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ricdomolm

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lawma-instructions_gemma2_8k

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songer_weightev

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 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". McMAN OIL & GAS CO. v. HURLEY et al. Circuit Court of Appeals, Fifth Circuit. March 19, 1928. No. 5050. 1. Mines and minerals <§=105 (2) — Authority to execute conveyance was conclusively presumed, where secretary’s certificates showed resolutions of executive committee and directors authorizing sale. Where certificates of secretary, showing resolutions of executive committee and board of directors of corporation authorizing and approving sale of oil lease, were issued and delivered to purchaser, it was conclusively presumed that the resolutions were adopted and that corporate authority was given to execute conveyance. 2. Corporations <@=>422(1) — Corporation is es-topped to deny authorized representations of its officers and'agents. Corporation is estopped to deny representations of its officers and agents, made within the scope of their authority. 3. Frauds, statute of <@=63(2)— Purchaser’s oral agreement, after sale of oil lease, to re-convey, held inadmissible under statute. Alleged oral agreement of purchaser of oil lease, after sale was made, to reconvey upon return of purchase price within 60 days, held inadmissible under statute of frauds. 4. Evidence <@=230 (3) — Title, having passed, cannot be impeached by vendor’s declaration that it passed conditionally. After title to property has passed to purchaser, it cannot be impeached by the vendor’s declaration that sale was conditional only. 5. Mines and minerals <@=74 — Failure of vendor of oil lease to attempt to comply with alleged condition permitting repurchase within time agreed rendered purchaser’s title absolute. If purchaser of oil lease entered into agreement with vendor to reconvey on return of purchase price within 69 days, purchaser’s title became absolute, where no attempt was made to comply with the condition within the time limit agreed upon. 6. Evidence <@=244(1 i) — Declaration that ■ Its officer had agreed to give bribe for sale of oil lease held not binding on purchaser corporation and insufficient to show bribery. Purchaser of oil lease, sued by receivers of vendor corporation to set aside conveyance as fraud on creditors, held not bound by declaration of vendor’s officer concerning agreement of purchaser’s officer to give bribe for sale, since conversation was not part of res gestee but constituted mere narration of past event, and charge of bribery was therefore not sustained. 7. Fraudulent conveyances <@=298(I)— Evidence held insufficient to support finding that sale of oil lease by corporation at time of financial embarrassment and decline in price of oil was made to defraud creditors. In suit by receivers of oil company to set aside corporation’s sale of oil lease, made at time price of oil had considerably declined and corporation was financially embarrassed, evidence held insufficient to support finding that sale was made with intent to hinder, delay, or defraud creditors, notwithstanding close family relations between officers and stockholders of two companies and profits realized from property after sale, where insolvency of grantor was not satisfactorily shown. 8. Fraudulent conveyances <@=249 — Year’s delay by receivers held to bar suit to set aside sale of corporation’s oil lease as fraud on creditors. Suit by receivers of oil company to set aside sale of corporation’s oil lease as fraud on creditors held barred by laches, where receivers delayed bringing suit for one year, after having acquired knowledge of all essential facts upon which suit was based, on account of belief that transaction was profitable to corporation. 9. Fraudulent conveyances <§=248 — Vendor’s receivers on purchaser’s refusal to reconvey oil lease as agreed were required to act promptly to set aside sale as fraud on creditors. Receivers of oil company, upon receiving notice of refusal of purchaser of oil lease to re-convey in alleged violation of agreement, were required to act promptly to set aside sale on account of fraud, especially in view of fluctuation in prices of oil-producing properties, and receivers could not wait and determine in the light of subsequent events whether it would be to their advantage to recognize the sale as valid. Appeal from tlie District Court of the United States for the Northern District of Texas; James Clifton Wilson, Judge. Suit by P. J. Hurley and another, receivers of the Gilliland Oil Company, against the McMan Oil & Gas Company. From a decree for complainants defendant appeals. Reversed and remanded, with directions. John Rogers, of Tulsa, Okl., Harry H. Rogers, of San Antonio, Tex., A. B. Flanary, of Dallas, Tex., A. H. Carrigan, of Wichita Falls, Tex., and R. L. Batts, of Austin, Tex. (Carrigan, Britain, Morgan & King, of Wichita Falls, Tex., and Flanary & Aldredge, of Dallas, Tex., on the brief), for appellant. T. R. Boone, of Wichita Falls, Tex., John M. Atkinson, of St. Louis, Mo., J. M. McCormick, of Dallas, Tex. (McCormick, Bromberg, Leftwich & Carrington, of Dallas, Tex., Atkinson, Rombauer & Hill, of St. Louis, Mo., Boone & Humphrey, of Wichita Falls, Tex., and Robert H. Richards, of Wilmington, Del., on the brief), for appellees. Before WALKER, BRYAN, and FOSTER, Circuit Judges. BRYAN, Circuit Judge. On May 11, 1921, the Gilliland Oil Company conveyed to the McMan Oil & Gas Company an interest in oil-producing land, designated in the record as the Hardin lease. The conveyance was absolute in form, and was authorized by the executive committee of the Gilliland company’s board of directors. A resolution of the board of directors, dated May 19, purporting to approve the sale, appears in the minutes; but whether it was adopted by a majority vote depends upon conflicting evidence as .to whether a director named McCullough was present. However, it is shown by undisputed testimony that the secretary certified that both sets of resolutions were regularly adopted by a majority vote, and his certificates to that effect‘Were delivered by the general attorney of the Gilliland company to the general attorney of the McMan company after the latter had insisted upon the sale being approved by resolution of the directors. On November 20, 1922, this suit was brought by P. J. Hurley and John J. Satterthwait, as receivers of Gilliland company, against the McMan company, to have the conveyance in question- decreed to be a mortgage, or to have been made with intent to hinder, delay, or defraud creditors of the grantor. The bill alleged that at the time of such conveyance the Gilliland company was insolvent, in the sense that it was unable to pay its debts as they matured in the course of business. Appellant defended on the grounds that it paid adequate consideration, was the purchaser of an unconditional title in good faith, without notice of the grantor’s insolvency, and that the suit was barred by laches. The purchase price, which was promptly paid, was a million dollars. Before this suit was brought, the net profits exceeded that sum. On final hearing, the District Court held that the sale was made in fraud of creditors, and that appellant had notice, though not actual knowledge, thereof, and ordered that the sale be set aside, and that appellant account to the receivers for the profits it had received over and above the purchase price. The Gilliland company was engaged in trading in oil properties and in producing and selling oil therefrom. It was incorporated under the laws of Delaware, with its principal office at Tulsa, Okl. In July of 1921 Hurley and Satterthwait were appointed receivers of that company by the Federal Distriet Court of Delaware and ancillary receivers by the Federal District .Court for the Northern District of Texas. The bill of complaint was filed on behalf of preferred stockholders, and charged the sale of property in Louisiana for less than its value,' but did not attack the sale of the Hardin lease to appellant. In May of 1922 the Gilliland company was reorganized, and its assets were ordered returned to it as a solvent, going concern ; and, except for the purpose of bringing this suit, the receivership was terminated. At the beginning of the year 1921, crude oil and its by-products commanded high prices; but in January of that year those prices began to decline rapidly. The price of crude oil dropped from $3.50 to $4 per barrel in January to $1.50 by May 11, the date of the conveyance in question. It continued to decline until in September, when it fell to the low level of $1 per barrel. Of course, the price of by-products declined in proportion. Beginning in September, prices began to advance. During this period of depression many oil operators either failed or were seriously embarrassed. Many banks that financed oil operators were in a precarious condition, and some of them also failed. The Gilliland company found itself in great financial difficulty, although it is not claimed that at any time its liabilities exceeded its assets. John -W. Gilliland was its president, and owned about 75 per cent, of its common stock. Hurley, who was later one of its receivers, and J. H. Boxley were active vice presidents. Gilliland and Boxley were interested in a number of banks in Oklahoma and Texas, and resorted to the devices of kiting checks and making accommodation notes to secure money for their corporation, which continued to expand its business by making additional purchases until as late as the middle of April. In order to raise the money which the corporation needed to pay its debts, including the debts evidenced by fictitious paper in banks, which, though not definitely fixed by the evidence, ranged somewhere be* tween one and two million dollars, the disputed sale of the Hardin lease was made, and the proceeds of the sale were applied in the payment of its debts. The McMan Oil & Gas Company also had its principal office at Tulsa, and, as its name implies, was engaged in the oil-producing business. J. A. Chapman, R. M. MeFarlin, and H. G. Barnard were its