profits reasonably within the contemplation of the defaulting parties at the time the contract was made and which are lost by reason of the breach may be recovered, if capable of reasonable ascertainment.” Determining that profits were' reasonably within the contemplation of appellant at the time the construction financing commitment was given and that the projected profits were capable of reasonable ascertainment, the court awarded Coastland $482,750.00 in lost profits, such amount constituting one-half of Coastland’s projected profits on the seventy-one units. Although the rule as above stated may be the general rule, it has a corollary that distinguishes between the recovery of lost profits when an established business is involved and the recovery of lost profits when a new business, venture, or enterprise, or one merely in contemplation, is involved. In Virginia, as in most other jurisdictions: When an established business, with an established earning capacity, is interrupted and there is no other practical way to estimate the damages thereby caused, evidence of the prior and subsequent record of the business has been held admissible to permit an intelligent and probable estimate of damages. . . . But where a new business or enterprise is involved, the rule is not applicable for the reason that such a business is a speculative venture, the successful operation of which depends upon future bargains, the status of the market, and too many other contingencies to furnish a safeguard in fixing the measure of damages. Mullen v. Brantley, 213 Va. 765, 195 S.E.2d 696, 699-70 (1973). To the same effect are Kay Advertising Co. v. Olde London Transportation Co., 216 Va. 273, 217 S.E.2d 876, 878 (1975); Pennsylvania State Shopping Plazas, Inc. v. Olive, 202 Va. 862, 120 S.E.2d 372, 377 (1961); Sinclair Refining Co. v. Hamilton & Dotson, 164 Va. 203, 178 S.E. 777, 780 (1935). Thus, “where the business which is interfered with or prevented as a result of a breach of contract is a new or unestablished nonindustrial business, or one merely in contemplation, the anticipated profits from such business cannot be recovered, for the reason that it cannot be rendered certain that there would have been any profits at all from the conduct of such business.” Sinclair Refining Co. v. Hamilton & Dotson, 164 Va. 203, 178 S.E. 777, 780 (1935). In Pennsylvania State Shopping Plazas, Inc. v. Olive, 202 Va. 862, 120 S.E.2d 372 (1961), the court reversed a jury’s award of damages because the jury wrongfully considered loss of anticipated profits in arriving at its award. Plaintiff had brought suit for a breach of contract that involved the lease of a service station yet to be constructed. Evidence was offered by plaintiff and others on anticipated profits from the station’s operation. Although plaintiff was an experienced service station operator who successfully operated some fourteen service stations, the court held that anticipated profits based on the estimated number of gallons of gasoline that would be sold at the intended new service station site were not recoverable. The court stated: Such estimates cannot be made with any degree of certainty for a new business, since they are purely speculative and existing only in anticipation. The successful operation of a gasoline filling station business depends upon many factors, such as the personality of the operator and the service rendered by him and his employees, the popularity of the brand of gasoline sold, the condition of the market, and many other contingencies. Id. 120 S.E.2d at 378. Thus, the court held plaintiff’s proper measure of damages was the value of the lease in excess of the agreed rent for the term and any expenses or costs which the plaintiff may have reasonably incurred under the contract. And, in Mullen v. Brantley, 213 Va. 765, 195 S.E.2d 696 (1973), the court again reversed an award of damages that included anticipated profits from the contemplated operation of a Shakey’s Pizza Parlor, despite the fact plaintiff was a successful franchise operator. The court stated: In the present case it was impossible to determine the profit, if any, Mullen would have derived from the operation of a Shakey’s Pizza Parlor if he had established it on or near the Duke Street site . . Even though Shakey’s Pizza Parlors are a part of a national chain, the establishment of such a pizza parlor at or near the Duke Street site would nevertheless have been a new business. The profits derived from the Annandale, Hybla Valley and Rockville franchises and the national average of all Shakey’s Pizza Parlors, do not represent a reasonable basis upon which to judge with any degree of reasonable certainty what the profits would have been if Mullen had operated a Shakey’s Pizza Parlor at the Duke Street site. The amount of business Mullen would have had at the Duke Street site, and the anticipated profits therefrom, could have been based only on speculation and conjecture. We hold that Mullen’s proper measure of damages could not be based on loss of anticipated profits from an unestablished business. Id. 195 S.E.2d at 700. In the instant case, there is no doubt but that the Schooner Point Condominium project was a new venture or enterprise. Although Coastland has been in business since 1970, the Schooner Point project constituted a new endeavor. See Mullen and Pennsylvania State Shopping Plazas, supra. Consequently, the profits Coastland anticipated could only have been based upon speculation and conjecture. This is so because such business is an adventure, the successful operation of which depends upon future bargains, states of the market, and on too many other contingencies. Coastland has not attempted to distinguish the new business line of cases from the case at hand. Rather, Coastland argues, based on the general rule of damages, that since appellant was given documentation that included Coastland’s projected profits on the seventy-one units, appellant was aware of Coastland’s potential profits and therefore should be liable in damages for the loss of those potential profits. As the cases set forth above point out, there is a corollary to the general rule of damages that may be summarized as follows: When the business that is interfered with as a result of a breach of contract is a new business or venture, or one merely in contemplation, the anticipated profits from such business, cannot be recovered as an item of damages because it cannot be rendered reasonably certain that there would have been any profits at all from the conduct of the business. The fact Coastland supplied appellant with documentation that included Coastland’s projected profits on the seventy-one units does not make it certain that there would have been any profits at all from the sale of the seventy-one units. Accordingly, the district court’s award to Coastland of one-half of its anticipated profits on the sale of the seventy-one units is reversed. IV Appellant also contends that the balance of the court’s damage award was arbitrary and capricious. Its primary contention is that the court erred in including as an element of damages one-half of the architectural, engineering and attorneys’ fees incurred by Coastland prior to the time the construction financing commitment was given. Appellant also asserts that the court’s inclusion of the permanent financing commitment fee as an element of the damage award was erroneous. We disagree. A portion of the architectural, engineering, legal and other expenses incurred by Coastland in preparation for the construction of the project was incurred prior to the time appellant agreed to provide Coastland with construction financing. Appellant argues that such expenses were not properly included as an element of damages for breach of contract since those expenditures were not made in reliance upon the contract. “[0]ne injured by the breach of a contract to which he is a party is entitled to recover special damages which arise from circumstances peculiar to the particular case, where those circumstances were communicated to, or known by, the other party at the time the contract was made; that is, he may recover such damages as are the reasonable and natural consequences of the breach under the circumstances so disclosed and as may reasonably be supposed to have been in the contemplation of both parties.” 22 Am.Jur.2d, Damages § 59, at p. 90. See also 22 Am.Jr.2d, Damages § 69, at pp. 103-04. As previously mentioned, in the instant case, appellant was provided with documentation at the time Coastland applied for construction and permanent financing that included Coastland’s expected total expenditures for architectural, engineering and legal services, as well as other expenses, for the construction of the Schooner Point Condominium project. Consequently, appellant was aware that those expenses were or would be incurred by Coastland and, further, that a breach of its commitment to provide the construction financing might cause Coastland to suffer damages in the amount expended for such services. Without contradiction, and prior to the time such financing became generally unavailable, Coastland rejected offers by others to provide construction financing after the commitment from the Mortgage Company was made. In light of the above, we do not think the district court erred in including expenditures made by Coastland prior to the time the construction financing commitment was given when awarding Coastland one-half of the expenses it incurred in preparation for the construction of the project as damages for the breach of said commitment. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:

songer_r_nonp

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. EASTERN GREYHOUND LINES, Plaintiff-Appellant, v. Phillip FUSCO, Regional Director, National Labor Relations Board, Defendant-Appellee, and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, Intervenor-Appellee. No. 15153. United States Court of Appeals Sixth Circuit. Oct. 18, 1963. Theodore Yoorhees, Philadelphia, Pa. (Foster J. Fludine, Cleveland, Ohio, on the brief), for appellant. Herman M. Levy, N. L. R. B., Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, James C. Paras and Solomon I. Hirsh, Attys., N. L. R. B., Washington, D. C., on the brief), for defendant-appellee. Earle W. Putnam, Washington, D. C., for intervenor-appellee. Before CECIL, Chief Judge, O’SULLIVAN, Circuit Judge, and PECK, District Judge. O’SULLIVAN, Circuit Judge. By the action here involved, Plaintiff-Appellant, Eastern Greyhound Lines, sought to have the United States District Court at Cleveland enjoin Defendant-Appellee, Philip Fusco, Regional Director ©f the National Labor Relations Board, from conducting a representation election among the dispatchers and assistant dispatchers' employed by Eastern Greyhound Lines. Upon motion of Defendant-Appel-lee, the complaint was dismissed on a holding that the District Court was without jurisdiction of the cause. The matter was previously before this Court upon Eastern’s motion for an injunction pending this appeal from such order of dismissal. We denied the motion and our decision is reported as Eastern Greyhound Lines v. Fusco, 310 F.2d 632 (C.A. 6,1962). That opinion sets forth the posture of the litigation at the time the aforesaid motion was presented to us. Following dismissal of the complaint, the Regional Director had conducted an election by mail ballot, but had impounded the ballots awaiting our disposition of the motion for injunction pending appeal. After our denial of such motion, the ballots were counted. Thereafter, upon the full hearing of the appeal before us, it was reported that, by a vote of 74 to 49, the Union seeking bargaining rights, to wit: the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, had won the election and had been duly certified as bargaining representative of plaintiff’s dispatchers. It was also reported that upon Eastern’s refusal to bargain with Amalgamated as representative of the dispatchers, Amalgamated had filed an unfair labor practice charge with the Board alleging that Eastern had violated Sections 8(a) (5) and (1) of the Act by its refusal to honor the Board’s certification of the mentioned Union. We have not been advised of the present status of such proceeding. This controversy began when Amalgamated had petitioned for a representation election to determine a bargaining representative for the group of Eastern’s employees known as dispatchers and assistant dispatchers. The thrust of plaintiff’s complaint was that such dispatchers were not employees within the meaning of Section 2(3) of the National Labor Relations Act, 29 U.S.C.A. § 152(3), and were supervisors as defined in Section 2(11) of said Act, 29 U.S.C.A. § 152(11); and that by virtue of Section 14(a) of the National Labor Relations Act, 29 U.S. C.A. § 164(a), it could not be required to bargain collectively with such supervisors. Attached to plaintiff’s complaint as an exhibit was the Decision and Direction of Election made by the Board, in which it adopted and affirmed rulings made by its hearing officer. Such Decision discloses that an extensive hearing was had for the purpose of resolving the issue as to whether or not Eastern’s dispatchers were, within the meaning of the statute, supervisors. Upon evidence taken, the issue was decided against Eastern. The Board found that the mentioned dispatchers were not supervisors, and an election was ordered. Plaintiff’s complaint alleged, in part, that the Board had come to an erroneous conclusion on the issue before it; that its decision was in conflict with the overwhelming preponderance of the evidence; that the Board had ignored the “uncontradicted evidence that dispatchers have aways been considered supervisors”; that the Board’s decision was arbitrary and capricious and “in excess of the Board’s delegated powers and not supported by the evidence”; that it constituted an abuse of discretion; that the action of the Board was an invasion of plaintiff’s property rights and denied plaintiff due process of law in violation of the Fifth Amendment to the Constitution of the United States. It further charged that if its dispatchers were found to be other than supervisors, plaintiff would suffer irreparable loss. The District Judge stated: “The Court is of the opinion that when the Board’s decision purports to follow the statutory requirements, and violates no constitutional rights, the Court does not have jurisdiction to review that decision by reweighing the evidence, even when the allegations of the complaint allege that by an arbitrary and capricious abuse of judgment the Board has flaunted a statuory mandate.” We agree with the District Judge. The Board contends that Eastern’s only remedy to review the certification order of the Board is through Sections 9(d) and 10(e) of the Act (§§ 159(d), 160(e) Title 29, U.S.C.A.) whereby an employer may, by resistance to an unfair labor charge, obtain review of such certification. Where a representative election has been held by the Board, and an order entered directing an employer to bargain with a certified bargaining representative, such order is not self-enforcing. Unless it is obeyed, the Board is required by Section 10(e) to apply to the United States Court of Appeals for an order enforcing its order, and under Section 10(f) an employer may likewise petition the Court of Appeals for review of the Board’s order. By Section 9(d) it is provided that upon such a hearing there shall be included in the record the transcript of all proceedings had in connection with a representative election and certification, and the Court of Appeals may, upon its consideration of the matter, review the legality of the election and certification order. But for one case hereinafter noted, it appears to have become settled law that, unless an employer can bring itself within the limited exceptions of Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed. 2d 210, its challenge to a Board’s election or certification orders can be made only when enforcement or review of said orders is sought in the Court of Appeals under § 10(e) or (f) of the Act, 29 U.S. C.A. § 160(e) and (f). Atlas Life Ins. Co. v. Leedom, 109 U.S.App.D.C. 97, 284 F.2d 231, 232 (C.A.D.C.1960); Leedom v. International Brhd. of Elec. Workers, 107 U.S.App.D.C. 357, 278 F.2d 237, 239 (C. A.D.C.1959); Norris, Inc. v. N. L. R. B., 85 U.S.App.D.C. 106, 177 F.2d 26, 27, 28 (C.A.D.C.1949); Volney Felt Mills, Inc. v LeBus, 196 F.2d 497, 498 (C.A.5, 1952); McLeod v. Local 476, United Brhd. of Industrial Workers, 288 F.2d 198, 201 (C.A.2, 1961); International Ass’n. of Tool Craftsmen v. Leedom, 107 U.S.App.D.C. 268, 276 F.2d 514, 516 (C.A.D.C. 1960), cert. denied, 364 U.S. 815, 81 S.Ct. 45, 5 L.Ed.2d 46; National Biscuit Div. v. Leedom, 105 U.S.App.D.C. 117, 265 F.2d 101, 103 (C.A.D.C. 1959), cert. denied 359 U.S. 1011, 79 S.Ct. 1151, 3 L.Ed.2d 1037; Consolidated Edison Co. of N. Y. v. McLeod, 302 F.2d 354, 355 (C.A.2, 1962). It had been held that under § 10(e) of, the Act the Courts of Appeals can review only “final orders” of the Board and that an election and certification order is not such. American Fed. of Labor v. N. L. R. B., 308 U.S. 401, 409, 60 S.Ct. 300, 84 L.Ed. 347. The above cases thoroughly discuss the reason supporting the rule we follow. We need not here reargue its soundness. It is sufficient to say that these decisions express the view that Congress deliberately designed its statute so that collective bargaining would not be impeded or delayed by allowing injunctions to suspend its beginning until a Board order could be tested by plenary review in the District Courts. Congress, aware of the construction placed on its statute, has refused to so amend it as to provide an earlier and more direct review. See discussion of the relevant legislative history in the dissenting opinion of Justice Brennan in Leedom v. Kyne, 358 U.S. at p. 197, 79 S.Ct. at p. 188, 3 L.Ed.2d 210. Departure from the unanimity of the decisions above referred to may be found in Boire v. Greyhound Corp., 309 F.2d 397 (C.A. 5, 1962), affirming Greyhound Corp. v. Boire, D.C., 205 F.Supp. 686. While we might contend that its facts distinguish it from the case at bar, we recognize that decision’s disagreement with the rule we follow. We respectfully decline to follow it. The case is pending in the Supreme Court upon certiorari granted (372 U.S. 964, 83 S.Ct. 1090, 10 L.Ed.2d 128). As in other cases where District Court attack was made on an election and certification order, Eastern places reliance on Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210. There the Supreme Court sustained District Court jurisdiction where the Board admittedly ignored express provisions of the Act. That case’s distinction from the case at bar is made clear by the court’s following recital: “On the Board’s appeal it did not contest the trial court’s conclusion that the Board, in commingling professional with nonprofessional employees in the unit, had acted in excess of its powers and had thereby worked injury to the statutory rights of the professional employees” (358 U.S. 187, 79 S.Ct. 183, 3 L.Ed.2d 210). In the case before us, the Board conducted a hearing and on evidence, some of it conflicting, found that Eastern’s dispatchers were not supervisors. We do not think that by charging that this finding was contrary to the facts, was arbitrary and capricious, and an invasion of Eastern’s constitutional rights, Eastern’s complaint presented a case calling for entertainment by the District ■Court under the rule of Leedom v. Kyne. We find only one case in which the Supreme Court has, since Leedom v. Kyne, held that its facts sustained District Court jurisdiction. In McCulloch v. Sociedad Nacional de Marineras de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547, the Supreme Court held that our National Labor Relations Act did not give the Board jurisdiction to order a representation election, sought by an American union, among employees on foreign flag ships, who were aliens and already represented by foreign unions. The Supreme Court there said, “ * * * the presence of public questions particularly high in the scale of our national interest because of their international complexion is a uniquely compelling justification for prompt judicial resolution of the controversy over the Board’s power” (372 U.S. 17, 83 S.Ct. 675, 9 L.Ed.2d 547). District Court jurisdiction was sustained. The Court was careful to say, however, “The exception recognized today is * * * not to be taken as an enlargement of the exception in Kyne.” We find nothing in the case at bar to warrant its being excepted from the general rule. Eastern’s attack on the election and certification order must be made on the review provided by § 10 (e) of the Act. Judgment affirmed. Question: What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number. Answer:

songer_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". UNITED STATES of America, Plaintiff-Appellee, v. Michael Rudy THAM, Defendant-Appellant. No. 90-10573. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 17, 1991. Decided Nov. 5, 1991. Doron Weinberg, Larson & Weinberg, San Francisco, Cal., for defendant-appellant. Sara M. Lord, U.S. Dept, of Justice, Criminal Division, Washington, D.C., for plaintiff-appellee. Before CHOY, and SNEED, Circuit Judges, and KELLEHER, Senior District Judge. The Honorable Robert J. Kelleher, Senior United States District Judge, sitting by designation. CHOY, Circuit Judge: A federal jury convicted Michael R. Tham for attempting to corruptly influence United States District Judge Stanley A. Weigel. Also convicted were Tham’s co-conspirators: ex-crime figure Abraham Chalupowitz, alias “Trigger Abe” Chapman, and United States District Judge Robert P. Aguilar. Tham was found guilty under 18 U.S.C. § 1503 for the substantive offense of endeavoring to influence the due administration of justice, and under 18 U.S.C. § 371 for both conspiracy to defraud the United States and conspiracy to influence the due administration of justice. Tham appeals his criminal conviction and sentence, alleging that the district court erred when it (1) denied his motion for a preliminary evidentiary hearing under Franks v. Delaware; (2) admitted into evidence incriminating telephone conversations which were intercepted without probable cause and which were the fruit of a prior illegal wiretap; (3) denied Tham’s motion for a continuance of his trial date; (4) excluded certain testimonial and documentary evidence which would have helped to exculpate Tham; (5) issued jury instructions which failed to enumerate all the elements of conspiracy and which incorrectly defined the requirement of proving guilt beyond a “reasonable doubt”; and (6) incorrectly classified Tham’s criminal convictions under 18 U.S.C. § 371 as two separate “pseudo-counts” of conspiracy under the United States Sentencing Guidelines. We AFFIRM. FACTUAL AND PROCEDURAL BACKGROUND Since 1949, Tham had served as a union official in San Francisco for Local 856, an affiliate of the International Brotherhood of Teamsters. Tham was an active and well-known participant in numerous Teamster affairs and organizations. On the basis of the cooperation and testimony of former organized crime figure Aladena T. “Jimmy” Fratianno, former acting boss of the Los Angeles mafia, the FBI investigated Tham’s activities. On May 21, 1980, a federal jury convicted Tham under 29 U.S.C. § 501(c) for embezzling union funds and making a false entry into union records. Judge Weigel fined Tham $50,000 and sentenced him to serve consecutive terms of six months in prison and four years on probation. In July 1987, seeking to vacate his conviction and recover over $200,000 in back-pay and attorney’s fees, Tham filed a motion for habeas corpus under 28 U.S.C. § 2255 before Judge Weigel. In an effort to gather information about Judge Weig-el’s handling of the case and to gain favorable treatment from Judge Weigel, Tham called upon Abe Chapman and Edward Solomon to solicit the help, advice, and personal influence of Judge Aguilar. Abe Chapman, was distantly related to Judge Aguilar by marriage. Attorney Edward Solomon was a friend and former law-school classmate of Judge Aguilar. In return, for Judge Aguilar’s assistance, Tham used his union connections to find a job for Lou Aguilar, the judge’s brother. Tham, Chapman, and Aguilar were indicted on June 13, 1989. The first trial began on February 5, 1990 and ended in a mistrial on March 19, 1990 with the jury deadlocked on counts against Tham and Aguilar. A retrial was scheduled for June 4, 1990. On April 16, 1990, Tham filed a pretrial motion to sever his case from that of his co-defendants. The Government joined in Tham’s motion on May 1, 1990. The court granted the severance motion but denied Tham’s motion to continue his trial date until after the trials of his co-defendants. Tham was tried for the second time and, on June 20, 1990, found guilty. On June 26,1990 Tham moved for a new trial, which the court denied on August 31, 1990. On November 14, 1990, Judge Bechtle entered a judgment of conviction, fined Tham $20,-000, and sentenced him to eighteen months in prison to be followed by three years on probation. ANALYSIS I. Franks Hearing for Defective Wiretap Affidavit To prove the existence of the conspiracy and to establish that there had been attempts to corruptly influence Judge Weig-el, the Government sought to present pen register and wiretap evidence that documented the conspirators’ patterns of communication and revealed the contents of their telephone conversations. Before trial, Tham moved to suppress evidence obtained from three wiretap authorizations of April 22, 1987, September 11, 1987, and October 21, 1987. After a non-evidentiary hearing on February 2, 1990, the district court ruled on February 5, 1990 to suppress evidence from the April wiretap while admitting evidence from the September and October wiretaps. Although Tham argued that the September and October wiretaps were the tainted fruits of the illegal April wiretap, the court ruled that the September and October wiretaps were supported by sufficient independent source evidence of probable cause and necessity. Tham alleges that it was error to authorize the April and September wiretaps. In support of the wiretap applications, the Government submitted the April 20, 1987 and September 20, 1987 affidavits of FBI special agent Thomas Carlon. First, Tham argues that each affidavit, on its face, failed to establish probable cause for a wiretap under 18 U.S.C. § 2618(3). Second, Tham argues that each affidavit was defective under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and that the district court erred by not granting him a full Franks evidentiary hearing. Applying practical common sense and examining the totality of the circumstances as the Supreme Court did in Illinois v. Gates, 462 U.S. 213, 230, 238, 103 S.Ct. 2317, 2328, 2332, 76 L.Ed.2d 527 (1983), we find that there was a substantial basis for concluding that probable cause for the wiretaps existed. United States v. Dozier, 844 F.2d 701, 706 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988). The April affidavit provided probable cause to believe that Tham was conspiring with others to procure bribes and kickbacks in return for Union approval of certain employee health benefit contracts. Also named in the affidavits were Angelo T. Commito, then President of Labor Health and Benefit Plan, Inc., real estate developer William Richard Baldwin, labor consultant Martin Bacow, Abe Chapman, Theresa Gene Vaughn, then President of American Digitron, Inc., and Bart J. Burg executive vice-president of American Digitron. The September affidavit contained evidence sufficient to furnish probable cause to believe that Tham was planning to participate in and profit from a fraudulent public offering involving Best Refrigerated Express and a kickback scheme involving the sale of wooden pallets. Both affidavits alleged facts sufficient to establish necessity. Under Franks v. Delaware, 438 U.S. at 156, 98 S.Ct. at 2676, and United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir.1985), evidence seized pursuant to a search warrant or wiretap must be suppressed if the defendant can prove by a preponderance of the evidence that: (1) in the affidavit in support of the search warrant or wiretap, the affiant included a statement which he knew was false or whose veracity he recklessly disregarded, and (2) the false statement was necessary to the magistrate’s finding of probable cause. We have since extended Franks to include deliberate or reckless omissions. United States v. Stanert, 762 F.2d 775, 781, amended, 769 F.2d 1410 (9th Cir.1985). The ultimate question of whether a false statement or omission is necessary to a finding of probable cause, is a mixed question of law and fact which we review de novo. We review the district court’s underlying factual determinations for clear error. United States v. Ippolito, 774 F.2d 1482, 1484 (9th Cir.1985). In addition to arguing below that the April affidavit failed to establish probable cause and necessity, Tham also argued that two omissions rendered the April affidavit defective and necessitated a full Franks evidentiary hearing. First, the affidavit failed to mention a March 12, 1987 telephone conversation between Angelo Commito and Martin Bacow during which Commito stated that he didn’t want to talk to Tham or involve him in any further discussions about an eye-care insurance kickback scheme. Second, according to Tham, the affidavit also failed to mention that, as of April 20, Tham and Commito had not spoken to each other for three months. The first omission did not render the April affidavit defective or entitle Tham to a full Franks evidentiary hearing. Tham offered no proof that the omission was intentional or reckless. At worst the omission was negligent. Even if the omission had been intentional or reckless, its inclusion would not have extinguished probable cause. Nor did Tham prove that the second omission arose from intentional or reckless conduct. Even if the second omission was the product of bad faith conduct by law enforcement officials, addition of the omitted material would not have eliminated probable cause. Far from terminating the deal altogether, Commito merely expressed grumbling dissatisfaction on January 26, 1987 with the deal’s prospects and on March 12, 1987 with Tham’s handling of the deal. However, there was also evidence that Commito was still willing to pursue further negotiations. On February 12, 1987, Commito indicated that if Tham and officers of American Digitron “pursue this properly ... maybe something can happen.” Furthermore, Tham continued his efforts to bring the scheme to fruition, making calls to American Digitron, Bacow, Baldwin, and Chapman as late as mid-April 1987. Bacow, in turn, stayed in frequent touch with Commito. Finally, we conclude that the September and October affidavits were not the fruits of an illegal April wiretap. First, because the April wiretap was properly authorized, and second, because the September and October affidavits were based on evidence derived from sources independent of the April wiretap. Even if the September and October wiretaps were tainted fruits of the illegal April wiretap, use of the information would have been permissible under the Leon good faith exception to the fourth amendment exclusionary rule. II. Motion to Continue Trial Date We review a district court’s denial of a motion for continuance for an abuse of discretion. We do not find an abuse of discretion unless we conclude that the denial was arbitrary and unreasonable in light of four relevant factors: (1) the extent of the defendant’s diligence in readying the defense; (2) the likelihood that the continuance would have satisfied the defendant’s need; (3) the inconvenience to the court, opposing party, and witnesses; and (4) the extent to which the defendant may have been harmed. To demonstrate reversible error, the defendant must show that the denial resulted in actual prejudice to his defense. United States v. Shirley, 884 F.2d 1130, 1134 (9th Cir.1989). Tham argues that his co-defendants Aguilar and Chapman would have been willing to proffer exculpatory testimony at his trial, upon the condition that their trials precede Tham’s. To this end he submitted the affidavits of his attorney and of counsel for his co-defendants. The Government argues that the likelihood that Tham’s co-defendants would furnish exculpatory testimony was “speculative and contingent.” We disagree. This eventuality need not be a certainty. Byrd v. Wainwright, 428 F.2d 1017, 1021-22 (5th Cir.1970) (citing United States v. Echeles, 352 F.2d 892, 898 (7th Cir.1965)). Nor is defense counsel required to furnish an affidavit or give formal testimony under oath attesting to his intent to use the co-defendants’ testimony. Id. at 1020. As for denial of the continuance, on the one hand, a trial court is not obligated to accommodate a defendant’s strategic aspirations. On the other hand, by denying Tham’s continuance, the district court may have granted severance in form alone, only to take it away in substance. See United States v. Gay, 567 F.2d 916, 918-20 & n. 6, 921 (9th Cir.), cert. denied, 435 U.S. 999, 98 S.Ct. 1655, 56 L.Ed.2d 90 (1978) (wherein court denied motion for severance conditioned upon promise of exculpatory testimony by co-defendants). In Gay, 567 F.2d at 921 & n. 8, we suggested in dictum that it would have been an abuse of discretion for the district court to first grant severance expressly to enable a codefendant witness to offer exculpatory testimony and then to deny the continuance which would have deterred the witness from invoking the fifth amendment. Here, however, the district court was well within its discretion, in the regular management of its calendar, to schedule Tham’s trial first, leaving Aguilar and Chapman free to either waive or invoke the fifth amendment privilege against self-incrimination. Id. at 920. This is because Tham has failed to prove that the district court’s primary purpose for granting severance was to facilitate the anticipated testimony of a co-defendant, rather than, for example, to avert prejudice due to conflicting trial strategies (i.e., a decision to plead guilty) or due to the fact that incriminating evidence was admissible against one co-defendant, but not against others. United States v. Kaplan, 554 F.2d 958, 966-67 (9th Cir.), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977). Moreover, in this instance, Tham could have availed himself of transcripts of Judge Aguilar’s testimony from the first trial. Chapman’s testimony would merely have been cumulative of Judge Aguilar’s testimony. In addition, Aguilar’s counsel suffered an unanticipated disabling injury and received a ninety-day continuance of his client's trial. Under the circumstances, the district court did not abuse its discretion in concluding that a further continuance of Tham’s trial would cause undue delay. III. Exclusion of Evidence A trial court’s decision to admit or exclude evidence is subject to review for an abuse of discretion. Shirley, 884 F.2d at 1132. At both trials, the court refused to admit into evidence tape J-1867 involving a December 20, 1987 conversation between Tham and his attorney Linda Offner. On both occasions, the court ruled tape J-1867 inadmissible because it was hearsay and concerned irrelevant matters. Though non-hearsay if offered to prove Tham’s state of mind, we agree that tape J-1867 was properly excluded as irrelevant. During Tham’s first trial, the district court admitted into evidence one portion of tape K-736 (a conversation between Tham and his attorney Edward Solomon), which the prosecution used to incriminate Tham. Tham, relying on the rule of completeness embodied by Federal Rule of Evidence 106, sought to play the entire tape and admit the entire transcript of the tape over the Government’s hearsay and relevancy objections. Judge Bechtle ruled that, during the prosecution’s case-in-chief, Tham could not play the entire tape but could use the entire transcript for impeachment purposes. The court also ruled that Tham could play the balance of the tape while presenting his own case. At the second trial, Judge Bechtle ruled that the balance of the conversation on tape K-736 was inadmissible, either in transcript or tape form. This time, the court ruled that the tape was hearsay and irrelevant. Tham argues that the court was bound by the law of the case to admit the balance of tape K-736 pursuant to its ruling during the first trial. See generally Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir.1990). We agree that under the law of the case doctrine as applied by this circuit it is error for a court upon retrial to reverse an identical evidentiary ruling made during the first trial, barring clear error or a change in circumstances. United States v. Estrada-Lucas, 651 F.2d 1261, 1263-65 (9th Cir.1980). Here, although there was no change in trial circumstances, the trial court committed clear error in the first trial when it ruled to admit the irrelevant evidence. In addition, the tape was merely cumulative of other testimony presented as to Tham’s state of mind, namely his earnest belief in the merits of his § 2255 habeas corpus petition, which point the Government conceded. It was therefore harmless error for the court to so reverse itself without explanation. During the first trial Judge Weigel testified that in many cases it would be proper for a judge to advise a lawyer on procedural matters concerning a case not pending before that judge. The Government made no objection. Several questions later the Government made a belated hearsay objection which the court overruled. Later still Judge Weigel testified that FBI agents asked him to secretly record his next conversation with Judge Aguilar. Once again, the Government made no objection to the substance of the testimony. On retrial, the Government raised a timely objection to the question posed by Tham’s counsel: whether there is “anything illegal about one judge giving legal advise [sic] to a claimant in a matter pending before another judge?” Thus, law of the case doctrine did not apply and there was no abuse of discretion. Although neither the court nor counsel provided a ground for the objection, the question calls for a legal conclusion material to the case and based on disputed facts. As for the question of whether FBI agents asked Judge Weigel to record his next conversation with Judge Aguilar, the district court committed clear error in the first trial when it admitted the latter portions of Judge Weigel’s hearsay testimony, which was properly excluded in the second trial. It was harmless error for the district court to fail to specify its reason for altering its ruling. The request of the FBI agents did not demonstrate bias or prejudice, but indicated a legitimate course of investigation. Cf. United States v. Puchi, 441 F.2d 697, 702 (9th Cir.), cert. denied, 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 92 (1971) (Government agent allegedly asked witness to lie about appellant’s guilt). Thus, the FBI request was offered for the truth of the matter therein asserted. IV. Jury Instructions on Conspiracy and Reasonable Doubt Tham argues that the jury instructions failed to specify the degree of criminal intent necessary to convict Tham for the underlying offense of endeavoring to obstruct justice. We review de novo the legal question of whether a jury instruction misstates an element of a statutory crime. United States v. Spillone, 879 F.2d 514, 525 (9th Cir.1989), cert. denied, — U.S. -, 111 S.Ct. 210, 112 L.Ed.2d 170 (1990). We find the jury instructions on conspiracy adequate as to all elements, including the specific intent for obstruction of justice. See United States v. Tuohey, 867 F.2d 534, 536-38 (9th Cir.1989); United States v. Andreen, 628 F.2d 1236, 1248 (9th Cir.1980). Tham’s counsel concedes that a specific intent instruction was given. Tham argues that the jury instructions incorrectly defined the concept of “reasonable doubt.” Jury instructions need not be perfect to withstand challenge on appeal. The proper inquiry is whether, considering the charge as a whole, the trial court’s instructions fairly and adequately covered the issues presented, correctly stated the law, and were not misleading. Frank Briscoe Co. v. Clark County, 857 F.2d 606, 612 (9th Cir.1988), cert. denied, 490 U.S. 1048, 109 S.Ct. 1957, 104 L.Ed.2d 426 (1989) (quoting Coursen v. A.H. Robbins Co., 764 F.2d 1329, 1337, modified, 773 F.2d 1049 (9th Cir.1985)). We find that the jury instructions adequately defined the concept of “reasonable doubt.” Brief for the United States of America at 48. Tham also claims that he was prejudiced by the court’s failure to provide either counsel with a written copy of the jury instructions before they were read to the jury. This was because the court had not prepared them until the time for delivery of closing arguments. Even if the court’s action constituted a violation of Federal Rule of Criminal Procedure 30, we find no prejudice to Tham because neither party was “unfairly prevented from arguing its defense to the jury or substantially misled in formulating and presenting arguments.” United States v. Gaskin, 849 F.2d 454, 458 (9th Cir.1988). Although both parties may have been disadvantaged, counsel for both sides knew that conspiracy and reasonable doubt were to be among the concepts at issue. Moreover counsel had two opportunities to hear and raise objections to the content of the jury instructions — both during the initial reading of the court’s instructions and later when, in response to the jury’s questions, the court repeated its instructions on “conspiracy” and “reasonable doubt.” V. Sentencing for Conspiracies with Separate Objectives The Government indicated Tham under 18 U.S.C. § 371 for two separate conspiracies with two separate objectives — first, a conspiracy to commit an offense against the United States, and second, a conspiracy to defraud the United States. The Government also indicted Tham for “corruptly endeavoring to influence, obstruct, and impede the due administration of justice” in the federal court for the Northern District of California by using Judge Aguilar’s access to and influence with Judge Weigel to obtain an evidentiary hearing for Tham in his habeas corpus proceeding before Judge Weigel. This violation of 18 U.S.C. § 1503 was both the conspiratorial objective of and the substantive offense underlying the conspiracy to commit an offense against the United States. Tham argues that the district court erred in convicting him for two separate conspiracies because the jury verdict did not specify whether the jury had found Tham guilty on one or both charges of conspiracy. We find no error. We agree with the Government that where a defendant is charged with one conspiracy to commit several separate offenses, he may be convicted on a separate count of conspiracy for each separate object offense. United States Sentencing Commission, Guidelines Manual, § lB1.2(d) (Nov.1990) (hereinafter U.S.S.G.). Furthermore where the jury’s verdict fails to specify which of the charged offenses were the objects of the conspiracy, then the defendant may be convicted of those object offenses of which the court, were it sitting as a trier of fact, would convict the defendant. U.S.S.G. § lB1.2(d), comment, (n.5). Tham also argues that it was error for the district court to sentence him for the commission of two separate conspiracies when, in fact, he entered into but a single criminal conspiracy with a single conspiratorial objective. Looking to the Government’s bill of particulars and the district court’s jury instructions, we disagree. First, Tham was charged with conspiring to defraud the United States by three means: (a) obstructing an FBI investigation (Judge Aguilar warned the coconspirators of ongoing FBI visual surveillance and wiretaps); (b) impeding the lawful function of a federal district court (Judge Aguilar warned the coconspirators of the FBI investigation into their activities, intervened on Tham’s behalf in probation matters, used his access to and influence with Judge Weigel to get Tham a habeas corpus evidentiary hearing before Judge Weigel, and on the basis of his knowledge of and friendship with Judge Weigel gave the coconspirators information and advice on how to handle the habeas corpus case before Judge Weigel); and (c) corruptly influencing Judge Aguilar (Judge Aguilar disclosed confidential information concerning the FBI investigation, used information acquired as a judge to thwart the FBI investigation, used his access to and influence with Judge Weigel to advise and assist Tham with his habeas corpus case, and lent the prestige of his office to advance Tham’s private interests). First, the bill of particulars contains numerous redundancies in its recitation of acts in furtherance of conspiracy and unlawful conspiratorial objectives. It appears that there was but one conspiracy to overturn Tham’s embezzlement conviction by influencing Judge Aguilar, influencing Judge Weigel, and manipulating the prospects for success in Tham’s habeas corpus action. Second, under the law of this circuit, a defendant cannot be convicted under section 1503 for impeding the function of the FBI. Obstruction of justice requires acts to thwart some aspect of the Government’s judicial function. An investigation conducted by the FBI, the IRS, or some other governmental agency, does not constitute a judicial proceeding. United States v. Fayer, 573 F.2d 741, 745 (2d Cir.), cert. denied, 439 U.S. 831, 99 S.Ct. 108, 58 L.Ed.2d 125 (1978); United States v. Ryan, 455 F.2d 728, 733 (9th Cir.1972). However, a defendant may be convicted of conspiracy, or agreement to commit an offense, under section 371 whether or not he has actually committed that offense. The conspiracy may have an object offense that is a violation of either criminal or civil law. A conspiracy to defraud the United States need not involve pecuniary loss. Tuohey, 867 F.2d at 536-37. Here, there was a conspiracy to corruptly endeavor to influence Judge Weigel with the ultimate objective of overturning Tham’s 1980 embezzlement conviction. Subsequently there was a conspiracy to defraud the United States with the independent objective of thwarting the FBI investigation into the crime of endeavoring to obstruct justice. Under section 371, it is illegal to conspire to defraud the United States and any agency thereof, including the courts, officers of the court, the FBI, and the IRS. United States v. Rosengarten, 857 F.2d 76, 78-79 (2d Cir.1988), cert. denied, 488 U.S. 1011, 109 S.Ct. 799, 102 L.Ed.2d 790 (1989). The object of the conspiracy need not implicate a separate statutory violation, so long as the conduct impairs a government function. Id. at 78. For example, it was a violation of section 371 for an SEC employee to divulge confidential information from which coconspirators could profit. The violation of confidentiality was an act of dishonesty that “impaired the public confidence essential to the effective functioning of government.” United States v. Peltz, 433 F.2d 48, 51-52 (2d Cir.1970), cert. denied, 401 U.S. 955, 91 S.Ct. 974, 28 L.Ed.2d 238 (1971). Tham’s sentence for commission of two separate conspiracies was not error. AFFIRMED. . Chief Judge Peckham, sitting as a magistrate, initially authorized the April 22, 1987 wiretap application against Angelo Commito. During Commito’s trial, Judge Patel suppressed the wiretap and its fruits because the accompanying affidavit did not establish necessity under 18 U.S.C. §§ 2518(l)(c) & (3)(c). In suppressing evidence against Tham from the very same April wiretap, Judge Bechtle understandably relied on Judge Patel’s ruling. However, we subsequently reversed Judge Patel’s ruling in United States v. Commito, 918 F.2d 95 (9th Cir.1990). . Tham argues that the Leon good faith exception does not extend to wiretaps, however, in United States v. Leon, 468 U.S. 897, 923, 926, 104 S.Ct. 3405, 3421, 3422, 82 L.Ed.2d 677 (1984), the Supreme Court indicated that the good faith exception is an integral part of a Franks analysis in that only reckless or deliberate police conduct triggers suppression. In Ippolito, we extended Franks to include affidavits accompanying wiretap applications. See United States v. Malekzadeh, 855 F.2d 1492, 1497 (11th Cir. 1988), cert. denied, 489 U.S. 1029, 109 S.Ct. 1163, 103 L.Ed.2d 221 (1989) (applying good faith exception to wiretap affidavit). . We reject the holding of United States v. Akers, 702 F.2d 1145, 1147-49 (D.C.Cir.1983), wherein the court held that a retrial renders the first trial a nullity along with any evidentiary rulings therein. In the first place, Akers provides no rationale for ignoring a previous evidentiary ruling rendered in the same case, absent clear error or altered circumstances. Thus, despite the dictates of the law of the case doctrine with its implications for deference, consistency, and judicial economy, Akers would permit a judge arbitrarily to reverse his own ruling or that of another trial judge in the same case. Second, Akers relies upon legal precedents which do not support its position. The cases cited by the court merely provide that at retrial, counsel is free to make new motions, raise new objections, and present additional evidence, as if no previous trial had occurred. Id. at 1148. These pronouncements are irrelevant to the question of whether a trial court, faced with identical objections to the same piece of evidence, must adhere to a previous ruling in the "same case,” albeit a ruling from a mistrial. Furthermore, by analogy, prior case law favors the Ninth Circuit’s position. White v. Muriha, 377 F.2d 428, 431-32 (5th Cir.), aff’d on rehearing, 381 F.2d 34 (1967); Lincoln Nat'l Life Ins. Co. v. Roosth, 306 F.2d 110, 112-13, 114 (5th Cir.1962), cert. denied, 372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720 (1963) (on second appeal from retrial, when presented with same issue and body of evidence, law of the case requires adherence to decision of panel on first appeal); Chicago St. Paul, Minneapolis & Omaha Ry. v. Kulp, 102 F.2d 352, 353-55 (8th Cir.), cert. denied, 307 U.S. 636, 59 S.Ct. 1032, 83 L.Ed. 1518 (1939) (introduction of new evidence at retrial, if merely cumulative, will not bar application of law of the case on second appeal). See F. James & G. Hazard, Civil Procedure, § 11.5 (3d ed. 1985) ("Thus, a trial court will treat its own earlier rulings as conclusive in subsequent trial proceedings.”). . The Government attorney merely objected to the characterization by Tham’s counsel that the FBI agents had asked Judge Weigel to "wear a harness to try to entrap Judge Aguilar.” (emphasis added). When the court sustained the Government’s objection Tham's attorney rephrased his question and asked instead: "Did they want you to wear a harness or a recorder when you talked to Judge Aguilar?" To which Judge Weigel responded: “That’s correct, they did.” . Title 18, Section 371, of the United States Code provides: "§ 371. Conspiracy to commit offense or to defraud United States. If two or more persons conspire to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons to any act to effect the object of the conspiracy, each shall be fined not more than $10,000 Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_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. Ruben DARIO SANCHEZ, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. Isaac ROBINSON, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. Harold A. RUSSELL, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. Nos. 6376, 6340, 6379. United States Court of Appeals First Circuit. Heard Jan. 4, 1965. Decided Feb. 10, 1965. No. 6376: Donald E. Paulson, of Brown, Rudnick, Freed & Gesmer, Boston, Mass., by appointment of the Court, on brief for appellant. Francisco A. Gil, Jr., U. S. Atty., and Gilberto Gierbolini, Asst. U. S. Atty., on brief for appellee. No. 6340: Anthony A. Giannini, Providence. R. I., for appellant. William J. Gearon, Asst. U. S. Atty., with whom Raymond J. Pettine, U. S. Atty., was on brief, for appellee. No. 6379: Donald E. Paulson, Boston, Mass., by appointment of the Court, with whom Brown, Rudniek, Freed & Gesmer, Boston, Mass., was on brief, for appellant. William J. Koen, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., was on brief, for appellee. Before ALDRICH, Chief Judge, and SWEENEY and WYZANSKI, District Judges. ALDRICH, Chief Judge. These appeals from denials of three petitions under 28 U.S.C. § 2255, coming from three districts, seek to raise one ultimate question as to the sufficiency of the indictments, and may be disposed of in one opinion. We note, without more, that in two cases there are subsidiary questions which might well be determinative against the individual petitioners, but we prefer to reach the ultimate issue. This is whether an indictment charging unlawful transfer of a narcotic or drug without a written order, 26 U.S.C. § 4705(a) or § 4742(a), is fatally defective if it fails to give the name of the transferee. Petitioners rely upon Lauer v. United States, 7 Cir., 1963, 320 F.2d 187. In that case, arising under section 4705 (a), the court held that although the identity of the transferee was “not an element of the offense,” his name was nonetheless an essential part of the indictment because it was “central” to the prosecution. We gather from the opinion that the court had two considerations-in mind: that the name of the trans- feree was needed in order to prepare a defense, and to show, in case of a subsequent prosecution, the identity of the offense. Except for Lauer we know of no case which requires an indictment to supply with full particularity all that might be needed with respect to either of these matters. The test of an indictment is whether it sufficiently identifies, the offense, not whether it might have-been more complete. United States v. Debrow, 1953, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92. Alternatively, from the standpoint of double jeopardy, resort may be made to parol evidence. See Bartell v. United States, 1913, 227 U.S. 427, 433, 33 S.Ct. 383, 57 L.Ed. 583. In Russell v. United States, 1962, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240, on which the court in Lauer placed substantial reliance, the Supreme Court pointed out, at p. 766, at p. 1048 of 82 S.Ct. that the indictment was so “cryptic” that it would have permitted a “conviction to rest on one point and the af-firmance * * * on another.” It also-noted, at pp. 768-769, 82 S.Ct. 1038,!” that it could have permitted proof of an act that was not criminal at all. Neither situation prevails in the cases at bar. Each indictment stated all the elements of the offense and gave the date, the city where the transaction occurred, and either the weight, in case of heroin, or the number of cigarettes, in case of marihuana. - We align ourselves with those circuits which have declined to follow United States v. Lauer. United States. v. Dickerson, 6 Cir., 1964, 337 F.2d 343; Adams v. United States, 8 Cir., 1964, 333 F.2d 766, cert. den. 1/18/65; Clay v. United States, 10 Cir., 1963, 326 F.2d 196, cert. den. 377 U.S. 1000, 84 S.Ct. 1930, 12 L.Ed.2d 1050. In each case judgment will be entered affirming the judgment of the District Court. . Robinson, petitioner in No. 6340, received a concurrent sentence on a count ■which he does not claim to be defective in itself. He seeks to extricate himself from this by claiming that the presence of the allegedly defective count prejudiced the jury. Russell, petitioner in No. 6379, pleaded guilty to two other counts, and received concurrent sentences. To avoid the consequence of this he argues that his guilty pleas were induced by verdicts improperly allowed to stand on the defective counts. . “§ 4705(a) General requirement. — It shall be unlawful for any person to sell, barter, exchange, or give away narcotic-drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary or his delegate.” Section 4742(a) is materially the same, except that it relates to marihuana. 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_jurisdiction