president, vice president, and treasurer, respectively, and together owned more than 75 per cent, of its capital stock. They were familiar with the Hardin lease, by reason of the fact that the McMan company owned a one-eighth interest in it at the time of the conveyance by the Gilliland company. Gilliland, Boxley, Chapman, McFarlin, and Barnard were all related to each other by blood or marriage. Negotiations for the conveyance of the Hardin lease were conducted by Boxley and Barnard, and, according to their testimony, that conveyance was intended to evidence an outright, unconditional sale. The court found that the fair market value of the property at the time of the transaction was approximately $1,784,000. The Hardin lease represented about one-third of the value of the Gilliland company’s total assets. Approximately $3,600,000 of preferred stock had been issued and was held by investors living in New York. About a month after the conveyance was made, representatives of preferred stockholders called upon Chapman with the view of reacquiring the property. They stated to him that they had been informed by Gilliland that this could be accomplished by returning the purchase price of a million dollars with interest within a reasonable time. Gilliland testified that he had made a statement to this effect to the board of directors of Gilliland company at the time the resolution approving the sale was adopted. He further testified that he never discussed the return of the property with Chapman, but that Barnard agreed, after the sale was made, to a reconveyance upon the return of the purchase price within 60 days. Chapman and Barnard denied that there was any such understanding, but Chapman offered to reeonvey the property upon those terms being accepted and complied with within two weeks. Upon request, the time was extended about two weeks more, but Chapman’s offer was not accepted. In the meantime, engineers made an investigation and reported to the parties interested in securing a reconveyance that the property was worth less than the sum that the McMan company had paid for it. In September, Hurley, one of the receivers, made practically the same offer, but it was declined. J. W. Hayes, secretary of the Gilliland company, testified that he heard Barnard say that that company could have the property back at any time it returned the money, but that witness was unable to say that the statement was made before the contract was executed. J. H. Maxey, general attorney for the Gilliland company, N testified that, after the sale was agreed upon, but before the resolution of the board of -directors approving it was passed, Boxley told.him that Barnard had agreed to pay Boxley a bribe of $150,000 for making the sale. That witness, however, does not claim that he disclosed this information to the board of directors, or to any of the other officers of the company he represented. Besides this, he co-operated with the general attorney of the McMan company in the preparation of the final papers, and never mentioned the alleged bribe to him, and represented the receivers as attorney throughout the receivership proceedings. Hurley, one of the receivers, testified that he first learned of Boxley’s alleged admission to Maxey of being promised a bribe by Barnard in November of 1921, but admitted that Barnard denied the truth of the charge. And there was no direct evidence that the corrupt agreement was in fact made. The testimony of the several witnesses for appellees, to the effect that appellant’s officers had stated after the sale was made that it would reeonvey upon the return of the purchase price, was received over appellant’s objection and exception, as was also the testimony relating to Maxey’s alleged conversation with Boxley on the subject of a bribe being paid by Barnard. In addition, Boxley denied that any such conversation was ever had, and both he and Barnard denied that the alleged bribe was ever offered. The testimony discloses that the principal officers and stockholders of the McMan company knew in a general way that the Gilliland company was in need of money to pay its pressing obligations, and in order to get it was under the necessity of disposing of some of its holdings at a possible sacrifice because of greatly depressed, market conditions; but it does not show that they had knowledge or could reasonably be charged with notice that the sale of the Hardin lease would so reduce its assets as to bring about a condition of insolvency. In our opinion it sufficiently appears that corporate authority was given to execute the conveyance of the Hardin lease to appellant.. The resolutions, both of the executive committee and of the board of directors, purport to have been adopted by majority votes. It is conclusively presumed that they were so adopted by reason of the certificates to that effect issued by the secretary and delivered to appellant by the general attorney of the Gilliland company. A corporation is estopped to deny the representations of its officers and agents made within the scope of their authority. Whiting v. Wellington (C. C.) 10 F. 810; Holden v. Whiting (C. C.) 29 F. 881; Prentiss Tool & Supply Co. v. Godchaux (C. C. A.) 66 F. 234; Commonwealth v. Reading Savings Bank, 137 Mass. 431; Holden v. Phelps, 141 Mass. 456, 5 N. E. 815. The conveyance was not a mortgage. Under no phase of the evidence was the consideration shown to be a loan. The utmost that was claimed by witnesses for appellees was that a sale was made upon condition that the property sold could be repurchased. That testimony went no further than to show that the condition was imposed by appellant after the sale was consummated; but it was oral testimony, and in our opinion was inadmissible under the statute of frauds. 27 C. J. 207. After title has passed, it cannot be impeached by the vendor’s declaration that it was conditional. Greenleaf, § 189. But, assuming the admissibilty of that testimony, the right claimed was to repurchase within the definite period of 60 days. There was no testimony that such right should continue for a reasonable time, as is contended by appellees. No attempt was made to comply with the alleged condition within the time limit that was agreed upon, and so appellant’s title became absolute. Campbell v. Fetty (C. C. A.) 271 F. 671. We are of opinion also that the evidence, even of appellees, fails to show that the conveyance was made with intent to hinder, delay, or defraud creditors of the Gilliland company. The charge of bribery must fail, because it is only supported by an alleged declaration of an officer of appellees which it is not claimed was made until after the execution of the contract of sale. The alleged conversation between Boxley and Maxey was not a part of the res geste, or made during the continuance or in pursuance of a common plan designed by Boxley and Barnard, but was a narrative of a past event. Under no possible view could it be binding on appellant. There was no other circumstance tending to sustain the charge of bribery. The evidence does not appear to us sufficient fairly and reasonably to support the conclusion that the Gilliland company made the sale with intent to hinder, delay, or defraud its creditors. In the first place, insolvency of that company is not satisfactorily shown. The most that appears is that that company, in order to pay its debts, was obliged to sell some of its holdings at a sacrifice because of depressed market conditions. No improper use was made of the proceeds of the sale, but they were devoted to the payment of debts. The officers of the McMan company were, of course, acquainted with the financial situation that confronted oil companies generally, and besides knew that the Gilliland company was badly in need of money. But, as it appears to us, the evidence falls short of showing that they were chargeable with notice that the Gilliland company was insolvent, even conceding the existence of a state of actual insolvency. In arriving at this conclusion, we have given full weight to the circumstance that close family relations existed between the principal officers and stockholders of the two companies, But, aside from all the foregoing considerations, we are of opinion that this suit is barred by laehes. Hurley, one of the receivers, and formerly a vice president of the Gilliland company, knew of the sale in question. The original suit, in which- he was appointed one of the receivers, was brought in July of 1921. It is significant that the sale here complained of was not attacked during the entire period of the receivership, which was not terminated until May of 1922. Certainly the preferred stockholders, on whose behalf the receivership proceedings were instituted, knew of the sale, for, within a few weeks after it was made, they negotiated for a repurchase. The reason that they did not reacquire the Hardin lease may reasonably be ascribed to their belief that it was not worth more than the price at which it had been sold. Hurley was notified in September of 1921 that the purchaser would not re-convey the property, but would insist upon holding the title it had acquired. Upon receiving notice of the refusal of the purchaser to reconvey, it became the duty of the receivers to act promptly, especially in view of the great fluctuation in the prices of oil-producing properties. They could not wait and determine in the light of subsequent events whether it would be to their advantage to recognize the sale as valid or to repudiate it as invalid. Hurley excused the delay until November of 1921 on the ground that he did not earlier learn of Barnard’s ‘alleged bribery of Boxley. But it stands admitted that there was a delay in bringing suit oí; a year after Hurley was in full possession of all the essential facts on which the suit was based. In the meantime it developed that the purchase of the Hardin lease was profitable to appellant. It is not equitable to allow appellees so to speculate on the value of the property involved. Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 23 L. Ed. 328. The decree is reversed, and the cause remanded, with directions to dismiss the bill of complaint. 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_genresp2