I

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. ALABAMA et al. v. UNITED STATES et al. No. 15, Original. Decided May 27, 1963. J. Kirkman Jackson, John P. Kohn, George Stephen Leonard, Richard L. Hirshberg, John W. Vardaman, John A. Caddell and 77ms. B. Hill, Jr. for plaintiffs. Solicitor General Cox, Ralph S. Spritzer and Louis F. Claiborne for the United States et al. Per Curiam. The motion for leave to file the proposed bill of complaint, as amended, is denied. In essence the papers show no more than that the President has made, ready to exercise the authority conferred upon him by 10 U. S. C. § 333 by alerting and stationing military pérsonnel in the Birmingham area. - Such purely preparatory measures and their alleged adverse general effects upon the plaintiffs afford no basis for the granting of any relief. Mr. Justice White took no part in the consideration or decision of this case. Question: What is the manner in which the Court took jurisdiction? A. cert B. appeal C. bail D. certification E. docketing fee F. rehearing or restored to calendar for reargument G. injunction H. mandamus I. original J. prohibition K. stay L. writ of error M. writ of habeas corpus N. unspecified, other Answer:

songer_respond2_8_3

F

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "other". Your task is to determine which of the following specific subcategories best describes the litigant. CONNER et al. v. CORNELL et al. Circuit Court of Appeals, Eighth Circuit. April 19, 1929. No. 8166. William Neff, of Tulsa, Okl. (L. E. Neff, of Tulsa, Okl., on the brief), for appellants. John Rogers, of Tulsa, Okl., and B. B. Blakeney, of Oklahoma City, Okl. (Blakeney & Ambrister, of Oklahoma City, Okl., and L. O. Lytle, of Sapulpa, Qkl., on the brief), for appellees. Before KENYON, Circuit Judge, and FARIS and SANBORN, District Judges. Rehearing denied July 8, 1929. KENYON, Circuit Judge. This is an appeal from a decree and judgment of the United States District Court for the Northern District of Oklahoma, granting a permanent injunction restraining appellants from proceeding further in a certain ease pending in the district court of Creek county, Okl., brought by Abbie (also spelled Abby) Conner and Nettie Conner v. H. U. Bartlett et al. The facts are these: Thomas Conner was a full-blood citizen of the Creek Nation and had received as his allotment the east one-half of the southeast quarter of section 4, and the east one-half of the northeast quarter of section 8, all in township 18 north, range 7 east, Creek county, Okl. He died intestate, leaving'surviving him Abbie Conner (bis widow), and Nettie Conner, Willie Conner, John Conner, and Thomas Conner, Jr., his children, all of whom were enrolled as full-blood citizens of the Creek Nation. In September, 1911, Abbie Conner and Nettie Conner made and executed a warranty deed, which was duly approved by the county judge of McIntosh county, Okl., to H. U. Bartlett, of their interest in the real estate hereinbefore described, viz., the allotment of Thomas Conner. In 1924 the United States instituted an equity suit in the United States District Court for the Eastern District of Oklahoma at the request of the Secretary of the Interior, and at the request of and in behalf of Nettie Conner, Willie Conner, John Conner, Thomas Conner, Jr., and Abbie Conner, against H. Ü. Bartlett et al., to set aside the deed made to said Bartlett of their interest in the allotment of Thomas Conner, deceased. The United States claimed in said action that the lands described therein as allotted to Thomas Conner were not subject to alienation and incumbrance, except by approval of the Secretary of the Interior after removal .of restrictions therefrom or as otherwise provided by law; that the restrictions upon alienation on said land had never been removed by the Secretary of the Interior, and it asked that the deed executed by Abbie Conner and Nettie Conner et al. to H. U. Bartlett be adjudged void and that the same be canceled. This suit was transferred to the United States District Court for the Northern District of Oklahoma and was numbered cause No. 8 equity, and will so hereinafter be referred to. Pleas, answers, and cross-petitions were filed and issues joined. Subsequently the United States Attorney for the northern district of Oklahoma, acting under the authority 'and direction of the Attorney General of the United States, filed a written motion asking that the court dismiss said case, No. 8, with prejudice. On February 20, 1926, the United States District Court for the Northern District of Oklahoma dismissed the same with prejudice, its order reading as follows; “Decree Dismissing Bill With Prejudice. “Now, on this 20th day of February, 1926, at this term, this cause came on for hearing, upon the motion of the United States Attorney for the Northern District of Oklahoma to dismiss with prejudice the above entitled suit, and the court being fully advised that said attorney for this District is duly authorized in the premises. “It is, therefore, ordered, adjudged and decreed that the bill of complaint of the above named plaintiff, heretofore filed herein and as amended, be and it is hereby dismissed, with prejudice to a future action. “[Signed] F. E. Kennamer, Judge.” March 16, 1927, Abbie Conner and Nettie Conner instituted suit in the district court of Creek county, OH., against H. U. Bartlett and the other appellees to set aside the deed made by them to Bartlett, and to recover their alleged interest in the allotment, hereinbefore described, of Thomas Conner, deceased, alleging that Abbie Conner inherited a dower interest, and Nettie Conner an undivided one-fourth interest in said property. This aetion related to the identical property at issue in the aetion brought by the United States in the United States District Court. Both of the actions set forth the same grounds as a basis for the cancellation of the deed executed by Abbie Conner, Nettie Conner et al. to H. U. Bartlett. The defendants in the action in the United States Court for the Northern District of Oklahoma were the same as the defendants in the action in the district court of Creek county, with the exception of certain defendants in the later action who obtained their interest by virtue of conveyances from defendant Rogers subsequent to the institution of said cause in the United States District Court for the Northern District of Oklahoma. April 17, 1927, Robert Oglesby, H. U. Bartlett, and the other appellees herein, all of whom were defendants in the suit pending in the district court of Creek county, Okl., commenced this action against Abbie Conner, Nettie Connor, and their attorneys, William Neff and L. E. Neff, asking that the United States Court for the Northern District of Oklahoma enjoin these parties from further proceeding with said cause in the district court of Creek county, Okl., on the ground that all the questions, facts, and things alleged by complainants in that court had been fully adjudicated in the action in the United States District Court, and had become res judicata. Appellants filed answers in said cause denying the authority of the Department of Justice to cause the former case to be dismissed with prejudice to future action, and claiming they were not barred from the prosecution of the ease in the district court of Creek county. Very little evidence was introduced, and on the 3d day of February, 1928, the court entered its decree making permanent a temporary injunction which it had theretofore issued as against appellants, Abbie Conner, Nettie Conner, William Neff, and L. E. Neff. By this decree appellants were enjoined and debarred from prosecuting said cause in the district court of Creek county, Okl., or from relitigating the questions involved in equity cause No. 8 in the United States District Court. Robert Oglesby, one of the appellees, is now deceased, and Herman D. Cornell, executor of the estate, has been substituted in his place. It is apparent that the real question here is the effect of the dismissal with prejudice to a future action in. cause No. 8 equity in the United States District Court for the Northern District of Oklahoma. That the United States, in its general supervision of its Indian wards and to protect them and their properties in pursuance of a national duty, has the right to invoke the equity jurisdiction of the federal courts and to bring an action to set aside conveyances claimed to he violative of restrictions upon alienation of Indian allotments is not a debatable proposition. In Sunderland v. United States, 266 U. S. 226, 233, 45 S. Ct. 64, 65 (69 L. Ed. 259), it is said: “we do not doubt the power of the United States to impose such a restraint upon the sale of the lands of its Indian wards, whether acquired by private purchase and generally subject to state control or not. Such power rests upon the dependent character of the Indians, their recognized inability to safely conduct business affairs, and the peculiar duty of the Federal Government to safeguard their interests and protect them against the greed of others and their own improvidence.” Heckman v. United States, 224 U. S. 413, 32 S. Ct. 424, 56 L. Ed. 820; Bowling v. United States, 233 U. S. 528, 34 S. Ct. 659, 58 L. Ed. 1080; LaMotte v. United States, 254 U. S. 570, 41 S. Ct. 204, 65 L. Ed. 410; Privett v. United States, 256 U. S. 201, 41 S. Ct. 455, 65 L. Ed. 889. Section 9 of the Act of May 27, 1908 (35 Stat. 315) is in part, as follows: “That the death of any allottee * * * shall operate to remove all restrictions upon the alienation of said allottee’s land: Provided, that no conveyance of any interest of any full-blood Indian heir of such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee.” This proviso' restricts the allotment of the full-blood Indian heir to the extent that his conveyance must be approved by the court having jurisdiction of the settlement of the estate of the deceased allottee, and the Supreme Court of the United States has held in the case of Parker v. Richard, 250 U. S. 235, 39 S. Ct. 442, 63 L. Ed. 954, that this agency, namely, the proper state court, in exercising the authority conferred by this act, is acting as a federal agency. See, also, Marcy v. Board of Comm’rs, 45 Okl. 1, 144 P. 611. The conveyance to H. U. Bartlett had been approved by the county court of McIntosh county, Okl., and the United States in its action claimed that fraud had been practiced upon that court. It is apparent that these heirs of Thomas Conner were under governmental restrictions in disposing of their land, namely, that the conveyance must •be approved by the state, court having jurisdiction of the estate of Thomas Conner. It is argued that Abbie Conner and Nettie Conner were not parties to the action brought by the United States in the federal court, and hence are not bound by its action. This is unavailing, and, in referring to the claim that the Indian wards had not been made parties in Heckman v. United States, 224 U. S. 413, 444, 32 S. Ct. 424, 434 (56 L. Ed. 820), the Supreme Court said: “This position is wholly untenable. There can be no more complete representation than that on the part of the United States in acting on behalf of these dependents — whom Congress, with respect to the restricted lands, has not yet released from tutelage. Its efficacy does not depend upon the Indian’s acquiescence. It does not rest upon convention, nor is it circumscribed by rules whieh govern private relations. It is a representation which traces its source to the plenary control of Congress in legislating for the protection of the Indians under its care, and it recognizes no limitations that are inconsistent with the discharge of the national duty. When the United States instituted this suit, it undertook to represent, and did represent, the Indian grantors whose conveyances it sought to cancel. It was not necessary to make these grantors parties, for the Government was in court on their behalf. Their presence as parties could not add to, or detract from, the effect of the proceedings to determine the violation of the restrictions and the consequent invalidity of the conveyances. * * * And it could not, consistently with any principle, be tolerated that, after the United States on behalf of its wards had invoked the jurisdiction of its courts to cancel conveyances in violation of the re- • strietions prescribed by Congress, these wards should themselves be permitted to relitigate the question.” Was the dismissal in equity cause No. 8 with prejudice to a future action a bar to the suit in the district court of Creek county, Okl? This court in Hickey v. Johnson, 9 F.(2d) 498, 501, quoted with approval Fowler v. Osgood (C. C. A.) 141 F. 20, 24 (4 L. R. A. [N. S.] 824), as follows: “A general judgment or decree of dismissal, without more, renders all the issues in the ease res adjudicata, and constitutes a bar to any subsequent suit for the same cause of action. Hence, when a court dismisses a suit upon some ground which does not go to the merits of the cause of action, but leaves them open to consideration in another court, or at another time, or in another way, the decree of dismissal must expressly adjudge that it is rendered for the specific reason upon which it is based, or must expressly provide that it is made without prejudice,” and held that a decree sustaining a demurrer and entering a judgment dismissing the bill of complaint is presumed to be a judgment on the merits. Again in Ledbetter v. Wesley, 23 F.(2d) 81, this court held that a general decree of dismissal in an equity cause was a decision on the merits. In Durant v. Essex Co., 7 Wall. 107, 109 (19 L. Ed. 154), the court said: “The decree dismissing the bill in the former suit in the Circuit Court of the United States being absolute in its terms, was an adjudication of the merits of the controversy, and constitutes a bar to any further litigation of the same subject between the same parties. A decree of that Hnd, unless made because of some defect in the pleadings, or for want of jurisdiction, or because the complainant has an adequate remedy at law, or upon some other ground wMeh does not go to the merits, is a final determination. Where words of qualification, such as ‘without prejudice,’ or other terms indicating a right or privilege to take further legal proceedings on the subject, do not accompany the decree, it is presumed to be rendered on the merits.” The court was careful in the present case to provide that the action was dismissed with prejudice to future action. These words certainly have a meaning and show that the court was passing on the merits of the ease, and felt that the United States had no ground for any relief in behalf of said Indian wards. It did not dismiss on the ground of want of parties or want of jurisdiction. The dismissal was evidently on the merits, for it cannot be presumed that the United States was not acting for the best interests- of its wards. The statutes of Oklahoma make provision with reference to dismissals with and without prejudice to future action, sections 664 and 665, Okl. Comp. Stat. of 1921. Those provisions are taken from the statutes of Kansas. Section 665, referring to dismissal without order of court, contains the following: “Provided, such dismissal shall be held to be without prejudice, unless the words ‘with prejudice’ be expressed therein.” In Hargis v. Robinson, 70 Kan. 589, 594, 79 P. 119, 121, where the trial court had dismissed a ease with prejudice, the Supreme Court said: “A dismissal under our practice differs from some of those suggested by plaintiffs in error in this: that it is a judicial act, rather than the act of the party. Whether ‘with prejudice’ or ‘without prejudice,’ it" is in the nature óf a judgment; and a judgment 'with prejudice,’ not set aside or reversed, is a final disposition of the controversy.” Hence, under the Oklahoma law a dismissal with prejudice would he a determination on the merits and a final disposition of the controversy. In view of the holdings of the Supreme Court of the United States and of this court, there can be no controversy over the proposition that the judgment of dismissal of equity cause No. 8 in the federal court with prejudice was a determination of the merits of the case, and would operate as a bar to relitigation between the same parties of the questions involved in that case. Counsel for appellants suggests that there was no authority in the District Attorney to move for a dismissal. The following letter was the basis of his action: , “Department of Justice “Washington, D. C. FKF-MDB “February 13, 1926. “John M. Goldesberry, Esq. United States Attorney, Tulsa, Oklahoma. “Re: U. S. v. H. U. Bartlett et al. “Sir: You are hereby authorized and instructed to dismiss, with prejudice, the above entitled ease. Kindly advise me when you have taken this action, and enclose for our files two copies of order of dismissal. “Respectfully, “For the Attorney General, “B. M. Parmenter, “Assistant Attorney General.” The court found that the District Attorney was duly authorized to dismiss the case. No fraud was claimed as to said dismissal. The court’s finding as to the authority of the District Attorney to ask for dismissal on the part of the government certainly would raise a presumption of authority, and there is nothing in the record to overthrow such presumption. Regardless of this, however, we are satisfied the Attorney General of the United States, acting for and on behalf of the government of the United States, as the head of its legal department, and having charge of the legal business of the government, had the right to request a dismissal of the case. The litigation of the government, unless otherwise provided by the Congress, is under his control. It is his duty to supervise the conduct of suits brought by the United States, and this covers suits brought to protect the Indian wards of the government. It is not necessary whenever a ease brought by the government should be dismissed to have an act of Congress therefor. Some power must exist somewhere to advise a court that the government desires to terminate a ease brought by it if it becomes satisfied that it should not be further pursued. We are satisfied the Attorney General had the authority to request dismissal of the case on behalf of the government, and the court had the right to enter judgment of dismissal. In Kern River Co. v. United States, 257 U. S. 147, 155, 42 S. Ct. 60, 63 (66 L. Ed. 175), the court said: “In the absence of some legislative direction to the contrary, and there is none, the general authority of the Attorney General in respect to the pleas of the United States and the litigation which is necessary to establish and safeguard its rights affords ample warrant for the institution and prosecution by him of a suit such as this.” Mullan v. United States, 118 U. S. 271, 6 S. Ct. 1041, 30 L. Ed. 170; United States v. San Jacinto Tin Co., 125 U. S. 273, 8 S. Ct. 850, 31 L. Ed. 747; United States v. Beebe, 127 U. S. 338, 8 S. Ct. 1083, 32 L. Ed. 121. In United States v. Parker, 120 U. S. 89, 7 S. Ct. 454, 30 L. Ed. 601, the court held that the decree of dismissal in the prior action constituted a bar to a second action by way of estoppel. The court upon motion of defendant’s attorneys, which was agreed to by the United States Attorney, had dismissed the first action on the ground that the subject-matter of the suit had been adjusted and settled by the parties, and the court said that was equivalent “to a judgment that the plaintiff had no cause of action, because the defense of the defendant was found to be sufficient in law and true in fact.” It is suggested also that the Secretary of the Interior had not requested the dismissal of the ease. Without determining whether or not that was necessary, we may say that the record does not show that he did not request the suit to be dismissed, nor does the record show that Abbie Conner and Nettie Conner did not request the suit to be dismissed. It is interesting in this connection to note the language in the Supreme Court in Heckman v. United States, supra, referring to the Indian wards, viz.: “The cause could not be dismissed upon their consent; they could not compromise it; nor could they assume any attitude with respect to their interest which would derogate from its complete representation by the United States. This is involved necessarily in the conclusion that the United States is entitled to sue, and in the nature and purpose of the suit.” The burden was on appellants to show want of authority on the part of the District Attorney to request dismissal and on the part of the court to enter such, dismissal. They have failed to carry the burden. The evidence of one of the counsel for appellants shows that he .was not advised'that the ease was to be dismissed, nor was he consulted about it. While it would seem- a matter of courteous custom to have advised counsel that such a proceeding was contemplated, it is of course not absolutely essential. If the authority existed in the Attorney General of the United States to direct the United States District Attorney for the Northern District of Oklahoma to move for dismissal, and if the court was satisfied as to-the authority of the United States Attorney, it was justified in entering the judgment of dismissal. • We are satisfied- that under this record the decree- and judgment of dismissal in equity • suit No. 8 brought by the United States in the federal court was-a bar to the litigation of the matters set forth in the suit brought by appellants, Abbie Conner and Nettie Conner in the district court of Creek •county, Okl. 1 The decree and judgment of the trial court enjoining appellants from proceeding with that ease was correct, and the same is affirmed.- Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "other". Which of the following specific subcategories best describes the litigant? A. Indian Tribes B. Foreign Government C. Multi-state agencies, boards, etc. (e.g., Port Authority of NY) D. International Organizations E. Other F. Not ascertained Answer:

songer_r_fed

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Arthur J. BURTON, Petitioner-Appellant, v. Dale E. FOLTZ, Respondent-Appellee. No. 85-1363. United States Court of Appeals, Sixth Circuit. Argued Sept. 23, 1986. Decided Feb. 2, 1987. Rehearing and Rehearing En Banc Denied March 23, 1987. Mark H. Magidson (argued), Detroit, Mich., for petitioner-appellant. Thomas A. Kulick (argued), Lansing, Mich., for respondent-appellee. Before WELLFORD, MILBURN and BOGGS, Circuit Judges. MILBURN, Circuit Judge. Petitioner-appellant Arthur Jackson Burton appeals the decision of the district court denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner argues that: (1) the law of the case doctrine precludes reconsideration by this court of issues decided on the appeal of his first petition for habeas relief; (2) the jury instruction in the state court impermissibly shifted the burden of proof on intent in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); and (3) the Sandstrom error was not harmless under the standard set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). As we agree with the decision of the district court and in view of the Supreme Court’s recent decision in Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), we affirm. I. Petitioner Arthur J. Burton’s conviction for assault with intent to murder arises from the stabbing of Deborah Boulley, his former girl friend and the mother of their young daughter. On November 29, 1973, petitioner went to Boulley’s home to discuss their relationship and the future of their child. When Boulley opened her door, petitioner forced his way into her house and held a gun to Boulley’s head. He first attempted to convince her that he did not plan to harm her by removing the bullets from his gun. However, when Boulley attempted to get away from him and to lock herself in her bathroom, petitioner followed her and began to stab her with a penknife. After being stabbed in the arms, neck, back, and chest approximately thirty times, Boulley fell to the floor. Petitioner then stabbed her seven or eight more times and left her in the bathroom while he ransacked the house in order to make it appear that the assault occurred during a burglary. He returned fifteen or twenty minutes later and asked Boulley whether she was still alive. When she responded, he stabbed her another eight times and threatened to kill their daughter. Subsequently, he carried her into the bedroom and promised not to kill her if she would swear on the Bible that she would not reveal what had occurred. She did so, and he called for an ambulance. In May 1974, six months after the assault, Boulley informed the police that petitioner was her assailant. PROCEDURAL HISTORY On July 22, 1985, following a jury trial, petitioner was convicted in the Recorder’s Court for the City of Detroit on the charge of assault with intent to murder. At the trial, the judge gave the jury an extensive charge on the issue of intent. The instruction included the following illustration challenged by petitioner: Now I have given you some illustrations. I hope you remember those. That if a person say pointed a gun at a man’s toe and shot him, that would be one thing, but if the person pointed the gun at somebody’s head and fired on him and later on said well I didn’t intend to kill him, I just intended to hurt him, you see the law presumes that an ordinary human being intends the ordinary consequences of his or her acts. You couldn’t run back and say, oh, well, I didn’t intend it to go that far, when you pointed it or you actually fired on somebody at a vital — at a portion of the person’s body. (Emphasis supplied). Petitioner was sentenced to life imprisonment. The Michigan Court of Appeals affirmed the conviction, People v. Burton, No. 25591 (Mich.App.1977), and the Michigan Supreme Court denied leave to appeal. Thereafter, Burton filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the district court for the eastern district of Michigan. The district court denied the petition on February 4, 1980. We reversed and remanded with instructions to grant the writ, concluding that the jury instruction deprived petitioner of due process of law by shifting the burden of proof on the issue of intent. Burton v. Bergman, 649 F.2d 428 (6th Cir.1981). Furthermore, we determined that the error was not harmless because “the jury might have entertained a reasonable doubt” that petitioner possessed the requisite intent. Id. at 432. The Supreme Court vacated this court’s decision and remanded for reconsideration in light of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), which requires dismissal of habeas corpus petitions containing exhausted and unex-hausted claims. Bergman v. Burton, 456 U.S. 953, 102 S.Ct. 2026, 72 L.Ed.2d 478 (1982). On remand, the district court allowed petitioner to amend his petition and granted the writ. We again reversed in an unpublished opinion on the ground that the district court erred by allowing an amendment instead of dismissing the petition. Burton v. Bergman, 729 F.2d 1460 (6th Cir.1984). Subsequently, the district court dismissed the petition. Petitioner then filed a second petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the second petition, and Burton filed this appeal raising the following issues: A. whether the law of the case doctrine bars reconsideration of issues decided in the appeal of his first petition for habeas relief; B. whether the jury instruction imper-missibly shifted the burden of proof on the issue of intent in violation of Sandstrom v. Montana, 442 U.S. 510 [99 S.Ct. 2450, 61 L.Ed.2d 39] (1979); and C. whether the alleged Sandstrom error was harmless under the standard set forth in Chapman v. California, 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (1967). II. A. Petitioner contends that this court is precluded from reconsidering issues decided in his first appeal. Specifically, he argues that we are bound by the determination of a prior panel of this court that “the inference that petitioner intended to murder Ms. Boulley when he assaulted her is by no means inescapable.” Burton, 649 F.2d at 432. As discussed above, our prior decision reversing and remanding to the district court with instructions to grant the writ was vacated by the Supreme Court. Consequently, we must now determine whether our prior vacated decision is in any way binding as the law of the case in the present appeal, which involves petitioner’s second petition for habeas relief. In Harrington v. Vandalia-Butler Board of Education, 649 F.2d 434 (6th Cir.1981), we determined that “a judgment on the merits ... will be deprived of its conclusive effect only if it is vacated, reversed, or set aside on direct appeal.” Id. at 438 (emphasis supplied). Although this statement is properly characterized as dictum, it is supported by decisions from other circuits. See, e.g., De Nafo v. Finch, 436 F.2d 737, 740 (3d Cir.1971) (per curiam). Furthermore, in Johnson v. Board of Education, 457 U.S. 52, 102 S.Ct. 2223, 72 L.Ed.2d 668 (1982) (per curiam), the Supreme Court vacated a judgment and declared that the law of the case doctrine would not constrain the district court or court of appeals upon reconsideration of the case. Petitioner contends that the prior decision as to his first petition should be given effect as the law of the case because the prior decision was vacated on procedural and not substantive grounds. He relies on Hill v. Western Electric Co., 672 F.2d 381 (4th Cir.), cert. denied, 459 U.S. 981, 103 S.Ct. 318, 74 L.Ed.2d 294 (1982), in which the court determined that it may be appropriate to reinstate the findings and conclusions supporting a judgment vacated on procedural grounds once the defect has been cured. Id. at 388 (emphasis supplied). “The critical limiting factor is of course that the error or defect must not have infected the merits of the very determination sought to be reinstated.” Id. Hill does not stand for the proposition that such findings must be reinstated. Even if we were persuaded by the rationale in Hill, its application would not require the reinstatement of the findings made in the prior determination of the petitioner’s first petition for habeas relief. We conclude that the proper approach is reflected by the statement in Harrington that a vacated judgment is deprived of its conclusive effect. 649 F.2d at 438. Consequently, the prior determination by this court as to the first petition is not binding on this panel. Another factor mitigates in favor of this conclusion. In this court’s prior determination, the panel appeared to be influenced by precedent in which we had, for purposes of the harmless error analysis, distinguished cases in which intent was contested from cases in which it was not. Burton, 649 F.2d at 432 n. 4. As discussed more fully below, the Supreme Court’s decision in Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), minimizes the importance of this distinction. A well-established exception to the law of the case doctrine operates to allow reconsideration of issues determined in prior proceedings when the controlling law has been changed. See, e.g., Amen v. City of Dearborn, 718 F.2d 789, 793-94 (6th Cir.1983), cert. denied, 465 U.S. 1101, 104 S.Ct. 1596, 80 L.Ed.2d 127 (1984); In re United States Steel Corp., 479 F.2d 489, 493-94 (6th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110 (1973). B. In Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), the Supreme Court held that a criminal defendant’s due process rights are violated when he is convicted on the basis of a jury instruction which a reasonable juror may interpret to shift the burden of proof on an element of the crime or to create a conclusive presumption with respect to an element of the crime which must be proved by the state beyond a reasonable doubt. In the present case, the jury was instructed that “the law, presumes that an ordinary human being intends the ordinary consequences of his or her acts.” We agree with the district court’s conclusion that this charge is “virtually indistinguishable” from the one found to be constitutionally defective in Sandstrom, and that the instruction unconstitutionally shifted the burden of proof on the issue of intent to the petitioner. However, even though the trial court erred in giving the instruction quoted above, petitioner's conviction will be upheld if the error was harmless beyond a reasonable doubt. Rose, — U.S. at -, 106 S.Ct. at 3108-09; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We. have consistently held that a Sandstrom instruction may be harmless error under certain circumstances. Logan v. Abshire, 778 F.2d 283 (6th Cir.1985) (per curiam) (defendant admitted premeditation); Martin v. Foltz, 773 F.2d 711 (6th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 3336, 92 L.Ed.2d 741 (1986) (defense of non-participation); Engle v. Koehler, 707 F.2d 241 (6th Cir.1983) (per curiam) (error not harmless when intent was contested), aff'd by an equally divided Court, 466 U.S. 1, 104 S.Ct. 1673, 80 L.Ed.2d 1 (1984); United States v. Crowder, 719 F.2d 166, 173 (6th Cir.1983) (en banc) (error harmless when instruction had “little or no application to any contested issue in the case”), cert. denied, 466 U.S. 974, 104 S.Ct. 2352, 80 L.Ed.2d 825 (1984); United States v. Williams, 665 F.2d 107 (6th Cir.1981) (error not harmless when element of knowledge was contested). Application of the harmless error standard permits the reviewing court to uphold the conviction only if it “may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, — U.S. -, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986); see Merlo v. Bolden, 801 F.2d 252, 257 (6th Cir.1986). Petitioner contends that, because his defense at trial was predicated on the presumption of innocence and the state’s burden of proving every element of the crime beyond a reasonable doubt, the error in this case cannot be harmless. He relies on a series of decisions in which this court emphasized the prejudicial effect of a Sand-strom instruction when the defendant contested the element of intent. This analysis was explained in Engle v. Koehler, 707 F.2d at 246: If the defendant acknowledges that an intentional, malicious killing occurred and only claims non-participation, then a Sandstrom instruction may be harmless. Conversely, if the defendant asserts lack of mens rea, a Sandstrom instruction can be extremely prejudicial even if overall proof of intent or malice is substantial. See Martin, 773 F.2d at 719; Conway v. Anderson, 698 F.2d 282, 285 (6th Cir.), cert. denied, 462 U.S. 1121, 103 S.Ct. 3092, 77 L.Ed.2d 1352 (1983). Despite petitioner’s contentions concerning the nature of his defense at trial, the •district court found, and we are inclined to agree, that petitioner’s defense was non-participation. However, even if we assume that petitioner’s intent was in issue, that determination will not necessarily preclude a finding of harmless error. The Supreme Court has recently determined that a Sandstrom error can be harmless even when the element of intent is contested. Rose, — U.S. at-, 106 S.Ct. at 3108-09. As earlier indicated, the question is whether, upon consideration of the whole record, “the evidence was so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.” Id. at-, 106 S.Ct. at 3109 (quoting Connecticut v. Johnson, 460 U.S. 73, 97 n. 5, 103 S.Ct. 969, 983 n. 5, 74 L.Ed.2d 823 (1983) (Powell, J., dissenting)). In Rose, the respondent was convicted in a Tennessee court on two counts of murder. He sought habeas corpus relief on the ground that the jury instruction unconstitutionally shifted the burden of proof on the issue of malice. The district court found that the instruction violated respondent’s due process right and that the error could not be harmless because respondent defended on the ground that he lacked the requisite intent to commit the crime. Clark v. Rose, 611 F.Supp. 294, 299-302 (M.D.Tenn.1983). This court affirmed in an unpublished opinion. Clark v. Rose, 762 F.2d 1006 (6th Cir.1985). The Supreme Court reversed, holding that a Sandstrom error “is not ‘so basic to a fair trial’ that it can never be harmless.” Rose, — U.S. at-, 106 S.Ct. at 3107. When review of the record as a whole indicates that the evidence of intent is “overpowering,” a finding of harmless error is appropriate. Id. at-, 106 S.Ct. at 3108-09. Thus, to the extent that Conway, En-gle and Martin instruct that a Sand-strom error cannot be harmless where a defendant challenges the element of mens rea, they are modified by Rose and no longer represent the correct statement of the law in this Circuit. In light of Rose, our determination of whether a Sandstrom instruction is harmless will no longer be “largely a function of the defense asserted at trial.” Engle, 707 F.2d at 246; see also Conway, 698 F.2d at 285. Rather, we will apply the traditional Chapman harmless error analysis to determine whether the record, examined in its entirety, establishes guilt beyond a reasonable doubt. The specific inquiry in a Sandstrom case will be “whether the evidence was so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.” Connecticut v. Johnson, 460 U.S. 73, 97 n. 5, 103 S.Ct. 969, 973 n. 5, 74 L.Ed.2d 823 (1983) (Powell, J., dissenting) (approved in Rose v. Clark, 106 S.Ct. at 3109). Merlo, 801 F.2d at 257. Application of the foregoing standard to the facts of the instant case supports the conclusion that the district court’s opinion must be affirmed. This is not a case in which the jury was precluded from considering the issue of intent. Cf. Hoover v. Garfield Heights Municipal Court, 802 F.2d 168, 177-78 (6th Cir.1986) (failure to instruct the jury on an essential element of the crime charged precluded application of the harmless error analysis). Rather, this is a case in which the court charged the jury that it could presume intent only if it found that petitioner was guilty of the underlying act charged. In Rose, the Court noted that when “the predicate facts conclusively establish intent, ... the erroneous instruction is simply superfluous: the jury has found, in Winship’s words, ‘every fact necessary’ to establish every element of the offense beyond a reasonable doubt.” — U.S. at-, 106 S.Ct. at 3108 (citation omitted). In the present case, the jury was required to find, and the guilty verdict establishes that it did find beyond a reasonable doubt, that petitioner was the assailant who attacked Deborah Boulley. Moreover, the undisputed facts in this case create an overwhelming inference of intent. Petitioner stabbed the victim approximately thirty-seven times. After he ransacked the house and returned to find that she was still alive, he stabbed her another eight times. Under circumstances such as these, we are confident in concluding “beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.” Merlo, 801 F.2d at 257 (quoting Connecticut v. Johnson, 460 U.S. 73, 97 n. 5, 103 S.Ct. 969, 982 n. 5 (Powell, J., dissenting)). Accordingly, we hold that the Sandstrom error was harmless beyond a reasonable doubt. III. For the reasons stated, the judgment of the district court dismissing the petition for habeas corpus is AFFIRMED. . We note that a panel of this court earlier described the theory of the defense as the failure of the prosecutor to prove every element of the case beyond a reasonable doubt. Burton, 649 F.2d at 430. As discussed above, this characterization is not binding upon this panel. 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_appel1_1_4