I

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. CONCRETE ENGINEERING CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 9124. Circuit Court of Appeals, Eighth Circuit. April 13, 1932. George E. H. Goodner, of Washington, D. C., for petitioner. Norman D. Keller, Sp. Asst, to the Atty. Gen. (G. A. Youngquist, Asst. Atty. Gen., Sewall Key, Sp. Asst, to the Atty. Gen., and G. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and John D. Foley, Sp. Atty., Bureau of Internal Revenue, both of Kansas City, Mo., on the brief), for respondent. Before STONE and KENYON, Circuit Judges, and CANT, District Judge. STONE, Circuit Judge. This is a petition by a taxpayer to review an order of the Board of Tax Appeals redetermining income and excess profits taxes for the year 1920. Before the Board of Tax Appeals petitioner urged four errors in the assessment-of this tax. One of these had to do with the failure of the Commissioner to allow a depreciation deduction on two patents which formed the foundation of petitioner’s business. The Board found the values of the patents, and allowed a depreciation deduction equivalent to one-seventeenth of the value thereof. The petitioner acquiesces in this finding, and that question is not presented here [however, see Burnet v. National Electrie Ticket Register Co., 55 F.(2d) 587, this court, opinion filed January 23, 1932]. Another error has to do with the contention that this assessment is barred by limitations. A third error is the failure of the Commissioner to include the value of the above patents as invested capital for the taxable year. The final error is that the Commissioner refused to allow petitioner the benefit of a “special assessment” in accordance with sections 327 and 328 of the Revenue Act of 1918 (40 Stat. 1093). As to this last error, the Board found that petitioner was entitled to this special assessment, and this finding of the Board is acquiesced in by the petitioner, except that it here contends that the Board erred in failing to hold that petitioner is entitled to have its tax liability computed both by special assessment and by the regular statutory basis with allowance of the patents as invested capital, and that whichever of these two methods results in the least tax is the proper one to apply. I. Limitations. The tax return of the petitioner for the year 1920 was filed on March 15,1921. Under section 277 (a) (3) of the Revenue Act of 1926 (44 Stat. 9, 58, 26 USCA § 1057 (a) (3), taxes were required to be assessed within five years after the return for taxation was filed. Section 278 (c) of the same act (44 Stat. 9, 59, 26 USCA § 1060 note) provided that “where both the commissioner and the taxpayer have consented in writing to the assessment of the tax after the time prescribed in Section 277 for its assessment the tax may be assessed at any time prior to the expiration of the period agreed upon.” Under the above statutes, the limitation for the assessment of this tax would (without such consent) have expired on March 15, 1926. On February 2, 1926, a waiver, in the departmental form, was executed by the taxpayer and the Commissioner, expiring December 31,1926. Upon June 14, 1926, the Commissioner notified petitioner of the deficiency assessment here involved. Petitioner concedes that, if this waiver is valid, the assessment is not barred, but it attacks the validity of this waiver. This attack is upon two grounds, which are: First, that this waiver was signed on the part of the Commissioner, “D. H. Blair, Commissioner, L. G.,” which reveals that it was not signed by the Commissioner in person, and there was no showing as to who signed his name to this document; seeond, that the other signature is “Concrete Engineering Company, by A. P. Jessen, See’y-Treas., Taxpayer,” and that, under the laws of Nebraska, the secretary of a corporation is not authorized to bind the corporation in the absence of specific authority. In Stem Brothers & Co. v. Burnet, 51 F. (2d) 1042, 1046, a similar contention was made regarding a waiver signed “D. H. Blair, Commissioner, M. B.,” and this court said: “The contention as to the proper signature is met by the waiver itself, which eontains the signature ‘D. H. Blair, Commissioner/ and the presumption of the verity of the acts of public' officials. United Thacker Coal Co. v. Commissioner, 46 F. (2d) 231, 233 (C. C. A. 1); Trustees for Ohio & Big Sandy Coal Co. v. Commissioner, 43 F.(2d) 782, 784 (C. C. A. 4). “In general, it may be said as to this controversy and those of a related character that a waiver of this kind is ‘essentially a voluntary, unilateral waiver of a defense by the taxpayer/ as stated in Stange v. United States, 282 U. S. 270, 276, 51 S. Ct. 145, 75 L. Ed. 335; also see Florsheim Bros. Drygoods Co. v. U. S., 280 U. S. 453, 466, 50 S. Ct. 215, 74 L. Ed. 542; that the signature by the Commissioner is a statutory requirement made, not for contract purposes, but ‘to meet exigencies of administration/ as said in Aiken v. Burnet, 282 U. S. 277, 281, 51 S. Ct. 148, 75 L. Ed. 339; also see Stange v. United States, 282 U. S. 270, 276, 51 S. Ct. 145, 75 L. Ed. 335; Burnet v. [Chicago] Railway Equipment Co., 282 U. S. 295, 298, 51 S. Ct. 137, 75 L. Ed. 349; Elorsheim Bros. Co. v. U. S., 280 U. S. 453, 466, 50 S. Ct. 215, 74 L. Ed. 542; Greylock Mills v. Commissioner, 31 F.(2d) 655, 657 (C. C. A. 2); and where the taxpayer, by the execution of the waiver, has obtained delay in the assessment of additional taxes, and a more deliberate and thorough consideration of the questions involved, and where the waiver is regular in form and in the possession of the proper governmental bureau, every presumption should be taken in favor of its validity and binding effect, and the burden is upon the taxpayer to show such invalidity or ineffectiveness, see Trustees for Ohio & Big Sandy Coal Co. v. Commissioner, 43 F.(2d) 782, 784 (C. C. A. 4).” Where a waiver of this character bears a purported signature of the Commissioner, and comes from the files of his office, the presumption is that it has been properly executed, and the burden is upon the taxpayer to prove otherwise, and is not upon the Commissioner to prove the verity or authority of his signature. That burden on the taxpayer has not been here sustained. As to the sufficiency of the signature of the taxpayer: There is no -question that the secretary of the taxpayer executed the above signature and affixed to the waiver the corporate seal of petitioner. From the record it is obvious that petitioner secured the advantage of this extension in so far as the Commissioner in reliance thereon was prevented by this waiver from making a deficiency assessment before the expiration of the period of limitation. It may, well be that, under the laws of Nebraska, there are many things which a secretary of a corporation cannot alone do so as to bind the corporation, but an act of this sort is of a character which is rather clerical in its, character, and a corporate officer cannot be permitted, under the taxing statutes, to sign-, a waiver and affix the corporate seal in a; manner which would naturally induce the-Commissioner to act thereon, and, after it has secured the advantage thereof, repudiate the transaction to the harm of the government. There is no claim here that this-action of the secretary was in violation or opposition to any action' of the board of directors or other governing officers. The-waiver must be held good against the objections here urged. II. Patents as Capital Investment. This contention is that the value of the patents should be included as invested capital, and thus results in a reduction of the tax. If such an inclusion is allowable; permission therefor must be found in provisions of the act. The petitioner relies upon section 326 (a) (3) of the Revenue Act of 1918 (40 Stat. 1057, 1092). That section defines the term “invested capital” as used in the act. Petitioner claims that the value of the patents should be regarded as “paid-in * * * surplus,” as set forth in subparagraph (a) (3), which is as follows : “Paid-in or earned surplus and undivided profits; not ineluding surplus and undivided profits earned during the year.” Invested capital for the purposes of taxation under this act is expressly defined and limited in section 326, and the matters which are included within that definition must be found in the clear expression of that section. Patents are defined as intangible property for the purposes of the act in section 325 (a), 40 Stat. 1057, 1091. Section 326 (a) has five numbered paragraphs. The division of those paragraphs as to character of property is that the first three refer to tangible property, while the fourth and fifth refer to intangible property. In those definitions, intangible property is included as invested capital only when it is “paid in for stock or shares.” Paragraph (3) has no reference to intangible property. In fact, it seems narrowly limited even as to tangible property to money, since the expressions therein are such as properly apply only to money. Those expressions refer to “surplus” and “undivided profits,” and the expression regarding such surplus and profits is that they shall be “paid in or earned.” Nor can these patents be allowable under paragraphs (4) or (5), which refer to intangible property because the requirement there is that such property may form a part ■of invested capital only where paid in for •stock or shares. The record here is undisputed that all of the shares of this corporation were paid for by tangible property, and that the patents came to the corporation from the inventor in the form of pure gifts. While these patents added very substantially to the property and assets of the •corporation, they do not come within the statutory definition; therefore they cannot be regarded, for taxation, as any part of the invested capital of the company. The above view is supported by La Belle Iron Works v. U. S., 256 U. S. 377, 388-391, 41 S. Ct. 528, 65 L. Ed. 998, and see Lewis A. Crossett Co. v. U. S., 50 F.(2d) 292, 295 (Ct. Cl.); (Revenue Act 1918) Landesman-Hirschheimer Co. v. Commissioner, 44. F. (2d) 521, 523 (C. C. A. 6); (Revenue Acts 1918 and 1921) Daily Pantagraph v. U. S., 37 F.(2d) 783, 789 (Ct. Cl.); (Revenue Acts 1917, 1918, and 1921) Baker & Taylor Co. v. U. S., 26 F.(2d) 187, 188 (C. C. A. 2), certiorari denied 278 U. S. 615, 49 S. Ct. 19, 73 L. Ed. 538. In view of the above determination of the second point, there is no place for consideration of the third point, involving special assessments, here urged. The order of the Board is affirmed, and the petition for review ordered to be dismissed. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