C

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant. AMERICAN WEEKLY, Inc., v. HOUSTON PRINTING CORPORATION. No. 10263. Circuit Court of Appeals, Fifth Circuit. March 17, 1943. As Amended on Denial of Rehearing May 26, 1943. W. L. Matthews, of San Antonio, Tex., and John P. Bullington, of Houston, Tex., for appellant. Frank J. Knapp, George W. Rice, and Jack Binion, all of Houston, Tex., for appellee. Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges. ! SIBLEY, Circuit Judge. American Weekly, Inc., (called herein American), publishes a weekly magazine in Chicago which it furnishes to many newspapers to accompany their Sunday editions as a Sunday supplement. On Aug. 28, 1937, it entered into a written contract with Houston Printing Corporation (called herein Houston) which publishes the Houston Post, to furnish each week as ordered copies of the Weekly’s magazine supplement “at a price of $13.05 per thousand copies of twenty-four pages each, subject to modifications as hereinafter set forth, f. o. b. the printing plant at Chicago.” The contract was cancellable on written notice to take effect on any Jan. 1, but not earlier than Jan. 1, 1940. Deliveries began Jan. 1, 1938. In April following Houston expressed dissatisfaction at the falling off in advertising matter in the supplement, in the income from which Houston shared under the contract. Early in 1939, Houston claimed that the contract provided for a definite ratio of advertising matter to other matter, which had not been maintained, and sought to cancel the contract. American denied this construction of the contract, and asserted that its-provisions were being fulfilled. Controversy continued, and Houston refused to pay monthly, as agjreed, for the supplements sent after April, 1939, and American ceased to remit Houstonls part of the advertising income after May, 1939. Houston, however, continued to order weekly the number of supplements it required, which were sent, and distributed; the disputants agreeing that without prejudice to their contentions the business should be carried on till Dec. 31, 1940. Thereafter, unable to reach a settlement, American sued Houston for $54,942 which it claimed. Houston denied owing anything, and pleaded that by reason of the deficiency in advertising matter American had wholly breached the contract, and could not recover on it; that for the reason stated American had partially breached 'the contract; that the contract is ambiguous as to the amount of advertising, but at the time of its execution it was distinctly understood that there would be 32% paid advertising, and that this was the effect of the provision in Par. 8(a) of the contract; that the contract was unilateral and not binding ; and by way of counterclaim, that by American’s failure to maintain the advertising ratio, Houston was damaged in having to pay an additional cost of printing the other matter, and an increased cost of freight so that Houston had overpaid American $15,-123 prior to April, 1939, and had been damaged $34,515 since. The judge tried the case without a jury. He found that there were no false statements to induce the contract, and no mutual mistake in its wording; that it was unambiguous, so that the parol evidence offered was not admissible or needed to explain it; that it meant thar paid advertising should balance other matter in the ratio of approximately fifty-four columns of the former to 114 columns of the latter, or 32% to 68% of the whole paper, and in each instance where the ratio was not maintained there was a violation of the contract by American. He concluded that each issue which did not maintain that ratio should not be paid for by Houston, nor should Houston share in its advertising income, but Houston should recover its outlay for freight thereon. Issues which did maintain the ratio should be settled for under the contract. He held the contract not unilateral, and not can-celled. The result was a recovery of $60,-710 by Houston against American. American appeals. It is plain the contract was not cancelled or rescinded, but was by mutual consent continued to Dec. 31, 1940; so there is no need to enquire whether Houston had good ground to end it. Nor need we enquire whether it was unilateral. We think Houston was by its terms probably bound to order its needs from week to week, but whether so bound or not, it did order, receive and distribute the supplements under the contract, reserving its contention as to the meaning of it. Settlement for the supplements according to the contract cannot be avoided even if the contract was originally unilateral. The written contract was before its signing carefully gone over and discussed, paragraph by paragraph, by the contracting parties. Nothing was omitted by accident, mistake or fraud. But we do not find in it any provision for an exact ratio between paid advertising and other matter which would render an issue of the supplement, for lack thereof, not the thing contracted for. American was not making a supplement for Houston according to exact specifications, but was furnishing issues of its weekly paper as published. It could control the amount of reading matter it would contain, but the amount of paid advertising necessarily was limited by what could be gotten, and the evidence is that this not only depends on business conditions, but is seasonal, at times hardly any being procurable. Houston knew this as well as American did. The analysis of the issues sent Houston shows a wide variation. In 1938 the first issue in May had 80 columns of advertising, but the last only 18% columns. Thereafter it averaged around 50 columns but in November. descended into the twenties. The second issue in December carried 68% columns, the third 16, and the fourth only one-tenth of a column. The advertising 'm the year previous to the making 0^ the contract was examined by the contracting parties and showed similar variations, though the average was considerably higher. We think experienced publishers would be unlikely to make an iron-clad contract as to the advertising to be included in each issue, and examining the contract we think they did not. The contract provides that Houston shall share in the advertising income actually collected each month. American’s share is much larger, so that American’s self interest could be relied on for due effort to secure advertising. We have no dispute about the advertising income and its division. The dispute u whether there is a contract for a ratio between advertising and other matter which was not maintained, and with what consequences. The provisions as to the make-up of the supplement and the price to be paid for it are copied in the margin. A price of $13.05 per thousand is first named for a supplement of 24 pages (168 columns) subject to modifications to be stated. It is then agreed in Par. 3 that the supplement is to consist of editorial matter (meaning all that is not advertising) and advertising, “based on a minimum editorial content of 84 columns per issue.” That much “reading matter” at least is to be furnished for Houston’s subscribers. No amount of advertising is here stipulated for. There follows in Pars. 5, 6 and 7 many provisions as to advertising rates and zones, and the sharing of the advertising income, but they throw no light on the amount of advertising space. Par. 8 returns to the price of the supplement, which is to be modified each week according to the size of the paper, increased or decreased by two pages, and the cost of labor, paper and ink. The opening sentence and the first of the five things named as the price basis is the important matter here: “Par. 8. It is agreed between the parties that the price of the magazine supplements to be furnished by the Weekly is based upon the following: (a) A 24 page supplement carrying approximately 54 columns of advertising.” Now twenty-four pages are 168 columns. There must (Par. 3) be a minimum of 84 columns editorial matter. We here are told that of the remaining 84 columns approximately 54 will be advertising, the other 30 columns being filled with additional editorial matter as needed. A ratio of 54 columns advertising to 168 editorial matter, or 32% to 68%, is thus indicated. But this Paragraph is not a description of the supplement which must be fulfilled by each issue to rendgr the issue tenderable, like the minimum of 84 columns of editorial matter is. Paragraph 8 is concerned with the price, and its variation from $13.05 per thousand because of the five variable elements it lists. One variable is the size, 24 pages, which may be varied in multiples of 2 pages, each 2 pages causing a change of $1,015 per thousand. Other variables are the cost of paper, ink and labor. The quantity of advertising is here mentioned for the first and only time. It is mentioned as a basis of price, and evidently is to affect the price along with the other things set forth in Par. 8. Thus a departure from the advertising ratio is not made a ground for rejecting an issue, as not filling the description of the thing to be delivered, but, as it enters into the basis of the price, it may affect the price. But the contract does not say how much it shall affect it. Nevertheless there would arise a partial failure of consideration which the court can adjust, measured by the pecuniary loss occasioned by the failure. Still a failure to secure the exact ratio of advertising is not to count, because of the use of the word “approximately”. That word means, “about”, “in the neighborhood of”. If the variation, averaged over the period considered, is substantial, causing Houston an unreasonable loss in the advertising income due it under the contract, Houston may recoup the loss. Excess of the ratio in issues where the ratio was exceeded will also be considered in making the average. As in all problems of damages, where no exact measure is provided, there is room for judgment and estimate by the fact finder. We think the mention of “approximately 54 columns of advertising” in the cost basis adjustment cannot be ignored as appellee contends. The words were intended to have an effect. The income from advertising was expected by the parties, in their negotiation, to reduce greatly the cost of the supplement to Houston. American pointed out Par. 8 to Houston as its protection against too little advertising. The parties differ as to what was then said, and as to what the just quoted words mean. We believe we have given them their just effect. We therefore conclude that since every issue of the supplement contained the minimum of 84 columns of editorial matter and some advertising, as required by Par. 3, no issue of the supplement could be altogether rejected, and none was. Since the papers were to be delivered to Houston f. o. b. Chicago, Houston can charge no freight to American. Houston is entitled to its part of advertising income collected on all issues. Houston is entitled to a fair abatement of price each year for a failure to carry approximately the proportion of advertising named in the price basis of the contract, the amount to be fixed by the trial court. The judgment is accordingly reversed and the cause remanded for further proceedings not inconsistent with this opinion. Rehearing denied; HUTCHESON, Circuit Judge dissenting. See 135 F.2d 733. “1. The Weekly agrees to produce and ship each week as many copies of the Weekly’s magazine supplements as are ordered by the newspaper at a price of Thirteen and 5/100 Dollars ($13.05) per thousand copies of twenty-four (24) pages each, subject to modifications as hereinafter set forth, f. o. b. the printing plant at Chicago. “3. The magazine supplement herein designated is to consist of editorial matter and advertising based on a minimum editorial content of eighty-four (84) columns per issue and such editorial content shall be free from controversial matter of opinion or policy. * * * * * “8. It is agreed between the parties that the price of the magazine supplements to be furnished by the Weekly is based upon the following: “(a) A twenty-four (24) page supplement carrying approximately fifty-four 154) columns of advertising. “(b) Cost of: Newsprint, $42.50 per ton; Standard Red Ink, .29 3/4 per lb., Standard Blue Ink, .23% per lb., Standard Yellow Ink, .18% per lb., Standard Black Ink, .065 per lb. Labor costs based on the union scales in effect in Chicago June 1, 1937. “(e) The price of the magazine supplement will be increased or decreased by the Weekly as the costs of any of these items increase or decrease. “(d) The price of the magazine supplements will increase or decrease in units of two pages on basis of costs stated under (b) and .(c) at the rate of $1,015 per thousand each two pages increase or decrease above or below twenty-four (24) pages. “(e) In the event that the Weekly should find it necessary to make delivery of the magazine supplements f. o. b. printing plants other than at Chicago, the price above mentioned would be adjusted to meet the following additions or deductions: “Local labor scales; additional freight charges on ink; cost of transporting newsprint from common carrier to plant. Mr. Maes, who contracted for Houston, testifies: “It was not my understanding that the ratio was to he maintained in every issue, because there are times during a year when it could not he met, but it is supposed to apply over a certain period, a year, or whatever you want to make it” Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant? A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities B. private attorney or law firm C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations D. school - for profit private educational enterprise (including business and trade schools) E. housing, car, or durable goods rental or lease F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc. G. information processing H. consulting I. security and/or maintenance service J. other service (including accounting) K. other (including a business pension fund) L. unclear Answer:

songer_geniss

F

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WILLOW MAINTENANCE CORP., Respondent. No. 422, Docket 28658. United States Court of Appeals Second Circuit. Argued May 13, 1964. Decided May 13, 1964. Seymour Strongin, Atty., National Labor Relations Board, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Lee M. Modjeska, Atty., Washington, D. C., on the brief), for petitioner. Stephen A. Cohen, New York City (Henry G. Friedlander and W. Harvey Mayer, New York City, of counsel), for respondent. Before KAUFMAN, HAYS and MARSHALL, Circuit Judges. PER CURIAM. The Board here seeks enforcement of an order which, inter alia, directs respondent Willow Maintenance, a taxicab company, to reinstate and make whole one Jose Torres, a driver discharged because he distributed union literature in the company’s waiting room. Earlier this term, in N. L. R. B. v. United Aircraft Corp., 324 F.2d 128 (2d Cir. 1963), we held that enforcement of a company rule which prohibited the distribution of union literature in non-work areas on non-work time was an unfair labor practice, in the absence of special circumstances necessitating such a rule for the maintenance of production or discipline. The major question raised in this proceeding was whether the waiting room was, in fact, a non-work area. Both the Labor Board and its Trial Examiner determined that it was, and we agree. Although 80 of the room’s 300 square feet are occupied by the company’s dispatcher and cashier, testimony before the Trial Examiner revealed that the remainder of the room is lined with lockers, contains an L-shaped bench, and is open to drivers as a lounging place when they are waiting to be dispatched. The drivers are permitted to read newspapers, watch television and converse freely. In the words of the company’s dispatcher, “they discuss everything. Sometimes they discuss about horses, they will discuss about fights. Among the cab drivers, we are the best philosophers, we discuss all conversations.” And, most significantly, at the very moment that Torres was distributing his union cards, “the television set was on, * * * some men were reading, * * * others were conversing [and] the room was far from crowded.” Under these circumstances, we find that the Board was entirely correct in concluding that the waiting-room was a “non-work” area. In Judge Clark’s words, “[w]e have long passed the point where the bundle of property rights can be used arbitrarily or capriciously to restrict a worker’s freedom of association or expression.” NLRB v. United Aircraft Corp., 324 F.2d at 131. Especially in light of the proviso to the Board’s order, which emphasizes that nothing contained therein “shall require Respondents to permit activity in the waiting room which disrupts the operation of the business,” we find that the company’s legitimate interests have been well protected, and we accordingly enforce those portions of the order which pertain to the distribution of union literature and Torres’ discharge. In addition, however, the Board found that the company had violated § 8 (a) (1) in briefly interrogating Torres about union activity at a time prior to the incident in the waiting-room, and accordingly ordered the company to cease and desist from any such interrogation in the future. Since we do not believe that the questioning at issue was either explicitly or implicitly coercive, we hold that this violation was not established, and we hence modify the order by deleting that portion which refers to the interRogation. See NLRB v. Montgomery Ward & Co., 192 F.2d 160 (2d Cir. 1951). The order is modified accordingly, and, as so modified, is enforced in open court. 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_initiate

G

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. William A. PEARSON, Appellant, v. Robert W. HEISER and Sandra Stamper, Appellees. Nos. 22399, 22399A. United States Court of Appeals Ninth Circuit. May 21, 1969. John C. McHose (argued) and David Brice Toy, of Lillick, McHose, Wheat, Adams & Charles, Los Angeles, Cal., for appellant. Winchester Cooley, III, (argued) of McCutchen, Black, Verleger & Shea, Los Angeles, Cal., for Heiser. Newton Kalman (argued) of Caidin, Bloomgarden & Kalman, Beverly Hills, Cal., for Stamper. Before BROWNING, ELY and CARTER, Circuit Judges. PER CURIAM: The trial court had before it petitions for exoneration or limitation of liability by Pearson and Heiser, owners of motor boats, pursuant to 46 U.S.C. § 185. On conflicting evidence the court found Pearson and Heiser were each negligent and that the collision leading to this action was proximately caused by the mutual fault of the two owners. The court also found on conflicting evidence that Pearson’s fault was not a minor one and the court refused to apply the major-minor fault admiralty rule. We cannot say the district court was clearly wrong in its factual determinations; and if they are valid there are no legal questions presented. We affirm. We have been invited to view two short motion pictures, one made by a naval architect, an expert witness for Pearson, and the other made by a marine surveyor, an expert witness for Heiser. Each depicts a speed boat run made under generally similar but not identical conditions. Each expert identified his picture and testified at length as to what he claims was depicted and as to his conclusions. Each was cross examined. There was testimony of supporting experts on both sides. It is conceded that the testimony is in conflict, particularly on the question of the degree of inclination achieved by the Heiser motor boat and the effect of the inclination on the visability of Heiser’s running lights. Testimony on behalf of Pearson was that the degree of inclination received by the Heiser boat was as much as 8.5° from the horizontal, and thus screened Heiser’s running lights. Testimony on behalf of Heiser was that the maximum inclination of Heiser’s lights were not obscured. Obviously viewing the films would only add to our view of the conflict in the evidence. The judgment is affirmed. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:

songer_numappel

2

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. 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. HOWARD et al. v. WEISSMANN et al. Circuit Court of Appeals, Seventh Circuit. January 26, 1929. Rehearing Denied April 18, 1929. No. 4019. Robt. N. Golding, of Chicago, Ill., for appellants. Wm. H. Thompson, of Indianapolis, Ind., for appellees. > Before ALSCHULER and ANDERSON, Circuit Judges, and GEIGER, District Judge. GEIGER, District Judge. This is an appeal from a decree awarding an injunction against1 the appellant typographical union and its officers restraining them from (1) enforcing certain amendments to the constitution which, if effective at all, abolish “Trade District Unions” (to be later described); (2) enforcing demands made upon a “Trade District Union” for the payment of fees and expenses incurred by the appellant typographical union in this lawsuit; (3) proceeding with attempts to further amend the constitution of the appellant union in particulars to be noted. It may be said, preliminarily, that the first of the foregoing is of dominant importance in the suit; that its consideration necessitates some extended reference to the facts appearing in the record, to ascertain whether the decree has a basis — in point of fact — requisite to enable the trial court to apply, favorably to plaintiffs’ claim, principles which deal with rights asserted to arise out of membership in voluntary organizations such as are before the court. Eurther, that, broadly spealdng — the applicable principles are really not seriously controverted by the parties-—the question is: Do the facts disclose a case for equitable intervention? The bill was originally filed by MeNichols, Weissmann, Carr, and others against the present appellants, the International Typographical Union and Charles P. Howard individually, and as president of said union, with whom were joined defendants Brown, Hew-son, Smith, and Hays, each in his individual capacity and, representatively, as an official of said union. The bill, alleging jurisdictional and also “class suit” facts, the official and membership relationship of the individual parties respectively to the defendant typographical union, characterized the latter as “an international organization of men and ■women engaged in the business of printing, and is composed of men and women who are engaged in two branches of the printing industry, to wit, printers and mailers”; and further, in substance, that it was organized more than 30 years ago, its membership being composed of printers and workers in “allied trades”; that all “allied” craftsmen have been eliminated from the union, except “mailers,” the membership now consisting of approximately 70,000 “printers,” and 3,000 “mailers.” The bill averred the good standing of plaintiffs as “mailer” members of the union, their long-continued contribution of dues, assessments, and the like, the union’s accumulation of a large fund and property, the interest therein of plaintiffs and other members similarly situated; the defendant Howard and printer members had determined to “eliminate” the mailer members from the union and to deprive them of their beneficial interest in the funds thus accumulated and from the enjoyment of other benefits incident to memb ership. This ob j eet or determination, so it was in substance averred, was to be accomplished through proposed amendments to the constitution of the union about to be submitted to a referendum vote of the membership. Such proposed amendments were set forth; and their validity was challenged because discriminatory, and their effectiveness to impair rights in accumulated property. In addition thereto, the bill specifically challenged the procedure adopted by the union officials, in that there was a failure and refusal to permit an “Executive Council” to act upon the proposition of submission of said amendments to a referendum vote — contrary to the fundamental law of the union. Upon a hearing before the District Court, this last-noted challenge was upheld'and a restraining decree then entered was reviewed and upheld by this court on September 24, 1927. McNichols et al. v. International Typographical Union, 21 F.(2d) 497. The reported decision suffices to show the narrow issue determined. The remission of the cause upon the affirmed decree obviously left questions respecting the effectiveness of proposed amendments, if and when adopted, undetermined either in trial or appellate court. On October 22, 1927, plaintiffs filed in the District Court a supplemental bill, which, reiterating the purpose and determination of the then defendants to eliminate complainants from the union and to deprive them of benefits in said organization, averred the taking of further steps toward its accomplishment since the original hearing in the District Court and during the pendency of the cause on appeal. Such steps are recited at length in the supplemental bill. Upon joinder of issue the case was tried, and the court awarded to complainants the decree now here for review. While, as has been observed, the dominant phase of the present decree deals with the restraint of enforcement of amendments to the constitution of the union, there is now no question respecting the regularity of procedure. It is believed that the case may be developed upon its facts by reference to the constitution of the appellant typographical union, in its particular provisions respecting the formation, and the powers of the other organizations now in existence and in relationship to each other and to the appellant typographical union; and in which, as well as in appellant union, the plaintiffs in this suit — appellees here — have membership; and out of which have arisen and now exist the rights which they assert cannot be withdrawn, destroyed, or substantially disparaged or impaired by “dissolution” or “abolition” of the organizations which have a relationship; also, so it is claimed, in which membership is thus conditioned. Assuming, as we may, that in the “printing” business employés may broadly be regarded as a craft, yet for many years here, as in most industries, classification of “allied” crafts within the industry has been recognized and acted upon; and while the appellant typographical union has asserted its jurisdiction to “include all branches of the printing and kindred trades other than those over which jurisdiction has been conceded by agreement,” its own present membership comprises “printers” and “mailers” as two of a considerable number of “allied crafts” of the industry. For present purposes, it suffices to note that the proofs deal with three organizations: (1) The appellant, International Typographical Union of America; (2) Mailers’ Trade District Union; and (3) local unions consisting of printers, or mailers, or, in some instances, both. Since January 1,1902, the constitution of the appellant typographical union has contained this article: “XIII. “Section 1. Any of the allied trades under the jurisdiction of this organization may form a Trade District Union. “Section 2. Such .Trade District Union shall have the following powers, privileges and rights, and as may be more specifically set forth in the By-Laws; “(a) To charter, establish and form unions of its craft. Charters to be procured from the International Typographical Union. “(b) To issue and control traveling cards to members working at its craft. “(c) To make all laws for the sole government of its craft. “(d) To decide all matters in dispute solely affecting members of its union. “(e) To elect officers of the Trade District Union, the President of which shall be a Vice-President of the International Typographical Union. “(£) To collect and forward to the Secretary-Treasurer of the International Typographical Union all per capita tax due from subordinate unions of its craft. “Section 3. Such powers, privileges and rights shall not work to repeal or affect the laws of the International Typographical Union regarding revenue, per capita tax, benefits, strikes and lockouts, the six-day law, and allied trades council laws.” What the precise situation was prior to the adoption of this article, i. e., with reference to “district” unions analogous to trade district unions, their powers, conditions of membership, or relationship to the appellant union, is not disclosed in the record. The “Trade District Union” whose dissolution is now sought by appellant, as will be noted, came into existence after the adoption of the foregoing article. But, a conception of the status of these different organizations, of membership therein respectively, of their spheres of activity in the “craft,” of the dignity of their relationship to each other, regardless of origin (whether by delegation or grant or by reservation), is disclosed by the witnesses at the trial; and it pertinently bears upon the fundamental question. The witness John W. White testified: “I live in Indianapolis, and am forty-two years old. I am now, and have been for the last twenty-eight years, which includes the apprenticeship period, a newspaper mailer. I am now, and have been for the last twenty years, continuously employed in the mailing department of the Indianapolis Star. I am now and for twenty-four years have been a member of the Mailers’ Trade District Union, and am now its Vice-President. I am also and have been for twenty-four years a member of the International Typographical Union. The Mailers’ Trade District Union has been organized twenty-five years, and when I came into membership I came into both of them at the samé time. My membership in the Mailers’ Trade District Union automatically made me a member of the International Typographical Union. I carry two membership cards, one in the International Typographical Union and one in the Mailers’ Trade District Union. I have a membership in the International Typographical Union and a distinct membership in the Mailers’ Trade District Union. The number of my local Mailers’ Union is No. 10, which was formed in August, 1902. I became a member in 1903. Article XIII of the constitution of the International Typographical Union has been the same from 1902 to 1926, inclusive. “The Mailers’ Trade District Union is an organization of, for and by mailers. They have no connection, nothing to do with anything, but the mailing business. We have an organization perfect within itself of an executive council, composed of the president, vice-president, secretary-treasurer, and we hold our conventions and adopt our laws. The Mailers’ Trade District Union at the present time is composed of approximately fifty-four Mailers’ Unions. Each local union has its officers, but there is only one Trade District Union. They hold their conventions and make their laws, which apply only to mailers and only govern the mailing trade, and they are the only provisions now in force or in view, and there is nothing else that covers the mailing business. The definition of the preamble of the Mailers’ Trade District Union constitution is accepted by both employers and mailers as the work defined in the mailing trade. There is absolutely no other-law or book of the Mailers’ Trade District Union that covers that. “The Mailers’ Trade District Union has an income of $3,750 every month, or $45,000 every year. This is collected by the mailers, spent by the mailers and for the mailers only. It does not go into the Typographical Union treasury. This money is spent for mailers alone in helping to organize unions, in helping them with scales, in helping them in any-kind of trouble they may be in. Each individual mailer pays into the Mailers’ Trade District Union $1.25 per month. Each individual also pays into the Typographical Union a capita tax of 70 cents a month, and the old age and mortuary funds of one per cent, of their total earnings. These amounts are paid into the International Typographical Union, and are separate and distinct from what is paid into the Mailers’ Trade District Union treasury. We pay that to our local union, which pays it in. It is essential that we pay that in order to belong to the Mailers’ Union. During the time the Mailers’ Trade District Union has been in existence about $300,000 has been raised from mailers alone to spend for the betterment of the mailers’ working-conditions, and that was used, among other things, for the organization of local unions. The International Typographical Union provides a strike benefit but it is not enough for men to live on, and we, in matters when it is necessary, supplement those strike benefits with money out of the treasury of the Mailers’ Trade District Union. “Mailers pay to the International Typographical Union the same percentage of dues as is paid by the printer members of the In-ternational Typographical Union. Printers pay no dues into the Mailers’ Union. This has been true from 1902 until the present time. The mailers have a fund of their own, which at this time is approximately $12,000. We have a national convention each year which has been held about three days before the International Typographical Union convention. The International Typographical Union divide their assets into the Home, and other assets, and I believe they have approximately five million dollars in the general treasury and the several benefit features, and three million dollars in the Home corporation at Colorado Springs, making total assets of around eight million dollars. The Home is a home for members of the International Typographical Union after they are disabled because of age or sickness. There are mortuary and pension fluids. During all the years of membership of the mailers in the International Typographical Union they have paid into each of the funds as long as they have been created. They have paid the same amount that the printers pay. I, personally, have paid per capita tax into the International Typographical Union for twenty-four years, and have paid into the other funds every year since they have been established. There have twice been extra ten per cent, assessments on mailer and printer members of the International Union, that is, ten per cent, of the wages. One occasion was the eight hour strike in 1906. The assessment was gradually reduced and finally eut off. I remember that the mailers paid in over $75,000 and didn’t draw out a cent. About 1921, during the forty-four hour strike, there was a ten per cent, assessment which was carried on for a year or two and gradually diminished until it was finally wiped out. Into that fund the mailers left a balance over what they drew out of something around $400,000. We have had actuaries work on the amount the mailers have paid into the International Typographical Union, and to the best of our knowledge the amount we paid in, over what we have drawn out in benefits and everything, approximates one million dollars.” The record contains the constitutions, the by-laws, or general laws both of the appellant typographical union and the Mailers’ Trade District Union; and discloses the latter’s relationship to local unions of mailer craftsmen. It shows the inter-relationship of these three, respectively, the degree to which any one may be subordinate, independent, or autonomous. The importance of these laws and regulations is conceived to reside in their effect to give to the several organizations and to concurrent membership therein, by persons circumstanced as are the appellees, a status or condition. And, as will be noted, if such status is intended and has been recognized as such, then none of the parties to this action should be heard to assert that attendant rights in no event may be found within the realm of judicial protection. Now a careful reading of these organic laws lends strong support to the claims made by the witness White in his efforts to picture the status and the relationship of these unions and their concurring membership to each other; and appellant Howard, the president of appellant union, in .the convention which was considering amendments to the constitution, addressed himself pertinently to the particular matter of the status or relationship of the appellant typographical union and the Mailers’ Trade District Union and their respective members. He said: “The only affiliation the mailers have is on the basis of the Trade District Union. No individual member of the Mailers’ Union other than as they apply to voting and beneficiary features is affiliated with the International Typographical Union. They collect dues from our members not as subordinate unions, but as Trade District Unions. They have their own president, their own Executive Council, and appeals go to the Executive Council of the Mailers’ Trade District Union and do not come to the Executive Council of the International Typographical Union.” •Again: “The constitutional provision is plain that neither local mailers’ unions nor individual members of mailers’ unions have the right of appeal to the Executive Council upon any question. For this reason it must be assumed they were representatives of the Mailers’ Trade District Union. Subordinate unions of mailers have no standing except as a part of the Mailers’ Trade District Union. Outside of their right to' vote for our officers and send delegates to our conventions, they have no connection with the International Union as local unions. Disputes are decided by their own Executive Council or by conventions of the Mailers’ Trade District Union and are not appealable to this convention because of the operation of the section of the constitution I have quoted to you. I say again if there were any doubt about a controversy of this kind being appealable, certainly under that provision of the constitution, nobody can hold that controversies involving members of a mailers’ union are appealable to the Executive Council of the International Typographical Union.” The complaint is directed specifically to the action of the appellant union in amending its constitution by striking out all of article XIII heretofore quoted, and portions of other articles, to effectuate the purpose — expressly declared in a resolution of submission to a vote — viz., “to dissolve (such) Trade District Unions and to prevent future organization or functioning of Trade District Unions by striking ont such provisions of the Constitution as authorize the organization of .Trade District Unions.” Respecting the effectiveness of the amendments to accomplish the result there can be no doubt. True, as suggested by appellants, a mailers’ trade district union might be organized and exist, but not within the contemplation of the hitherto relationship to the appellant union, nor, as it seems to us, in any sense which involves exercise of powers heretofore possessed by “mailers” who are identical members of the appellant union. It is hardly conceivable that “mailer” members of the appellant union, subject to its future absolute jurisdiction (if ■ it should assume to exercise it), e. g., to form unions of the “mailer” craft, “to make all laws for the sole government” of such “craft,” to decide all matters in dispute solely affecting members of the union — these are the powers which under Section 13 are possessed by the Mailers’ Trade District Union — could at the same time be subject to the exercise of these same powers by another union in no relationship to the appellant union. And the circumstance, if it is to be noted, that the power of the Mailers’ Trade District Union to “charter, establish and form unions of its craft” is coupled with the issuance or procurement of “charters” by or from the appellant typographical union, is of no relevancy in determining the quality or substantive character of powers which trade district unions thus possess under the article in question; nor does it support the right of the appellant union to destroy or disparage the status of the mailer members who accept the grant — really, a grant of substantial autonomy. The amendments now under consideration were inaugurated before a convention of the appellant union by resolutions which are referred to in this case as “proposition 120”; and appellees — so appellants quote from a brief filed — have stated the issue thus: “We make no claim that proposition 120 was not adopted in accordance with the prescribed form contained in the Constitution. What we do say is that the amendment is illegal and void and that inasmuch as it affects property rights, a Court of Equity may enjoin its enforcement. We concede that Courts are without authority to interfere with the purely internal affairs of voluntary unincorporated associations not affecting property, constitutional or other vested rights.” And appellants, apparently in acquiescence, comment: “Thus the question is one of fact — Does proposition 120 adversely affect any vested right?” Manifestly, it might prove fruitless or futile, in discussing this case, to take up seriatim so-called “rights” of members of any or all of these organizations with a view of determining whether singly or in the aggregate they are comprehended within the term “vested.” Probably all will agree that the right of participation or interest in a benefit or gratuity fund- — no matter how characterized — is susceptible of enforcement and protection. If the case disclosed merely an effort at regulation or legislation over such a subject-matter, which affected equally all membership and without attempting to withdraw, “dissolve,” or interdict other “rights” for a long time possessed and exercised under constitutional recognition, and having a clear relationship to such “property” benefits, it might readily he concluded that the attempted act withstood the test of reasonableness in that no substantial impairment resulted. But when, as here, it clearly appears that from earliest times what may be called a “craft autonomy” not only attended, but in a true sense conditioned membership in the trade district union, in local mailers’ unions and in the appellant union, the court, in answering the question of fact, need not ascribe to that phase of the matter less importance or less dignity than the parties ascribe to it. Plainly, the broad “jurisdiction” asserted by appellant is futile against a “craft” (such as mailers) except as assent is obtained. And when, as here shown, power characterized in some instances as “sole” by the membership of a craft is possessed (either by grant, cession, or reservation), it qualifies the asserted broad “jurisdiction.” It becomes a condition or a consideration of the relationship whether the organization be viewed as affiliated, federated, or otherwise. The recognition of long-continued independence of right to act with reference to matters which otherwise might have been vested and exercised within the power of another body is persuasive in establishing the value and importance of the right. Therefore, as has been observed, the court need not determine the value of this right and decree it to be “vested” in the sense of money or tangible property. It suffices that the parties, the appellant union on the one hand and its mailer craft members on the other, have deemed it advisable to comprehend it in a constitutional stipulation unquestionably designed to assure its possession, and exercise in and by the latter through the medium of a trade district union. The latter, in its relationship to “mailers” who may be members both of local and appellant unions, has been and is the means and condition of effectuating a substantial autonomy, which again is the basis upon which mailers have discharged obligations of membership in each of the unions. And we conceive it to he no answer to appellees’ contentions respecting the character and value of this autonomy to suggest that appellant may accord an unquestionable equivalent. As we interpret the appellant’s constitution, the declaration that its “jurisdiction shall include all branches of the printing and kindred trades,” in the very nature of things, cannot establish jurisdiction, cannot bring recognition of power by the members of the trade or any craft therein, without assent or some act of membership. Rather is this a mere statement of field of operations; and this is emphasized by the express limitation of description, viz., “other than those over which jurisdiction has been canceled (conceded) by agreement.” Plainly, the constitution of appellant union is aimed to provide not only means for acquisition of jurisdiction over “allied” crafts within the industry,-' but limitations on power if and when any jurisdiction (through assent of members) is obtained. We believe that to be the intendment and effect of article XIII, that is, it establishes a well-defined autonomy of craftsmen. When, therefore, the autonomous powers are so possessed and enjoyed, it makes little difference whether they came by grant or by reservation, because — as against appellant — they constitute the basis of assent to what in effect is a limited jurisdiction. It should not be said that there was also an assent to a larger jurisdiction or that the 25 years’ recognition of substantial autonomy on the faith of which most of the present mailers’ unions came into being was permissive only; that it was at the peril of having the limited assent to appellant union’s “jurisdiction” compulsorily enlarged. The establishment of the Mailers’ Trade District Union under article XIII, and the possession of the powers comprehended within said article, and the formation of unions on the faith thereof, seem never to have been regarded as merely provisional, so that continued existence of the organizations formed and the enjoyment of the rights possessed thereunder might depend wholly upon majorities of another‘craft, in this ease “printers”; or that assent or nonassent of the particular craft, “mailers,” was of no moment. The appellees are in good position to claim rightfully that the conditions were in truth appurtenant to membership and not subject to be withdrawn at the will of those who did not and do not, as an allied craft, possess, or at least independently exercise, the rights and powers comprehended within that article. In other words, the autonomous possession and exercise of rights and powers during a period of 25 years, supposedly, at least, under constitutional security, by a particular class of' the membership, can hardly be characterized as a purely internal affair of a voluntary association. And when, as it appears, the enjoyment of the rights has been attended by financial contributions in each of the two organizations which have resulted in an accumulation required to be held for present and-future benefit of the contributors, the-“rights” may, without difficulty, respond to-the definitions, “vested” or “property.” We are satisfied that the District Court was justified in giving an affirmative answer-to the question of fact which the ease presents, and thereby furnishing a basis for restraining enforcement of the amendments. The other aspects of the decree need-brief consideration only. Upon affirmanceof the interlocutory decree, the appellant union, feeling aggrieved at appellees’ resort to-judicial process, and avowing that the controversy was within its own power of determination, formally resolved: “That the Mailers’ Trade District Union, be and is hereby ordered to pay to the secretary-treasurer of the International Typographical Union such sum of money as is necessary to reimburse the International Typographical Union for all attorneys’ fees and: costs for which the International Typographical Union is now or may hereafter become-liable in connection with this action;” and “That upon failure to reimburse the International Typographical Union the Mailers’ Trade District Union shall be declared delinquent as provided in section 1, article X, constitution;” and “That the actions of the representatives-of the Mailers’ Trade District Union in appealing to the courts were unjustified and unnecessary, and the actions of Vice-Presidents-Brown, Hewson, Smith and Secretary-Treasurer Hays are hereby declared to have been, illegal, indefensible and in violation of the. constitution in attempting to interfere with, the right of subordinate unions to initiate amendments to the constitution.” The constitutional provision (seetion 1, article X) prescribes suspension of charter for failure or refusal of a subordinate union to pay a per capita tax and “other moneys.” Whether the appellant union has any power to suspend the Mailers’ Trade District Union for delinquency, or whether delinquency could arise out of failure to meet the particular demand here made, need not be considered in the light of pure questions of power. It suffices to deal with the demand and the express or implied threat of consequences respecting merit as judged by standards of ordinary fairness. If we assume, as the trial court was doubtless obliged to assume — because the appellant in substance so asserted —that the demand was made and the threatened consequences were to be visited upon the Mailers’ Trade District Union, as an adversary party in pending litigation, it was, relevant not only to the subject-matter of the litigation, but more particularly to conduct by one party toward another. Upon entirely elementary principles, the appellees, being the representatives of the Mailers’ Trade District Union, had the right to appeal to the court for protection against an attempt well calculated to embarrass them as a party in pending litigation. At the time of the demand the result of the suit had vindicated its commencement by the appellees, and such result serves as a legal response to the attitude of appellant and its officers respecting resort to judicial power; and it serves not only as an adequate basis for declining to meet the demand, but for the additional restraint provided in the decree. The third aspect of the decree deals with the so-called “Detroit” proposed amendments to the appellant union’s organic law. They are drawn upon the hypothesis of the possible failure of the amendments which aim to abolish the Mailers’ Trade District Union. Counsel for the appellants assert that the question becomes moot if the decree which deals with proposition 120 is reversed, but that it “will become important if, and only if, this court should affirm that part of the final decree which enjoined the enforcement of proposition 120. In that event the appellants will desire to reinitiate the Detroit amendment and the final decree should be modified to permit their so doing.” Under the 1926 laws of the appellant union, three, of four, executive officers were elected by votes of both printers and mailers, and the fourth by votes of the mailers only. Local mailers’ unions were entitled to delegates to the convention of the appellant union, their number varying from one to four, according to the size of the union. The proposed amendments limited the right to vote for the three of the executive officers above noted, to printers only, the mailers retaining their exclusive right to vote for the fourth. The local mailers unions are deprived of the right to delegates to the convention of the appellant union, but instead, the Mailers’ Trade District Union was given the right to send four delegates. This gave the latter organization a status as a subordinate local union. We assume that by comprehending these proposed amendments within the scope of the decree, the trial court considered them in the light of the evidence as it might bear upon their validity, regardless of the conclusion which the court might reach upon the other aspeet of the ease. That involved a consideration of entirely analogous matters to determine an analogous question or issue. On each aspect the relationship and the status of the different organizations bore pertinently upon the nature of the amendments in their effect upon rights “vested” or “property.” We feel that the evidence amply sustains the contention that in view of the relationship of these different organizations and their members, the right to vote should in no event be held to be unsubstantial and not appertaining to individual membership in local unions; and upon this view the proposed amendments are plainly unreasonable and discriminatory. The decree of the District Court is affirmed. Question: What is the total number of appellants in the case? Answer with a number. Answer:

sc_issue_10

M

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. UNITED STATES et al. v. TEXAS et al. No. 91-1729. Argued March 1, 1993 Decided April 5, 1993 Rehnquist, C. J., delivered the opinion of the Court, in which White, Blackmun, O’ConnoR, Scalia, Kennedy, SouteR, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 539. Thomas G. Hungar argued the cause for petitioners. With him on the briefs were Solicitor General Starr, Acting Solicitor General Bryson, Assistant Attorney General Ger-son, Deputy Solicitor General Roberts, William Ranter, and Bruce G. Forrest. James C. Todd argued the cause for respondents. With him on the brief were Dan Morales, Attorney General of Texas, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, Edwin N. Horne and Christopher Johnsen, Assistant Attorneys General, and Jorge Vega. Chief Justice Rehnquist delivered the opinion of the Court. In this case we decide the question left open in West Virginia v. United States, 479 U. S. 305, 312-313, n. 5 (1987): whether Congress intended the Debt Collection Act of 1982 to abrogate the United States’ federal common-law right to collect prejudgment interest on debts owed to it by the States. We hold that it did not. Texas incurred the instant debts as a result of participation in the Food Stamp Program, 78 Stat. 703, as amended, 7 U. S. C. §2011 et seq. Under that program, the Food and Nutrition Service (FNS) of the United States Department of Agriculture provides food stamp coupons to participating States, and the States then distribute the coupons to qualified individuals and households. §§ 2013(a), 2014. Regulations implementing the Food Stamp Program permit participating States to distribute the coupons either over the counter or through the mail. 7 CFR § 274.3(a) (1986); 7 CFR § 274.3(a)(3) (1992). While mail issuance generally is cheaper and more convenient, States that choose to use that distribution method must reimburse the Federal Government for a portion of the replacement cost for any lost or stolen coupons. 7 U. S. C. § 2016(f). Specifically, a State must reimburse the Government for all such losses above a “tolerance level” set by regulation. Texas, through its Department of Human Services, contractually bound itself to comply with all federal regulations governing the program. See 7 CFR §§ 272.2(a)(2), 272.2(b)(1) (1986). Texas incurred substantial mail issuance losses, in part because United States Postal employees stole food stamps that had been mailed by the Texas Department of Human Services to qualified households. Because those losses exceeded the applicable tolerance level, Texas was bound to reimburse the Federal Government for the excess losses. The FNS notified Texas of its debt in the amount of $412,385, and informed it that prejudgment interest would begin to accrue on the balance unless payment was made within 30 days. Texas sought administrative relief in the form of a waiver of liability. After the Food Stamp Appeals Board denied the requested relief, Texas sued the United States in the United States District Court for the Western District of Texas. In addition to challenging the Appeals Board’s refusal to grant a waiver of liability, Texas argued that the Debt Collection Act precluded the imposition of prejudgment interest on any amount it owed the Federal Government. The District Court granted summary judgment in favor of the United States on both issues. With respect to the prejudgment interest issue, the District Court adopted the approach taken by the Court of Appeals for the Tenth Circuit in Gallegos v. Lyng, 891 F. 2d 788 (1989), which held that the Government’s common-law right to prejudgment interest on debts owed to it by the States survived enactment of the Debt Collection Act. See Civ. Action Nos. A-87-CA-774, A-88-CA-820 (WD Tex., Nov. 13, 1990). The Court of Appeals for the Fifth Circuit affirmed the District Court’s decision concerning waiver, but reversed its decision concerning pre judgment interest. 951 F. 2d 645 (1992). Relying on the language of the Debt Collection Act, the court held that the “Act is not silent concerning whether or not state obligations should be subject to pre judgment interest. The Act specifically excludes states from the payment of interest.” Id., at 651. Because Congress did not impose interest through the specific provisions of the Food Stamp Act “diming the time period relevant in this case, the Courts are not free to ‘supplement’ Congress’ enactment.” Ibid, (quoting Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978)). The court rejected the argument that abrogation is inconsistent with the Act’s purpose of enhancing the Government’s ability to collect its debts. In the court’s view, the Federal Government could enforce its claims for unpaid mail issuance losses through the offset procedures built into the Food Stamp Act. Because of a split among the Courts of Appeals on this question, we granted certiorari, 506 U. S. 813 (1992), and now reverse. It is a “longstanding rule that parties owing debts to the Federal Government must pay prejudgment interest where the underlying claim is a contractual obligation to pay money.” West Virginia v. United States, 479 U. S., at 310 (citing Royal Indemnity Co. v. United States, 313 U. S. 289, 295-297 (1941)). In Board of Comm’rs of Jackson County v. United States, 308 U. S. 343 (1939), we held that this common-law right extends to debts owed by state and local governments, but cautioned that a federal court considering the question in an individual case should weigh the federal and state interests involved. We reaffirmed Board of Comm’rs in West Virginia, supra, and upheld the assessment of prejudgment interest on a debt owed by West Virginia to the United States. Just as longstanding is the principle that “[sjtatutes which invade the common law ... are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.” Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952); Astoria Federal Savings & Loan Assn. v. Solimino, 501 U. S. 104, 108 (1991). In such cases, Congress does not write upon a clean slate. Astoria, supra, at 108. In order to abrogate a common-law principle, the statute must “speak directly” to the question addressed by the common law. Mobil Oil Corp. v. Higginbotham, supra, at 625; Milwaukee v. Illinois, 451 U. S. 304, 315 (1981). Texas argues that this presumption favoring retention of existing law is appropriate only with respect to state common law or federal maritime law. Although a different standard applies when analyzing the effect of federal legislation on state law, id., at 316-317, there is no support in our cases for the proposition that the presumption has no application to federal common law, or for a distinction between general federal common law and federal maritime law in this regard. We agree with Texas that Congress need not “affirmatively proscribe” the common-law doctrine at issue. Brief for Respondents 3-4; see Milwaukee, supra, at 315. But as we stated in Astoria, supra, “courts may take it as a given that Congress has legislated with an expectation that the [common law] principle will apply except ‘when a statutory purpose to the contrary is evident.'” 501 U. S., at 108 (quoting Isbrandtsen, supra, at 783). The Debt Collection Act does not speak directly to the Federal Government’s right to collect prejudgment interest on debts owed to it by the States. The Act states that “[t]he head of an executive or legislative agency shall charge a minimum annual rate of interest on an outstanding debt on a United States Government claim owed by a person . . . .” 31 U. S. C. § 3717(a)(1) (emphasis added). Section 3701, in turn, provides that the term “ ‘person’ does not include an agency of the United States Government, of a State government, or of a unit of general local government.” §3701(c). Texas argues that this exemption clearly establishes Congress’ intent to relieve the States of their common-law obligation to pay prejudgment interest. We disagree. The only obligation from which § 3701 exempts the States is the obligation to pay prejudgment interest in accordance with the mandatory provisions of the Act. These impose a stringent minimum interest requirement upon private persons owing money to the Federal Government. The statute is silent as to the obligation of the States to pay prejudgment interest on such debts. We agree with the Solicitor General that “Congress’s mere refusal to legislate with respect to the prejudgment-interest obligations of state and local governments falls far short of an expression of legislative intent to supplant the existing common law in that area.” Brief for Petitioners 16. Our conclusion that the States remain subject to common-law prejudgment interest liability is supported by the fact that the Debt Collection Act is more onerous than the common law. Section 3717(a) requires federal agencies to collect prejudgment interest against persons and specifies the interest rate. The duty to pay prejudgment interest under the common law, however, is by no means automatic. Before imposing prejudgment interest, the courts must weigh the competing federal and state interests. West Virginia, 479 U. S., at 309-311; Board of Comm’rs, 308 U. S., at 350. And instead of imposing a preestablished rate of interest, the district courts retain discretion to choose the appropriate rate in a given case. Unlike the common law, § 3717 also imposes processing fees and penalty charges, 31 U. S. C. §§ 3717(e)(1), (e)(2). Given these differences, it is logical to conclude that the Act was intended to reach only one subset of potential debtors — persons—and to leave the other subset alone. It is reasonable to apply more stringent requirements to debts owed by private persons and to keep the more flexible common law in place for debts owed by state and local governments. The evident purpose of the Debt Collection Act reinforces our reading of the plain language. The Act was designed “[t]o increase the efficiency of Government-wide efforts to collect debts owed the United States and to provide additional procedures for the collection of debts owed the United States.” 96 Stat. 1749; S. Rep. No. 97-378, p. 2 (1982) (the Act responded to “increasing concern .. . expressed in Congress and elsewhere over the increasing backlog of unpaid debts owed the federal government”). This suggests that Congress passed the Act in order to strengthen the Government’s hand in collecting its debts. Yet under the reading proposed by Texas and the Court of Appeals, the Act would have the anomalous effect of placing delinquent States in a position where they had less incentive to pay their debts to the Federal Government than they had prior to its passage. The Court of Appeals reasoned that the States would not have an incentive to delay payment of their debts because the Food Stamp Act makes state agencies liable for actual losses caused by coupon shortages or unauthorized issuances, and permits the Federal Government to recover these debts through an administrative offset procedure. 951 F. 2d, at 650. But the Debt Collection Act applies to all federal agencies, not just the FNS. Thus, the existence of a mechanism in the Food Stamp Act allowing the FNS to collect its debts does nothing to encourage prompt payment of debts govern-mentwide. That the FNS may have already possessed adequate sanctions to compel payment is not a reason to conclude that the generic language in the Debt Collection Act was meant to abrogate the existing common-law obligation of the States generally. Texas concedes that Congress intended to enhance the Government’s debt collection efforts by passing the Act. It argues, however, that Congress was concerned primarily with debts owed by private persons. Accordingly, runs the argument, Congress meant to relieve the States of their duty to pay interest because the States were not the root of the debt collection problem. Part of this argument persuades; Congress in the Act tightened the screws, so to speak, on the prejudgment interest obligations of private debtors to the Government, and not on the States. It may be inferred from this fact that the former were the root of the Government’s debt collection problems which inspired the Act. But it does not at all follow that because Congress did not tighten the screws on the States, it therefore intended that the screws be entirely removed. The more logical conclusion is that it left the screws in place, untightened. As a last-ditch argument, Texas contends that its liability for losses in the mail is not a contractual debt for which it owes prejudgment interest, but rather a penalty unilaterally imposed by Congress. See Rodgers v. United States, 332 U. S. 371, 374-376 (1947) (penalties are not normally subject to prejudgment interest). This argument fails because the obligation of Texas to reimburse the Government for a portion of the stamps lost in the mail is quite different from that involved in Rodgers. There the penalties in question were unilaterally imposed by the Agricultural Adjustment Act on farmers who exceeded their production quotas; there was no suggestion that the farmers ever consented to such penalties. Here, on the other hand, Texas signed a Federal/State Agreement, the express terms of which bound the State to act in accordance with the implementing regulations. 7 CFR § 272.2(a)(2) (1986); see also n. 2, supra. Thus, 7 CFR § 274.3(c)(4) (1986), which imposed liability for mail issuance losses above a specified tolerance level, was incorporated into Texas’ Federal/State Agreement. The requirement that the States reimburse the Federal Government for a certain portion of mail issuance losses is not a penalty, but a contractual obligation which the State assumed. For these reasons, we hold that the Debt Collection Act left in place the federal common law governing the obligation of the States to pay prejudgment interest on debts owed to the Federal Government. The judgment of the Court of Appeals to the contrary is accordingly Reversed. The regulatory tolerance level in place for the mail issuance losses in this case was 0.5% of each reporting area’s total mail issuances for each calendar quarter. 7 CFR § 274.3(c)(4)(i) (1986). Title 7 CFR § 272.2(a)(2) (1992) provides in pertinent part: “The basic components of the State Plan of Operation are the Federal/ State Agreement, the Budget Projection Statement, and the Program Activity Statement.... The Federal/State Agreement is the legal agreement between the State and the Department of Agriculture. This Agreement is the means by which the State elects to operate the Food Stamp Program and to administer the program in accordance with the Food Stamp Act of 1977, as amended, regulations issued pursuant to the Act and the FNS-approved State Plan of Operations.” Subsection (b)(1) sets out the exact wording of the preprinted Federal/ State Agreement. The provisions relevant to this dispute are as follows: “The State of — and the Food and Nutrition Service (FNS), U. S. Department of Agriculture (USDA), hereby agree to act in accordance with the provisions of the Food Stamp Act of 1977, as amended, implementing regulations and the FNS-approved State Plan of Operation. The State and FNS (USDA) further agree to fully comply with any changes in Federal law and regulations. This agreement may be modified with the mutual written consent of both parties. “The State agrees to: 1. Administer the program in accordance with the provisions contained in the Food Stamp Act of 1977, as amended, and in the manner prescribed by regulations issued pursuant to the Act; and to implement the FNS-approved State Plan of Operation.” 7 CFR § 272.2(b)(1) (1992)'. The Tenth Circuit holds that the Debt Collection Act of 1982 did not abrogate the Federal Government’s common-law right to collect prejudgment interest against the States. Gallegos v. Lyng, 891 F. 2d 788 (1989). The Second, Third, and Eighth Circuits all hold to the contrary. See Perales v. United States, 751 F. 2d 96 (CA2 1984) (per curiam); Pennsylvania Dept. of Public Welfare v. United States, 781 F. 2d 334 (CA3 1986); Arkansas by Scott v. Block, 825 F. 2d 1254 (CA8 1987). Both Texas and the Court of Appeals rely on Congress’ authority to impose interest obligations on the States through specific statutes, such as the Medicaid Act, 42 U. S. C. § 1396b(d)(5), and the Social Security Act, 42 U. S. C. § 418(j) (1982 ed.), to support the proposition that the Debt Collection Act extinguished the Federal Government’s common-law right to collect prejudgment interest. Both statutes, however, codified and made mandatory the common-law right to collect prejudgment interest at a specified interest rate. Like the Debt Collection Act, these statutes changed the common law. Congress’ obvious desire to enhance the common law in specific, well-defined situations does not signal its desire to extinguish the common law in other situations. Texas also relies on the recent amendment to 7 U. S. C. § 2022 adding a provision requiring prejudgment interest on specific obligations arising under the Food Stamp Act of 1977. Pub. L. 100-435, § 602, 102 Stat. 1674 (1988). But “subsequent legislative history is a ‘hazardous basis for inferring the intent of an earlier’ Congress.” Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 650 (1990) (quoting United States v. Price, 361 U. S. 304, 313 (I960)). Texas’ argument also fails because, like the Medicaid Act and the Social Security Act provisions, the Food Stamp Act of 1977 did not merely codify the common law without change. Rather, it contains a mandatory provision requiring prejudgment interest at a specified rate. The interest rate required under § 3717 is “the average investment rate for the Treasury tax and loan accounts for the 12-month period ending on September 30 of each year, rounded to the nearest whole percentage point.” 31 U. S. C. § 3717(a)(1). Both Texas and the Court of Appeals rely upon our decision in Penn-hurst State School and Hospital v. Halderman, 451 U. S. 1 (1981), for the proposition that the Federal Government may not collect prejudgment interest because neither the Debt Collection Act nor the Food Stamp Act expressly require prejudgment interest. This reliance is misplaced. In Pennhurst, we held that in order to impose conditions on the receipt of federal funds, Congress must speak unambiguously. Id., at 17. This makes sense because the States cannot voluntarily and knowingly agree to a condition that is not clearly expressed. Ibid. Because the duty to pay prejudgment interest on debts owed to the United States existed long before either the Food Stamp Program or the Debt Collection Act was created, the rule in Pennhurst does not apply. See Bell v. New Jersey, 461 U. S. 773, 790, n. 17 (1983). Question: What is the issue of the decision? A. federal-state ownership dispute (cf. Submerged Lands Act) B. federal pre-emption of state court jurisdiction C. federal pre-emption of state legislation or regulation. cf. state regulation of business. rarely involves union activity. Does not involve constitutional interpretation unless the Court says it does. D. Submerged Lands Act (cf. federal-state ownership dispute) E. national supremacy: commodities F. national supremacy: intergovernmental tax immunity G. national supremacy: marital and family relationships and property, including obligation of child support H. national supremacy: natural resources (cf. natural resources - environmental protection) I. national supremacy: pollution, air or water (cf. natural resources - environmental protection) J. national supremacy: public utilities (cf. federal public utilities regulation) K. national supremacy: state tax (cf. state tax) L. national supremacy: miscellaneous M. miscellaneous federalism Answer:

songer_treat

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. Glenn Beverly REED, Appellant, v. UNITED STATES of America, Appellee. No. 72-1193. United States Court of Appeals, Eighth Circuit. Submitted June 16, 1972. Decided June 22, 1972. Glenn Beverly Reed, pro se. Allen L. Donielson, U. S. Atty., Des Moines, Iowa, for appellee. Before MATTHES, Chief Judge, ROSS, Circuit Judge, and URBOM, District Judge. Chief Judge, District of Nebraska, sitting by designation. PER CURIAM. Glenn Beverly Reed stands convicted of aggravated bank robbery. See United States v. Reed, 446 F.2d 1226 (8th Cir. 1971). He is serving his sentence in the United States Penitentiary at Fort Leavenworth, Kansas. Reed is again here, this time on his appeal from the order of the district court denying his 'petition to vacate the judgment and sentence under 28 U.S.C. § 2255. Reed’s pro se petition is premised on the claimed denial of a public trial guaranteed by the Sixth Amendment to the United States Constitution. He alleged that his six daughters were not permitted in the courtroom during his trial, but were required to remain in a designated room, separate and apart from the courtroom. The district court did not hold an evi-dentiary hearing but held that even if appellant’s assertion was based on fact, the absence or exclusion of the children from the courtroom did not deprive Reed of a public trial since the trial was otherwise open to and attended by the public. We affirm. Although not of decisive importance, we cannot fail to observe that Reed, represented by an able and experienced lawyer during the trial and on appeal from the judgment of conviction, made no objection to the exclusion of the children either during the trial or on appeal. Certainly, Reed was aware during the trial of the incident he now seizes upon for the purpose of having his judgment and sentence vacated in this collateral proceeding. In any event, we find no support in any caselaw for the claim that Reed was deprived of his constitutional right to a public trial merely because his children were not permitted in the courtroom. United States ex rel. Mayberry v. Yeager, 321 F.Supp. 199 (D.N.J.1971), involved a similar factual situation. In considering this issue, Judge Cohen aptly observed: “[t]he decisive factor is whether the public was excluded. * * * The only exclusion was of the three children; aged 5, 6 years and 15 months.” 321 F.Supp. at 204 (citation omitted). Analogous in principle are United States v. Kobli, 172 F.2d 919 (3rd Cir. 1949); Davis v. United States, 247 F. 394 (8th Cir. 1917). We are convinced that Reed’s claim is lacking in substance and that the district court properly denied him relief. Affirmed. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:

songer_treat

D

What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. Robert L. TYSON, Plaintiff-Appellant, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 710 PENSION FUND, Defendant-Appellee. No. 86-1859. United States Court of Appeals, Seventh Circuit. Argued Dec. 8, 1986. Decided Feb. 12, 1987. Stephen B. Horwitz, Burns, Sugarman & Orlove, Chicago, 111., for plaintiff-appellant. Stephen Feinberg, Asher, Gittler & Greenfield, Ltd., Chicago, 111., for defendant-appellee. Before CUMMINGS and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge. POSNER, Circuit Judge. This ERISA suit against a union pension fund seeks benefits under a pension plan. See 29 U.S.C. § 1132(a)(1)(B). The plaintiff, Robert Tyson, is a former truck driver for Charles Levy & Co. He claims to be entitled to a disability pension under the pension plan established by the collective bargaining agreement between his union (a teamsters local) and Levy. The district court granted summary judgment for the pension fund on the ground that awarding the pension would violate the Taft-Hartley Act. On February 6, 1981, Tyson suffered a totally and permanently disabling injury in an auto accident. The pension plan entitles an employee who becomes totally and permanently disabled to a disability pension, beginning immediately, if he has worked either for 15 complete years or for 14 complete years plus a total of 35 weeks in the first and last year that he was employed. Otherwise he must wait till he reaches age 65 to realize any vested pension rights. Tyson had worked 14 complete years plus 18 weeks his first year and he therefore needed 17 weeks in his last year, 1981, to qualify for the pension. Although disabled after working only 6 weeks in 1981, he was credited for that year with an additional 8 weeks of accrued vacation and disability pay (the collective bargaining agreement requires the employer to pay the employee for 4 weeks after a disabling injury), making a total of 32 weeks in his first and last years (18 + 6 + 8) — which was 3 weeks short. In January 1982, almost a year after Tyson had stopped working for Levy, Levy paid him 4 weeks of additional wages in recognition of his long years of service for Levy and the fact that his employment had been cut short by the accident. Tyson wants to add those 4 weeks to his other 1981 credits. If he succeeds, he will be entitled to the disability pension. The district court thought that the addition of the 4 weeks to Tyson’s 1981 credits was blocked by section 302 of the Taft-Hartley Act, 29 U.S.C. § 186, which makes it unlawful for an employer to pay a union or other representative of its employees — which the pension fund is conceded to be. There is an exception for union pension and welfare funds but it is subject to various limitations, of which the one pertinent here is that “the detailed basis on which such payments are to be made [by the employer to the fund] is specified in a written agreement with the employer.” 29 U.S.C. § 186(c)(5)(B). The district judge thought this proviso not satisfied here. En route to this conclusion he expressed skepticism about most of the fund’s contractual arguments, but the focus of his decision was the fund’s statutory ground, and we regard the contractual issues as still open; Tyson conceded as much at the oral argument of the appeal. Article 29 of the collective bargaining agreement, captioned “Pension Plan,” requires the employer to contribute to the union’s pension fund a fixed amount per week for each employee covered by the agreement who has been on the employer’s payroll for at least 30 days. It also authorizes the making of “appropriate trust agreements necessary for the administration of such fund.” Levy never made a contribution for the additional 4 weeks that Tyson wants credited to 1981, but the fund admits it would have refused to accept it, on the ground that accepting it would violate the statute; and the parties appear to assume that if the fund would accept the contribution, Levy would make it. The fund’s position (and hence the district court’s decision) is correct if “the detailed basis” for such a contribution is not “specified in a written agreement with the employer.” It is not specified in the collective bargaining agreement itself. But section 1.25 of the trust agreement that sets forth the details of administration provides: Each Employee will be credited with an Hour of Work for: (a) Each hour for which an Employee is paid, or entitled to payment by an Employer for duties performed____ (b) Each hour, up to a maximum of 501 hours, for which an Employee is directly or indirectly paid or entitled to payment by the Employer for reasons (such as vacation, holiday, illness, incapacity, including disability, layoff, jury duty, military duty or leave of absence) other than the performance of duties (irrespective of whether the employment relationship has terminated)____ This section makes clear that an employee such as Tyson is entitled to pension credit for certain hours that he does not actually work, even if, as here, he is paid for those hours after he has ceased to be employed. If the 4 weeks for which he was paid in 1982 are added to the 8 weeks for which he received vacation and disability pay in 1981 and which the fund does not contest, the total (12 weeks = 480 hours) is below the 501-hour ceiling. The pension fund argues that section 1.25 was not meant to embrace “gifts,” but there are two answers to this. The first is that the provision does not in terms exclude gifts; at least the words do not compel such a reading. The expression “for reasons ... other than the performance of duties” does not appear to require nonaltruistic “reasons”; the reasons listed between the parentheses are illustrative rather than exhaustive. Furthermore, to describe the 1982 payment to Tyson as a “gift” is surely a mistake. The world of employee compensation does not divide neatly into legally required payments on the one hand and gifts on the other. A bonus, for example, is neither; nor is severance pay; nor — what indeed is a form of severance pay — is a payment made in recognition of long years of work abruptly cut off by a tragic accident. Many of the mutual understandings on which the effective functioning of labor markets depends are not reduced to legally enforceable commitments, because the parties don’t want the uncertainty and expense of a lawsuit if they have a disagreement. See Epstein, In Defense of the Contract at Will, 51 U.Chi.L.Rev. 947 (1984). (As a matter of fact, employment at will remains the dominant form of employment relationship in this country.) Nevertheless those nonbinding mutual understandings are commercial rather than altruistic. It is true that when as in this case the employment relationship is defined by a collective bargaining agreement, payments to workers of compensation in excess of what the agreement specifies may, by undermining the union’s status as exclusive bargaining representative of the workers, violate the National Labor Relations Act. See e.g., NLRB v. Everbrite Electric Signs, Inc., 562 F.2d 405 (7th Cir.1977) (per curiam). But there is no suggestion that Levy’s payment of an additional 4 weeks’ wages to Tyson after he had ceased being an employee of Levy’s raises any problems under the agreement and hence under the Act. Indeed, the fact that “gifts” by an employer to his unionized employees could raise problems under the Act is one more piece of evidence that the payment Levy made to Tyson in 1982 is not properly described as a gift. A better argument for the pension fund is that since Levy had already paid Tyson the 4 weeks disability pay that the collective bargaining agreement required Levy to pay him, the additional payment in 1982 could not have been by reason of disability and therefore cannot be fitted within section 1.25. But the section is not clearly limited to payments made under legal obligation. The words “entitled to payment” might have that force; that is, they could be intended to protect the employee in the event that the employer, though contractually obligated to pay him, fails to do so. But they need not be so read; the disjunctive treatment of “paid” and “entitled to be paid” could signify that the employee was entitled to credit for money actually paid him whether or not legally due him, plus money legally due him whether or not actually paid him. The payment made in 1982 was certainly made by reason of Tyson’s disability, perhaps in conjunction with his long years of service — a factor not excluded by the section, though not specifically listed in it. The fund’s best argument is that to allow a gratuitous payment to be credited would enable an employer to transfer great wealth, at small cost to itself, from the fund to a former employee. The contribution that Levy would need to make to the pension fund (if the fund would accept it) on the payment in 1982 that put Tyson over the hump is only about $200; if this payment entitled him to a pension it would mean that for a trivial outlay Levy had bought Tyson an annuity of $375 a month for the 12 years until his regular pension vests at age 65. The present value of such an annuity is on the order of $30,000. In effect, at the discretion of the employer, a 14 years and 35 weeks vesting period is lowered to 14 years and 31 weeks. (It can’t be shortened much beyond this, however, because of the 501-hour limitation in section 1.25.) These arguments are respectable and may, singly or together, in the end demonstrate that as a matter of contract interpretation Tyson is not entitled to the disability pension. (He would not be completely out in the cold; he is receiving a social security disability pension.) But they do not show that there is no “detailed basis” for a contribution by Levy, and hence that the statute bars a pension for Tyson. The detailed basis is section 1.25. The existence of interpretive uncertainty does not bring section 302 of the Taft-Hartley Act into play. Section 302 was primarily designed to prevent employers from bribing union officers and union officers from extorting money from employers. Arroyo v. United States, 359 U.S. 419, 425-26, 79 S.Ct. 864, 868, 3 L.Ed.2d 915 (1959); United States v. Ryan, 225 F.2d 417, 426 (2d Cir.1955) (L. Hand, J., dissenting), rev’d, 350 U.S. 299, 76 S.Ct. 400, 100 L.Ed. 335 (1956); Waggoner v. Dallaire, 649 F.2d 1362, 1366 (9th Cir. 1981). The present case is remote from this policy. In making an additional payment to Tyson a year after the accident forced him to stop working, Levy was not trying to bribe union officers — whether in order to undermine the loyalty of the teamsters union to the teamsters employed by Levy or for any other reason. Nor was Levy being extorted to provide favors for union officers. It was merely trying to get a pension for its former employee — a pension, it is true, that would be paid for very largely by other employers; but whether or not this feature gives them a basis for squawking, or violates the collective bargaining agreement, it does not affront the purposes behind the statute. Granted, a statute may have a life of its own, and because of its strict and broad wording forbid practices remote from the draftsmen’s contemplation. Legislators often make a statute overinclusive in order to be sure there are no loopholes; we saw an example of this recently in FDIC v. O’Neil, 809 F.2d 350, 352 (7th Cir.1987). But even read literally, section 302 does not carry the day for the pension fund. The specific terms on which hours are to be credited are set out in detail and in writing in section 1.25 of the plan agreement, which can of course be considered along with the collective bargaining agreement in deciding whether the statutory requirement has been satisfied. Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1263 (9th Cir.1984). No writing, however detailed, can eliminate all questions of interpretation; the existence of a large body of case law arising from disputes over the meaning of the Internal Revenue Code shows this. The existence of an interpretive question does not preclude the pension fund from accepting employer contributions. It is true, but not helpful to the fund, that the statutory requirement of a detailed written basis for pension and welfare benefits appears to have been intended not only to back up the statute’s anti-bribery and anti-extortion policies but also to limit the discretion of unions in administering such funds, lest union officers use the discretion to punish their enemies and reward their friends. See 93 Cong.Rec. 4746-47 (1947); Denver Metropolitan Ass’n v. Journeyman Plumbers & Gas Fitters Local No. 3, 586 F.2d 1367, 1372-73 (10th Cir.1978). How detailed is detailed enough is not discussed in the cases; but section 1.25 of the plan agreement in this case is detailed enough to transform a dispute over the exercise of discretion (a dispute the persons vested with the discretion are almost certain to win) into a dispute over the meaning of a document, a dispute susceptible of objective resolution by a court or arbitrator. That, we believe, is sufficient detail to satisfy the statute. And in fact this case involves no exercise of discretion by the fund’s managers or anyone else connected with the union. If the fund’s statutory argument were accepted, employees would find it hard to qualify for pensions from union funds. For any time the pension plan was not absolutely crystalline in its application to an employee’s situation, the fund would refuse to accept contributions and he would therefore fail to qualify. Such an interpretation of section 302 would throw an unintended monkey wrench into the operation of union pension plans and would endanger the pension rights of many employees covered by such plans. The collective bargaining agreement provided an adequately detailed written basis for Levy to contribute to the fund for the 4 weeks pay that it gave Tyson in 1982. Whether, with this contribution, he is entitled to the pension is a question of contractual interpretation that the district court did not answer. The court did say that since the fund could not credit the contribution to 1981, it would not be acting irrationally in crediting it to 1982; but with the premise removed, the conclusion falls. Indeed, but for the statute the fund would apparently have no objection to crediting the payment to 1981 — though since the contribution was never made, the fund has never had occasion to decide what year to credit it to. We hold only that the statute is not a bar to Tyson’s claim. We remand the case for a determination of his contractual entitlement. Reversed and Remanded, With Directions. 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_issuearea