songer_appel1_3_2

I

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. UNITED STATES of America, Appellant, v. 2,974.49 ACRES OF LAND, MORE OR LESS, IN CLARENDON COUNTY, SOUTH CAROLINA, and South Carolina Public Service Authority, et al., Appellees. No. 8618. United States Court of Appeals Fourth Circuit. Argued June 11, 1962. Decided Sept. 17, 1962. Edmund B. Clark, Atty., Dept, of Justice (Ramsey Clark, Asst. Atty. Gen., Terrell L. Glenn, U. S. Atty., Thomas P. Simpson, Asst. U. S. Atty., and Roger P. Marquis, Atty., Dept, of Justice, on the brief), for appellant. Walton J. McLeod, Jr., Waterboro, S. C. (W. D. Simpson, Moncks Corner, S. C., and Rogers & Riggs, Manning, S. C., on brief), for appellees. Before SOPER and BRYAN, Circuit Judges, and LARKINS, District Judge. LARKINS, District Judge. On March 29, 1956 the South Carolina Public Service Authority (hereinafter referred to as the Authority) granted to the United States of America (hereinafter referred to as United States) a three-month option to purchase for the price of $105,000. approximately 3,000 acres of land in Clarendon County, South Carolina, for and on behalf of the Santee National Wildlife Refuge Project. No time limit for performance of the contract, if the option were accepted, was set forth in the option contract. On October 26, 1956 the option was extended to January 29,1957 and the United States exercised the option in writing on December 21, 1956. No further correspondence ensued between the parties until January 20, 1958 when the Authority advised the United States that it considered the delay of more than one year in making payment to be unreasonable and declared the option to be terminated. The United States replied on January 28, 1958 that it would complete acquisition. On May 6, 1958 the Authority stated that it definitely would not convey the property pursuant to the option contract. On November 15, 1958 the United States filed a complaint in condemnation and a Declaration of Taking and deposited with the court, the sum of $105,000. as estimated compensation. An order for immediate possession was entered on February 13, 1959. In the complaint reference was made to the option agreement wherein the parties had agreed upon a purchase price of $105,000. The Authority’s motion for summary judgment to dismiss the complaint and vacate the Declaration of Taldng was denied. The United States then moved for judgment on the pleadings and the district court denied the motion while deciding that a question of fact to be determined by a jury existed as to whether the United States had complied with its obligations under the. option contract. In October 1961, trial was held upon the sole issue of whether the United States had complied with the terms of the option contract to perform its obligations within a reasonable time. The jury returned as its verdict, that the delay of the United States in meeting its obligations under the option contract was unreasonable. The district court thereupon entered an order dismissing the complaint, vacating the Declaration of Taking and vacating the order for immediate possession with the comment that the jury verdict rendered the option contract invalid, and inasmuch as the option contract was inseparably involved in the pleadings and issues in this action, the action could not continue without defendant suffering grave prejudice. The district court was not in error in submitting to the jury the issue of whether the United States’ delay in fulfilling its obligations under the option contract was reasonable. The complaint specifically set forth the option contract as the basis of the price ($105,000.) alleged to be just compensation for the taking of the Authority’s property. This fact coupled with the apparent lethargy on the part of the United States to carry out its obligations under the option contract between December 26, 1956 and May 6, 1958 was sufficient basis for determining that a question of fact existed as to whether the United States had acted within a reasonable time under the option contract and that said question was sufficiently pertinent to this action to be submitted to a jury. In refusing the Authority’s motion for a summary judgment and in submitting to the jury the question whether the United States had acted within a reasonable time the Judge followed the established procedure. The rule is that the vendor in a contract for the sale of land in which the time for carrying out the contract is not specified, cannot put an end to the contract without notice to the vendee of his intention to do so and affording the vendee a reasonable time to carry out his contract obligations. See United States v. Stott et ux, 140 F.2d 941 (8th Cir., 1944). The Judge was also correct in instructing the jury that, in the determination of what constitutes a reasonable time within which the vendee must act after notice of rescission, the nature of the subject matter, the object of the contract and the situation and conduct of the parties and all other circumstances should be taken into consideration. What is a reasonable time must be computed from the receipt of the notice of rescission, but in considering this question all the circumstances should be taken into consideration, including those which occurred prior to the time when the notice of rescission was received. The district court determined in its Opinion and Order of July 29, 1960 that this condemnation was duly authorized by federal statutes. Nevertheless, the district court in its order of October 30, 1961 dismissed the condemnation proceeding upon the grounds that the option contract, found to be invalid by the jury, was so intertwined in the condemnation complaint and the exhibits attached thereto that to leave the complaint stand would be prejudicial to the defendant whenever the question of just compensation was considered. The district court went one step further and stated that even an amended complaint would be inadequate to prevent the defendant suffering prejudice. We think that in this action the court went too far. Once it had determined that the condemnation was authorized by statute and that the statutory requirements had been complied with the court was without power to dismiss the condemnation proceedings and Declaration of Taking. United States v. Hayes et al., 172 F.2d 677 (9th Cir., 1949). The court should have permitted the Government to amend the pleadings so as to eliminate reference to the agreement of option and to permit the proceeding to go on on the basis of the Government’s general power of eminent domain. We think, however, that the option contract may be considered in the trial of the condemnation case which will take place upon the remand and that at this trial the Government may offer the option contract in proof of the value of the property condemned. Since the option here is between the condemnor and the condemnee, the date of the execution of the option and the extension thereof by the Authority was not too remote in time as to preclude the admissibility of the option and the option price as having some probative effect of the value two years later when the formal condemnation proceedings were filed. The jury, however, should be specifically instructed that they should ascertain the value of the property as of November 15, 1958 when the condemnation proceeding and the Declaration of Taking were filed and the money was paid into court; and they should be further instructed that they are not bound by the purchase price agreed upon on March 29, 1956 and extended by the subsequent agreement of October 26, 1956 but that they should consider the agreement as evidence of the value of the property on those dates together with any evidence that may be ' offered of a change in valuation between the date on which the agreement was made and the date when the condemnation proceeding was filed. The Order entered in this action by the district court on October 30, 1961 dismissing the complaint, vacating the Declaration of Taking and vacating the order for immediate possession is hereby reversed and the proceeding remanded to the district Court with instructions to permit the amendment of the complaint of condemnation and to permit the proceeding in condemnation to proceed in the manner hereinbefore outlined so as to determine the issue of just compensation. Affirmed in part and reversed in part. Case remanded for proceedings in accord with this opinion. Question: This question concerns the first listed appellant. 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:

sc_adminaction_is

B

What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. SUGARMAN, ADMINISTRATOR, NEW YORK CITY HUMAN RESOURCES ADMINISTRATION, et al. v. DOUGALL et al. No. 71-1222. Argued January 8, 1973 — Decided June 25, 1973 Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, BreNnan, Stewart, White, Marshall, and Powell, JJ., joined. RehNQUIst, J., filed a dissenting opinion, post, p. 649. Samuel A. Hirshowits, First Assistant Attorney General of New York, argued the cause for appellants. With him on the briefs were Louis J. Lefkowitz, Attorney General, and Judith A. Gordon, Assistant Attorney General. Lester Evens argued the cause and filed a brief for appellees. J. Shane Creamer, Attorney General, and James R. Adams, Deputy Attorney General, filed a brief for the Commonwealth of Pennsylvania as amicus curiae urging affirmance. Mb. Justice Blackmun delivered the opinion of the Court. Section 53 (1) of the New York Civil Service Law reads: “Except as herein otherwise provided, no person shall be eligible for appointment for any position in the competitive class unless he is a citizen of the United States.” The four appellees, Patrick McL. Dougall, Esperanza Jorge, Teresa Vargas, and Sylvia Castro, are federally registered resident aliens. When, because of their alien-age, they were discharged in 1971 from their competitive civil service positions with the city of New York, the appellees instituted this class action challenging the constitutionality of § 53. The named defendants, and appellants here, were the Administrator of the city’s Human Resources Administration (HRA), and the city’s Director of Personnel and Chairman of its Civil Service Commission. The appellees sought (1) a declaration that the statute was invalid under the First and Fourteenth Amendments, (2) injunctive relief against any refusal, on the ground of alienage, to appoint and employ the appellees, and all persons similarly situated, in civil service positions in the competitive class, and (3) damages for lost earnings. A defense motion to dismiss for want of jurisdiction was denied by Judge Tenney, 330 F. Supp. 265 (SDNY 1971). A three-judge court was convened. That court ruled that the statute was violative of the Fourteenth Amendment and the Supremacy Clause, and granted injunctive relief. 339 F. Supp. 906 (SDNY 1971). Judge Lumbard joined the court’s opinion and judgment, but wrote separately in concurrence. Id., at 911. Probable jurisdiction was noted. 407 U. S. 908 (1972). I Prior to December 28, 1970, the appellees were employed by nonprofit organizations that received funds through HRA from the United States Office of Economic Opportunity. These supportive funds ceased to be available about that time and the organizations, with approximately 450 employees, including the appellees and 16 other noncitizens, were absorbed by the Manpower Career and Development Agency (MCDA) of HRA. The appellant Administrator advised the transferees that they would be employed by the city. The appellees in fact were so employed in MCDA. In February, however, they were informed that they were ineligible for employment by the city and that they would be dismissed under the statutory mandate of § 53 (1). Shortly thereafter, they were discharged from MCDA solely because of their alienage. Appellee Dougall was born in Georgetown, Guyana, in September 1927. He has been a resident of New York City since 1964. He was employed by MCDA as an administrative assistant in the staff Development Unit. Appellee Jorge was born in November 1948 in the Dominican Republic. She has been a resident of New York City since 1967. She was employed by the Puerto Rican Forum as a clerk-typist and, later, as a human resources technician. She worked in the latter capacity for MCDA. Appellee Vargas was born in the Dominican Republic in June 1946. She has been a resident of New York City since 1963. She worked as a clerk-typist for the Puerto Rican Forum and in the same capacity for MCDA. Appellee Castro was born in El Salvador in June 1944. She has resided in New York City since 1967. She was employed by the Puerto Rican Forum as an assistant counselor and then as a human resources technician and worked in the latter capacity for MCDA. The record does not disclose that any of the four appellees ever took any step to attain United States citizenship. The District Court, in reaching its conclusion that § 53 was unconstitutional under the Fourteenth Amendment, placed primary reliance on this Court’s decisions in Graham v. Richardson, 403 U. S. 365 (1971), and Takahashi v. Fish Comm’n, 334 U. S. 410 (1948), and, to an extent, on Purdy & Fitzpatrick v. State, 71 Cal. 2d 566, 456 P. 2d 645 (1969). On the basis of these cases, the court also concluded that § 53 was in conflict with Congress’ comprehensive regulation of immigration and naturalization because, in effect, it denied appellees entrance to, and abode in, New York. Accordingly, the court held, § 53 encroached upon an exclusive federal power and was constitutionally impermissible under Art. VI, cl. 2, of the Constitution. II As is so often the case, it is important at the outset to define the precise and narrow issue that is here presented. The Court is faced only with the question whether New York’s flat statutory prohibition against the employment of aliens in the competitive classified civil service is constitutionally valid. The Court is not asked to decide whether a particular alien, any more than a particular citizen, may be refused employment or discharged on an individual basis for whatever legitimate reason the State might possess.. Neither is the Court reviewing a legislative scheme that bars some or all aliens from closely defined and limited classes of public employment on a uniform and consistent basis. The New York scheme, instead, is indiscriminate. The general standard is enunciated in the State’s Constitution, Art. Y, § 6, and is to the effect that appointments and promotions in the civil service “shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive.” In line with this rather flexible constitutional measure, the classified service is divided by statute into four classes. New York Civil Service Law § 40. The first is the exempt class. It includes, generally, the higher offices in the state executive departments, certain municipal officers, certain judicial employees, and positions for which a competitive or noncompetitive examination may be found to be impracticable. The exempt class contains no citizenship restriction whatsoever. § 41. The second is the noncompetitive class. This includes positions, not otherwise classified, for which a noncompetitive examination would be practicable. There is no citizenship requirement. § 42. The third is the labor class. This includes unskilled laborers holding positions for which competitive examinations would be impracticable. No alienage exclusion is imposed. § 43. The fourth is the competitive class with which we are here concerned. This includes all positions for which it is practicable to determine merit and fitness by a competitive examination. § 44. Only citizens of the United States may hold positions in this class. § 53. The limits of these several classes, particularly the competitive class from which the appellees were deemed to be disqualified, are not readily defined. It would appear, however, that, consistent with the broad scope of the cited constitutional provision, the competitive class reaches various positions in nearly the full range of work tasks, that is, all the way from the menial to the policy making. Apart from the classified civil service, New York has an unclassified service. § 35. This includes, among others, all elective offices, offices filled by legislative appointment, employees of the legislature, various offices filled by the Governor, and teachers. No citizenship requirement is present there. Other constitutional and statutory citizenship requirements round out the New York scheme. The constitution of the State provides that voters, Art. II, §1, members of the legislature, Art. Ill, § 7, the Governor and Lieutenant-Governor, Art. IV, § 2, and the Comptroller and Attorney-General, Art. V, § 1, are to be United States citizens. And Public Officers Law § 3 requires that any person holding “a civil office” be a citizen of the United States. A “civil office” is apparently one that “possesses any of the attributes of a public officer or . . . involve [s] some portion of the soverign [sic] power.” 1967 Op. N. Y. Atty. Gen. 60; New York Post Corp. v. Moses, 12 App. Div. 2d 243, 250, 210 N. Y. S. 2d 88, 95, rev’d on other grounds, 10 N. Y. 2d 199, 176 N. E. 2d 709 (1961). We thus have constitutional provisions and a number of statutes that, together, constitute New York’s scheme for the exclusion of aliens from public employment. The present case concerns only § 53 of the Civil Service Law. The section’s constitutionality, however, is to be judged in the context of the State’s broad statutory framework and the justifications the State presents. III It is established, of course, that an alien is entitled to the shelter of the Equal Protection Clause. Graham v. Richardson, 403 U. S. 365, 371 (1971); Truax v. Raich, 239 U. S. 33, 39 (1915); Wong Wing v. United States, 163 U. S. 228, 238 (1896); Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886). See In re Griffiths, post, p. 7l7. This protection extends, specifically, in the words of Mr. Justice Hughes, to aliens who “work for a living in the common occupations of the community.” Truax v. Raich, 239 U. S., at 41. A. Appellants argue, however, that § 53 does not violate the equal protection guarantee of the Fourteenth Amendment because the statute “establishes a generic classification reflecting the special requirements of public employment in the career civil service.” The distinction drawn between the citizen and the alien, it is said, “rests on the fundamental concept of identity between a government and the members, or citizens, of the state.” The civil servant “participates directly in the formulation and execution of government policy,” and thus must be free of competing obligations to another power. The State’s interest in having an employee of undivided loyalty is substantial, for obligations attendant upon foreign citizenship “might impair the exercise of his judgment or jeopardize public confidence in his objectivity.” Emphasis is placed on our decision in United Public Workers v. Mitchell, 330 U. S. 75 (1947), upholding the Hatch Act and its proscription of political activity by certain public employees, and it is said that the public employer “has broad discretion to establish qualifications for its employees related to the integrity and efficiency of the operations of government.” It is at once apparent, however, that appellants’ asserted justification proves both too much and too little. As the above outline of the New York scheme reveals, the State’s broad prohibition of the employment of aliens applies to many positions with respect to which the State’s proffered justification has little, if any, relationship. At the same time, the prohibition has no application at all to positions that would seem naturally to fall within the State’s asserted purpose. Our standard of review of statutes that treat aliens differently from citizens requires a greater degree of precision. In Graham v. Richardson, 403 U. S., at 372, we observed that aliens as a class “are a prime example of a ‘discrete and insular’ minority (see United States v. Carolene Products Co., 304 U. S. 144, 152-153, n. 4 (1938)),” and that classifications based on alienage are “subject to close judicial scrutiny.” And as long as a quarter century ago we held that the State’s power “to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.” Takahashi v. Fish Comm’n, 334 U. S., at 420. We therefore look to the substantiality of the State’s interest in enforcing the statute in question, and to the narrowness of the limits within which the discrimination is confined. Applying this standard to New York’s purpose in confining civil servants in the competitive class to those persons who have no ties of citizenship elsewhere, § 53 does not withstand the necessary close scrutiny. We recognize a State’s interest in establishing its own form of government, and in limiting participation in that government to those who are within “the basic conception of a political community.” Dunn v. Blumstein, 405 U. S. 330, 344 (1972). We recognize, too, the State’s broad power to define its political community. But in seeking to achieve this substantial purpose, with discrimination against aliens, the means the State employs must be precisely drawn in light of the acknowledged purpose. Section 53 is neither narrowly confined nor precise in its application. Its imposed ineligibility may apply to the “sanitation man, class B,” Perotta v. Gregory, 4 Misc. 2d 769, 158 N. Y. S. 2d 221 (1957), to the typist, and to the office worker, as well as to the person who directly participates in the formulation and execution of important state policy. The citizenship restriction sweeps indiscriminately. Viewing the entire constitutional and statutory framework in the light of the State’s asserted interest, the great breadth of the requirement is even more evident. Sections 35 and 41 of the Civil Service Law, relating generally to persons holding elective and high appointive offices, contain no citizenship restrictions. Indeed, even § 53 permits an alien to hold a classified civil service position under certain circumstances. In view of the breadth and imprecision of § 53 in the context of the State’s interest, we conclude that the statute does not withstand close judicial scrutiny. B. Appellants further contend, however, that the State’s legitimate interest is greater than simply limiting to citizens those high public offices that have to do with the formulation and execution of state policy. Understandably relying on this Court’s decisions in Crane v. New York, 239 U. S. 195 (1915), Heim v. McCall, 239 U. S. 175 (1915), and Clarke v. Deckebach, 274 U. S. 392 (1927), appellants argue that a State constitutionally may confine public employment to citizens. Mr. Justice (then Judge) Cardozo accepted this “special public interest” argument because of the State’s concern with “the restriction of the resources of the state to the advancement and profit of the members of the state.” People v. Crane, 214 N. Y. 154, 161, 108 N. E. 427, 429, aff’d, 239 U. S. 195 (1915). We rejected that approach, however, in the context of public assistance in Graham, where it was observed that “the special public interest doctrine was heavily grounded on the notion that '[wjhatever is a privilege, rather than a right, may be made dependent upon citizenship.’ People v. Crane .... But this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a 'right’ or as a 'privilege.’ ” 403 U. S., at 374. See also Sherbert v. Verner, 374 U. S. 398, 404 (1963); Shapiro v. Thompson, 394 U. S. 618, 627 n. 6 (1969); Goldberg v. Kelly, 397 U. S. 254, 262 (1970); Bell v. Burson, 402 U. S. 535, 539 (1971). Appellants argue that our rejection of the special-public-interest doctrine in a public assistance case does not require its rejection here. That the doctrine has particular applicability with regard to public employment is demonstrated, according to appellants, by the decisions in Crane and Heim that upheld, under Fourteenth Amendment challenge, those provisions of the New York Labor Law that confined employment on public works to citizens of the United States. See M. Konvitz, The Alien and the Asiatic in American Law, c. 6 (1946). We perceive no basis for holding the special-public-interest doctrine inapplicable in Graham and yet applicable and controlling here. A resident alien may reside lawfully in New York for a long period of time. He must pay taxes. And he is subject to service in this country’s Armed Forces. 50 U. S. C. App. § 454 (a). See Astrup v. Immigration Service, 402 U. S. 509 (1971). The doctrine, rooted as it is in the concepts of privilege and of the desirability of confining the use of public resources, has no applicability in this case. To the extent that Crane, Heim, and Clarke intimate otherwise, they were weakened by the decisions in Takahashi and Graham, and are not to be considered as controlling here. C. The State would tender other justifications for § 53’s bar to employment of aliens in the competitive civil service. It is said that career civil service is intended for the long-term employee, and that the alien, who is subject to deportation and, as well, to conscription by his own country, is likely to remain only temporarily in a civil service position. We fully agree with the District Court’s response to this contention: “There is no offer of proof on this issue and [appellants] would be hard pressed to demonstrate that a permanent resident alien who has resided in New York or the surrounding area for a number of years, as have [appellees], and whose family also resides here, would be a poorer risk for a career position in New York . . . than an American citizen who, prior to his employment with the City or State, had been residing in another state.” 339 F. Supp., at 909. Appellants further assert that employment of aliens in the career civil service would be inefficient, for when aliens eventually leave their positions, the State will have the expense of hiring and training replacements. Even if we could accept the premise underlying this argument — that aliens are more likely to leave their work than citizens — and assuming that this rationale could be logically confined to the classified competitive civil service, the State’s suggestion does not withstand examination. As we stated in Graham, noting the general identity of an alien’s obligations with those of a citizen, the “ 'justification of limiting expenses is particularly inappropriate and unreasonable when the discriminated class consists of aliens.’ ” 403 U. S., at 376. We hold that § 53, which denies all aliens the right to hold positions in New York’s classified competitive civil service, violates the Fourteenth Amendment’s equal protection guarantee. Because of this conclusion, we need not reach the issue whether the citizenship restriction is in conflict with Congress’ comprehensive regulation of immigration and naturalization. See Graham v. Richardson, 403 U. S., at 376-380. IV While we rule that § 53 is unconstitutional, we do not hold that, on the basis of an individualized determination, an alien may not be refused, or discharged from, public employment, even on the basis of noncitizenship, if the refusal to hire, or the discharge, rests on legitimate state interests that relate to qualifications for a particular position or to the characteristics of the employee. We hold only that a flat ban on the employment of aliens in positions that have little, if any, relation to a State’s legitimate interest, cannot withstand scrutiny under the Fourteenth Amendment. Neither do we hold that a State may not, in an appropriately defined class of positions, require citizenship as a qualification for office. Just as “the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections,” Oregon v. Mitchell, 400 U. S. 112, 124-125 (1970) (footnote omitted) (opinion of Black, J.); see id., at 201 (opinion of Harlan, J.), and id., at 293-294 (opinion of Stewart, J.), “[e]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen.” Boyd v. Thayer, 143 U. S. 135, 161 (1892). See Lather v. Borden, 7 How. 1, 41 (1849); Pope v. Williams, 193 U. S. 621, 632-633 (1904). Such power inheres in the State by virtue of its obligation, already noted above, “to preserve the basic conception of a political community.” Dunn v. Blumstein, 405 U. S., at 344. And this power and responsibility of the State applies, not only to the qualifications of voters, but also to persons holding state elective or important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government. There, as Judge Lumbard phrased it in his separate concurrence, is “where citizenship bears some rational relationship to the special demands of the particular position.” 339 F. Supp., at 911. We have held, of course, that such state action, particularly with respect to voter qualifications, is not wholly immune from scrutiny under the Equal Protection Clause. See, for example, Kramer v. Union School District, 395 U. S. 621 (1969). But our scrutiny will not be so demanding where we deal with matters resting firmly within a State’s constitutional prerogatives. Id., at 625; Carrington v. Rash, 380 U. S. 89, 91 (1965). This is no more than a recognition of a State’s historical power to exclude aliens from participation in its democratic political institutions, Pope v. Williams, 193 U. S., at 632-634; Boyd v. Thayer, 143 U. S., at 161, and a recognition of a State’s constitutional responsibility for the establishment and operation of its own government, as well as the qualifications of an appropriately designated class of public office holders. U. S. Const. Art. IV, §4; U. S. Const. Arndt. X; Luther v. Borden, supra; see In re Duncan, 139 U. S. 449, 461 (1891). This Court has never held that aliens have a constitutional right to vote or to hold high public office under the Equal Protection Clause. Indeed, implicit in many of this Court’s voting rights decisions is the notion that citizenship is a permissible criterion for limiting such rights. Kramer v. Union School District, 395 U. S., at 625; Reynolds v. Sims, 377 U. S. 533, 567, 568 (1964); Harper v. Virginia Board of Elections, 383 U. S. 663, 666-667 (1966); Carrington v. Rash, 380 U. S., at 91, 93-94, 96; Lassiter v. Northampton Election Board, 360 U. S. 45, 50-51 (1959); Mason v. Missouri, 179 U. S. 328, 335 (1900). A restriction on the employment of noncitizens, narrowly confined, could have particular relevance to this important state responsibility, for alienage itself is a factor that reasonably could be employed in defining “political community.” The judgment of the District Court is Affirmed. The restriction has its statutory source in Laws of New York, 1939, c. 767, § 1. We are advised that the legislation was declarative of an administrative practice that had existed for many years. Tr. of Oral Arg. 43, 45. Section 53 (2) of N. Y. Civ. Serv. Law (Supp. 1972-1973) makes a temporary exception to the citizenship requirement: “2. Notwithstanding any of the provisions of this chapter or of any other law, whenever a department head or appointing authority deems that an acute shortage of employees exists in any particular class or classes of positions by reason of a lack of a sufficient number of qualified personnel available for recruitment, he may present evidence thereof to the state or municipal civil service commission having jurisdiction which, after due inquiry, may determine the existence of such shortage and waive the citizenship requirement for appointment to such class or classes of positions. The state commission or such municipal commission, as the case may be, shall annually review each such waiver of the citizenship requirement, and shall revoke any such waiver whenever it finds that a shortage no longer exists. A non-citizen appointed pursuant to the provisions of this section shall not be eligible for continued employment unless he diligently prosecutes the procedures for citizenship.” It is to be observed that an appointment under this exception permits the alien to continue his employment only until, on annual review, it is deemed that “a shortage no longer exists.” And, in any event, the alien ‘'shall not be eligible for continued employment unless he diligently prosecutes the procedures for citizenship.” The court found jurisdiction in the Civil Rights Statutes, 28 U. S. C. §§ 1343 (3) and (4). 339 F. Supp. 906, 907 n. 5. It held that the suit was properly maintainable as a class action and defined the class as consisting of “all permanent resident aliens residing in New York State who, but for the enforcement of Section 53, would otherwise be eligible to compete for employment in the competitive class of Civil Service.” Id., at 907 n. 4. Affidavit of Harold 0. Basden, Director of Personnel of the Human Resources Administration, App. 31-33. Section 45 of the New York Civil Service Law, applicable to employees of a private institution acquired by the State or a public agency, contains a restriction, similar to that in §53 (1), against the employment of an alien in a position classified in the competitive class. The appellants in their answer alleged that appellee Castro was terminated for the additional reason that she lacked sufficient experience to qualify for the position of senior human resources technician. App. 49. The three-judge court in its order, App. 93, excluded appellee Castro from the recognized class. That exclusion is not contested here. Brief for Appellants 17. Id., at 22. Id., at 23. Ibid. Id., at 13. In the past, the Court has invoked the special-public-interest doctrine to uphold statutes that, in the absence of overriding treaties, limit the right of noncitizens to exploit a State’s natural resources, McCready v. Virginia, 94 U. S. 391 (1877), Patsone v. Pennsylvania, 232 U. S. 138 (1914); to inherit real property, Hauenstein v. Lynham, 100 U. S. 483 (1880), Blythe v. Hinckley, 180 U. S. 333 (1901); and to acquire and own land, Terrace v. Thompson, 263 U. S. 197 (1923), Porterfield v. Webb, 263 U. S. 225 (1923), Webb v. O’Brien, 263 U. S. 313 (1923), Frick v. Webb, 263 U. S. 326 (1923); but see Oyama v. California, 332 U. S. 633 (1948). We are aware that citizenship requirements are imposed in certain aspects of the federal service. See 5 U. S. C. §3301; Exec. Order No. 10577, 19 Fed. Reg. 7521, §2.1 (1954); 5 CFR §§ 338.101, 302.203 (g) (1973); and, for example, Treasury, Postal Service, and General Government Appropriation Act, 1972, § 602, Pub. L. 92-49, 85 Stat. 122, and Public Works Appropriations Act, 1971, § 502, Pub. L. 91-439, 84 Stat. 902. In deciding the present case, we intimate no view as to whether these federal citizenship requirements are or are not susceptible of constitutional challenge. See Jalil v. Hampton, 148 U. S. App. D. C. 415, 460 F. 2d 923, cert. denied, 409 U. S. 887 (1972); Comment, Aliens and the Civil Service: A Closed Door?, 61 Geo. L. J. 207 (1972). In congressional debates leading to the adoption of the Fourteenth Amendment, there is clear evidence that Congress not only knew that as a matter of local practice aliens had not been granted the right to vote, but that under the amendment they did not receive a constitutional right of suffrage or a constitutional right to participate in the political process of state government, and that, indeed, the right to vote and the concomitant right of participation in the political process were matters of local law. Cong. Globe, 39th Cong., 1st Sess., 141-142, 2766-2767 (1866). It is noteworthy, as well, that the 40th Congress considered and very nearly proposed a version of the Fifteenth Amendment that expressly would have prohibited discriminatory qualifications not only for voting but also for holding office. The provision was struck in conference. It is evident from the debate that, for whatever motive, its opponents wanted the States to retain control over the qualifications for office. Cong. Globe, 40th Cong., 3d Sess., at 1425-1426, 1623-1633 (1869). And, of course, the Fifteenth Amendment applies by its terms only to “citizens.” Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:

songer_direct2

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. Aida Guzman De FONT et al., Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees. No. 71-1124. United States Court of Appeals, First Circuit. Heard Nov. 16, 1971. Decided Jan. 6, 1972. Antonio Montalvo-Nazario, San Juan, P. R., with whom Segurola & Montalvo, San Juan, P. R., was on brief, for plaintiffs-appellants. Morton Hollander, Atty., Dept. of Justice, with whom L. Patrick Gray, III, Asst. Atty. Gen., Julio Morales-Sanchez, U. S. Atty. and Robert M. Feinson, Atty., Dept. of Justice, were on brief, for defendants-appellees. Before COFFIN, Circuit Judge, VAN OOSTERHOUT, Senior Circuit Judge, and STEPHENSON, Circuit Judge. Of the Eighth Circuit, sitting by designation. PER CURIAM. Plaintiffs appeal from dismissal of their complaint under the Federal Tort Claims Act (28 U.S.C. §§ 1346(b), 2674) for damages sustained as a result of malpractice injury to their deceased husband and father. The trial court dismissed on the basis of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The complaint alleges that the treatment evaluation and medical care given decedent by various army physicians and hospitals was “deficient, negligent and unwarranted, causing extreme pain, mental disorder and anguish” to deceased and his wife, and that “plaintiffs have suffered the loss of companionship, the loss of father’s ability to produce income and support to both plaintiffs, which are calculated in the amount of $884,000.” Initially, we observe that the plaintiffs, in opposition to the Government’s motion to dismiss, contend Feres does not control because plaintiffs were not members of the Armed Forces at the time of the negligent act and the injuries received by both plaintiffs did not arise out of', or in the course of, activity incident to service because both plaintiffs were civilians at the time the injuries and damages were suffered. Plaintiffs contend that as wife and child of decedent they have a separate and independent cause of action for mental suffering and anguish under the Civil Code of Puerto Rico. 31 L.P.R.A. § 5141. See Commercial Union Insurance Company v. Gonzalez Rivera, 358 F.2d 480, 482-483. (C.A.5 1966). The mere fact that the cause of action is not derivative under local law, but is an original and distinct cause of action granted to the heirs and personal representatives to recover damages sustained by them by reason of the wrongful death of the decedent, does not remove it from the prohibition of Feres. Van Sickel v. United States, 285 F.2d 87 (C.A.9 1960); United States v. Lee, 400 F.2d 558 (C.A.9 1968), cert, denied, 393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695 (1969). In Feres, 340 U.S. at p. 143, 71 S.Ct. 153, the Supreme Court made it clear that an accident of geography would not be determinative of the applicable law. The controlling rule is that the Government is not liable under the Act “for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service,” Feres at p. 146, 71 S.Ct. at 159. In the case at hand, the damage claim for loss of “companionship,” “father’s ability to produce income and support to both plaintiffs” is, under the allegations of the complaint, incident to decedent’s service. On this basis the trial court was fully justified in dismissing the complaint. However, we further note that in appellant’s brief and argument before this Court it is claimed that appellant wife “was present throughout the treatment and witnessed and suffered the grave consequences of the inadequate care given to her husband.” Although appellants’ prayer for damages refers only to “loss of companionship” and to loss of the decedent’s “ability to produce income,” appellants also apparently raise some claim of a separate and independent tort to the wife based on mental anguish arising from her observations of the inadequate care given her deceased husband. See Prosser, The Law of Torts, 181 (2d ed. 1955). Even if this claim were adequately specified and damages claimed therefor, we are satisfied that this allegation would not remove the incident-to-service limitation of Feres. We would be unwilling to depart therefrom even if we were able to do so. Cf. Hall v. United States, 451 F.2d 353 (1st Cir. 1971). Affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:

songer_circuit

F

What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. Marcus N. BRESSLER, Plaintiff-Appellee, v. FORTUNE, A DIVISION OF TIME INC., Defendant Appellant. No. 91-5601. United States Court of Appeals, Sixth Circuit. Argued Jan. 23, 1992. Decided Aug. 6, 1992. Rehearing and Rehearing En Banc Denied Oct. 16, 1992. Janet Mayfield Hogan (briefed), Knoxville, Tenn., William H. Ogle, Ormond Beach, Fla., Paul N. Minkoff (argued), Klovsky, Kuby