G

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. NATIONAL LABOR RELATIONS BOARD v. SEVEN-UP BOTTLING COMPANY OF MIAMI, INC. No. 217. Argued December 19, 1952. Decided January 12, 1953. Mozart G. Ratner argued the cause for petitioner. With him on the brief were Acting Solicitor General Stern, George J. Bott and David P. Findling. Frank A. Constangy argued the cause for respondent. With him on the brief were Marion A. Prowell and Albert B. Bernstein. Mr. Justice Frankfurter delivered the opinion of the Court. Acting under § 10 (c) of the Labor Management Relations Act, 1947 (the Taft-Hartley Act), 61 Stat. 136, 147, 29 U. S. C. (Supp. IV) § 160 (c), the National Labor Relations Board ordered the reinstatement of eleven dis-criminatorily discharged employees of the Seven-Up Bottling Company, with back pay “to be computed upon a quarterly basis in the manner established by the Board in F. W. Woolworth Company.” 92 N. L. R. B. 1622, 1640. In the Woolworth case, 90 N. L. R. B. 289, the Board said: “The public interest in discouraging obstacles to industrial peace requires that we seek to bring about, in unfair labor practice cases, ‘a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination.’ In order that this end may be effectively accomplished through the medium of reinstatement coupled with back pay, we shall order, in the case before us and in future cases, that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent’s discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, hereinafter called 'quarters,’ shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which [the employee] would normally have earned for each such quarter or portion thereof, [his] net earnings, if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter.” 90 N. L. R. B., at 292-293. In the proceeding in which the Board sought enforcement of the order against the Seven-Up Bottling Company, the Court of Appeals sustained the claim of the Company that the Woolworth formula could not be applied against it: “The employee is entitled to be made whole, but no more. The employees here involved were not compensated on a quarterly basis. We see no sufficient reason to so compute their back pay during suspension. . . . There is nothing to indicate that the conditions apprehended by the Board in the Woolworth case, exist here.” 196 F. 2d 424, 427-428. Accordingly, the court modified the Board’s order so that back pay would be awarded on the basis of the entire period during which an employee was denied reemployment in violation of the Act rather than on a quarterly basis. Since the general method of computing back pay is obviously a matter of importance in the administration of the Act, we brought the case here. 344 U. S. 811. Section 10 (c) of the Taft-Hartley Act, under which the Board made its award, derives unchanged, so far as is now relevant, from the National Labor Relations (Wagner) Act. 49 Stat. 449, 454. It charges the Board with the task of devising remedies to effectuate the policies of the Act. Of course the remedies must be functions of the purposes to be accomplished, and in making back pay awards, the Board operates under a further limitation. It must have regard for considerations governing the mitigation of damages; it must, that is, heed “the importance of taking fair account, in a civilized legal system, of every socially desirable factor in the final judgment.” Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 198. Subject to these limitations, however, the power, which is a broad discretionary one, is for the Board to wield, not for the courts. In fashioning remedies to undo the effects of violations of the Act, the Board must draw on enlightenment gained from experience. When the Board, “in the exercise of its informed discretion,” makes an order of restoration by way of back pay, the order “should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Virginia Electric & Power Co. v. Labor Board, 319 U. S. 533, 540. The Woolworth formula, as a general method of computation, is, under this test, proof against judicial challenge. The Board’s very first published order awarded as back pay wages which would normally have been earned “during the period from the date of . . . discharge to the date of [an] offer of reinstatement . . . less the amount . . . earned subsequent to discharge . . . .” Pennsylvania Greyhound Lines, Inc., 1 N. L. R. B. 1, 51 (1935), enforced sub nom. Labor Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261. For fifteen years the Board followed the practice it had laid down in that case and calculated back pay on the basis of the entire period between discharge and offer of reinstatement. In 1950, in F. W. Woolworth Company, supra, the Board said: “The cumulative experience of many years discloses that this form of remedial provision falls short of effectuating the basic purposes and policies of the Act.” 90 N. L. R. B., at 291. The Board considered that its Pennsylvania Greyhound formula for computing back pay adversely affected “the companion remedy of reinstatement.” When an employee, sometime after discharge, obtained a better paying job than the one he was discharged from, it became profitable for the employer to delay an offer of reinstatement as long as possible, since every day the employee put in on the better paying job reduced back pay liability. Again, the old formula, in the same circumstances, put added pressure on the employee to waive his right to reinstatement, since by doing so he could terminate the running of back pay and prevent the continuing reduction of the sum coming to him. To avoid these consequences the Board laid down its new method of computation. 90 N. L. R. B., at 292-293. It is not for us to weigh these or countervailing considerations. Nor should we require the Board to make a quantitative appraisal of the relevant factors, assuming the unlikely, that such an appraisal is feasible. As is true of many comparable judgments by those who are steeped in the actual workings of these specialized matters, the Board’s conclusions may “express an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions . . and they are none the worse for it. Chicago, Burlington & Quincy R. Co. v. Babcock, 204 U. S. 585, 598. It is as true of the Labor Board as it was of the agency in the Babcock case that “[t]he Board was created for the purpose of using its judgment and its knowledge.” Ibid. It will not be denied that the Board may be mindful of the practical interplay of two remedies, back pay and reinstatement, both within the scope of its authority. Surely it may so fashion one remedy that it complements, rather than conflicts with, another. It is the business of the Board to give coordinated effect to the policies of the Act. We prefer to deal with these realities and to avoid entering into the bog of logomachy, as we are invited to, by debate about what is “remedial” and what is “punitive.” It seems more profitable to stick closely to the direction of the Act by considering what order does, as this does, and what order does not, bear appropriate relation to the policies of the Act. Cf. Labor Board v. Gullett Gin Co., 340 U. S. 361. Of course, Republic Steel Corp. v. Labor Board, 311 U. S. 7, dealt with a different situation, and its holding remains undisturbed. It is urged, however, that no evidence in this record supports this back pay order; that the Board’s formula and the reasons it assigned for adopting it do not rest on data which the Board has derived in the course of the proceedings before us. But in devising a remedy the Board is not confined to the record of a particular proceeding. “Cumulative experience” begets understanding and insight by which judgments not objectively demonstrable are validated or qualified or invalidated. The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process. “[T]he relation of remedy to policy is peculiarly a matter for administrative competence . . . .” Phelps Dodge Corp. v. Labor Board, supra, 313 U. S., at 194. That competence could not be exercised if in fashioning remedies the administrative agency were restricted to considering only what was before it in a single proceeding. This is not to say that the Board may apply a remedy it has worked out on the basis of its experience, without regard to circumstances which may make its application to a particular situation oppressive and therefore not calculated to effectuate a policy of the Act. The Company in this case maintains that it operates a seasonal business, that its employees may earn three times as much in the first and fourth quarters of a year as in the second and third, and that a quarterly calculation of back pay would in this context be obviously unjust. The Board suggests that it will be time enough to deal with such special facts in this case if the Board and the Company cannot agree on the fair application of the Woolworth formula after the order is sustained. But in case of such disagreement, the Company can be heard as of right on the issue it now raises only in the course of contempt proceedings and at the risk involved in them. We do not think contempt proceedings are appropriate for the settlement of such an issue. Phelps Dodge Corp. v. Labor Board, supra, 313 U. S., at 200. Indeed, the Board’s pre-Woolworth formula was adapted to varying circumstances as a result of proceedings had before the Board prior to the issuance of orders. See, e. g., Crossett Lumber Company, 8 N. L. R. B. 440, 496-498; Gullett Gin Company, Inc., 83 N. L. R. B. 1, 2, n. 4, .enforced sub nom. Labor Board v. Gullett Gin Co., supra. We assume that the Woolworth formula will be applied in like manner. In any event, this aspect of the problem is not now properly here. The Company never made before the Board the objection it now bases on the seasonal nature of its business. Section 10 (e) of the Act, 61 Stat. 136, 147, 148, 29 U. S. C. (Supp. IV) § 160 (e), provides: “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.” In its Exception XXII to the Intermediate Report of the Trial Examiner, the Company objected that the recommendations as to the remedy were contrary to, and unsupported by, the evidence and contrary to law. This is not adequate notice that the Company intends to press the specific issue it now raises. Marshall Field & Co. v. Labor Board, 318 U. S. 253. The Company did not urge this issue either before the Board or in the Court of Appeals. No extraordinary circumstances are present such as would justify permitting the issue to be raised here for the first time. The Company contends, finally, that though it might have been within the authority of the Board to devise the Woolworth formula under the language of the National Labor Relations Act, the fact that that language was reenacted while the Board adhered to its pre-Woolworth formula has deprived the Board of power to depart from the latter. We are told that Congress studied with unusual care the case law which had developed under the statute Congress was revising and reenacting by the Labor Management Relations Act, and that it adopted new language whenever it desired results other than the ones reached by the cases. We are cited to Labor Board v. Gullett Gin Co., supra, and asked to conclude as a general proposition that whenever Congress reenacted without change provisions of the National Labor Relations Act it thereby froze administrative decisions rendered under those provisions. Gullett Gin carries no such generalization. Having held that the Board’s practice of failing to deduct unemployment compensation payments in the calculation of back pay awards did not go beyond its powers, we said in that case that our holding was supported by the fact that Congress had reenacted the relevant part of § 10 (c) of the National Labor Relations Act with what we took to be notice of this practice. We thought Congress could be said to have agreed that the Board was acting within the authority Congress meant it to have. Assuming Congress was aware of the Board’s pre-Woolworth practice of calculating back pay on the basis of the entire period from discharge to offer of reinstatement, we could say here, as we did in Gullett Gin, that Congress by its reenactment indicated its agreement that the Board’s practice was authorized. That leads us nowhere on the present issue, though it is only this far that what we said in Gullett Gin can lead us. In that case as here, again assuming notice, if Congress was satisfied that the Board was acting within its powers, the thing for it to do was what it did — reenact without change. In that case as here — though, of course, we had no occasion to say so in that case — if Congress had been more than satisfied with the Board’s practice, if it had wanted to be certain that the Board would not in future profit by its experience, it would have had to do more than it did; it would have had to change the language of the statute so as to take from the Board the discretionary power to mould remedies suited to practical needs which we had declared the Board to have and which the Board was asserting and exercising. We cannot infer an intent to withdraw the grant of such power from what is at most a silent approval of specific exercises of it. We hold that the Board’s order is to be enforced. Reversed. 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

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. Gordon W. JONES, Plaintiff-Appellant, v. O.D. GANN, etc., et al., Defendants-Appellees. No. 82-8489 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit. April 18, 1983. Gordon W. Jones, pro se. Downey, Cleveland, Moore & Parker, Lynn A. Downey, Marietta, Ga., for defendants-appellees. Before HILL, KRAVITCH and HENDERSON, Circuit Judges. JAMES C. HILL, Circuit Judge: Jones filed this § 1983 action alleging that the defendants violated his civil rights in the enforcement of a Marietta city ordinance. Jones alleged that he had been prosecuted under the ordinance but had been discharged from the conviction by the Superior Court of Cobb County, Georgia. That court had ruled, however, that the city could retain the fine originally assessed against Jones. Jones contended in his present complaint that defendants had no legal basis upon which they could retain his money and that their actions in retaining his money violated the United States Constitution. He also alleged that in the process of enforcing the citation, individual defendants Gann, Griffin, and Crane committed numerous tortious acts. The city and the mayor filed a motion for summary judgment alleging that after the actions of which Jones complains and prior to the filing of the instant action, another federal court had dismissed with prejudice an action by Jones raising the same issues as those raised in the present action. The district court dismissed the instant action on the grounds of res judicata. Defendants Griffin, Crane, and Gann later filed a summary judgment motion alleging that the issues raised in this case had previously been adjudicated in actions in both federal and state court. The district court granted their motion for summary judgment on res judicata grounds and dismissed the action. We affirm the district court’s order dismissing the action against the city and the mayor but vacate the order dismissing the action against defendants Gann, Griffin, and Crane. As a preliminary matter, appellees assert that Jones’ notice of appeal filed on August 2,1982 was not timely. They argue that the notation made upon the final judgment order indicates that the judgment was filed on June 29, 1982. The docket sheet contradicts this notation, indicating that the judgment was actually entered on the docket on July 1, 1982. The time for filing a notice of appeal begins to run not on the date that the judgment is filed but on the date the judgment is actually entered on the docket. See United States v. Rothseiden, 680 F.2d 96, 97 (11th Cir.1982); Fed.R. App. 4(a)(b); Fed.R.Civ.P. 58; Fed.R.Civ.P. 79(a). We conclude that Jones’ notice of appeal was timely. On the merits, Jones contends that the district court erred in concluding that this action is barred by former state and federal suits. In Allen v. MeCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), the Supreme Court held that a § 1983 litigant could be collaterally estopped from .asserting claims which he could have litigated in a prior state proceeding. In Southern Jam, Inc, v. Robinson, 675 F.2d 94, 96-97 (5th Cir. Unit B 1982), the court extended this principle to issues that the litigant might have raised but did not raise in the prior proceeding provided that he had a full and fair opportunity to raise the issues. The law of the state of the court rendering a prior state decision determines the scope of the estoppel defense. Id. at 97-98; 28 U.S.C. § 1738 (1976). In Southern Jam, the court noted that the law of Georgia is clear: A party must raise any claim against an opposing party which arises out of the transaction or occurrence that is the subject-matter of the opposing party’s claim, so long as the presence of a third party is not required. Failure to plead that claim then precludes that party from asserting it in a separate, second litigation. Ga. Code § 81A-113(a); see generally P & J Truck Lines, Inc. v. Canal Insurance Co., 148 Ga.App. 3, 251 S.E.2d 72 (1978). 675 F.2d at 98. The same principles apply to the res judicata effect of prior federal court judgments. See Kremer v. Chemical Construction Corp., 456 U.S. 461, 466 n. 6, 102 S.Ct. 1883, 1889 n. 6, 72 L.Ed.2d 262 (1982). The record does not indicate that Gann, Griffin, and Crane and the allegations against them were involved in the prior state or federal proceedings. Many of Jones’ claims in the present action constitute state law torts, some of which provide possible bases for a § 1983 claim. The dissimilarity of the claims in the suits indicates that the presence of Gann, Griffin, and Crane would have been required in any prior adjudication of these claims. Appellant .has not merely substituted different defendants for the same cause of action. We conclude that under Georgia or federal law as applied to a § 1983 action these three defendants could not raise the bar of res judicata. Jones also argues that the district court erred in dismissing his action against the city and the mayor on res judicata grounds. In Concordia v. Bendekovic, 693 F.2d 1073 (11th Cir.1982), the court emphasized that when addressing a claim of res judicata, a court must examine the record to determine whether the issue has been actually or could have been litigated and to ascertain whether there has been a final judgment in the other proceeding. Although the court expressed a preference for a copy of the record of the prior proceedings, it did not conclude that such was a prerequisite for successful assertion of a res judicata claim. In Concordia, the court distinguished between a Rule 12(b) dismissal motion and a Rule 56 motion for summary judgment based on a res judicata claim. Id. at 1075-76. A party may raise a res judicata defense by a Rule 12(b) motion when the defense’s existence can be judged on the face of the complaint. Id. at 1075. A party may successfully raise this defense in a Rule 56 summary judgment motion by introducing sufficient information into the record to allow the court to judge the validity of the res judicata defense. See id. The defendant in Concordia failed to satisfy this burden, introducing only a copy of a counterclaim in a prior state proceeding and a copy of a judgment which denied the plaintiff relief on this counterclaim but did not indicate the basis for the state court’s conclusion. In the case at bar, the city and the mayor answered Jones’ complaint, raising res judicata principles as an affirmative defense pursuant to Fed.R.Civ.P. 8(c). They then moved for summary judgment including in the record a copy of two orders in the prior case of Jones v. City of Marietta, C.A. No. 80-1779A (N.D.Ga.). The June 19 order dismissed that action with prejudice, indicating that the prior proceeding reached a final judgment. We must therefore determine whether the April 28 order provides a sufficient basis for determining which issues were or could have been raised in that proceeding. This order indicates that Jones had argued that the city’s regulations regarding the automobile ordinance violated the fourth, fifth, and fourteenth amendments of the United States Constitution. Specifically, Jones argued in No. 80-1779A that (1) the regulations were unconstitutionally vague; (2) the regulations were not uniformly enforced and were used to harass certain persons; (3) enforcement of the regulations amounted to a “taking” of plaintiff’s property without due process of law; and (4) enforcement of the regulations denied Jones equal protection of the law. The record indicates that Jones' present claims against both the city and the mayor raise the same issues which either were raised or could have been raised in the prior proceeding. Jones has failed to present any evidence indicating that the orders in C.A. No. 80-1779A do not accurately reflect the complete record of that case. We therefore conclude that principles of res judicata bar the plaintiff from relitigating his claims against the city and the mayor in the instant action. Southern Jam, Inc. v. Robinson, 675 F.2d 94, 96-98 (5th Cir. Unit B 1982). The district court’s disposition of C.A. No. 80-1779A by way of settlement .does not alter our conclusion, Jones v. Texas Tech University, 656 F.2d 1137, 1142 n. 2 (5th Cir.1981), and reinforces our conclusion that the prior judgment involved actual litigation of Jones’ claims, see Astron Industrial Associates v. Chrysler Motors Corp., 405 F.2d 958, 960 (5th Cir. 1968) (dismissal with prejudice constitutes a final judgment on the merits). We affirm the order of the district court dismissing the present action against the city and the mayor. We vacate and remand the court’s order dismissing this action against defendants Griffin, Crane, and Gann. AFFIRMED in part; VACATED and REMANDED in part. . Jones had filed several suits in both state and federal court prior to bringing the present action. The district court premised its order dismissing the city and its mayor on a prior adjudication in federal court, Jones v. City of Marietta. C.A. No. 80-1779A. The, district court based its decision dismissing Gann, Griffin and Crane on the Georgia Supreme Court’s decision in Jones v. City of Marietta, 248 Ga. 773, 285 S.E.2d 730 (1982). . We need not determine whether these claims are sufficient to survive a dismissal motion under Fed.R.Civ.P. 12(b)(6) since the issue was not properly raised before the district court. 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: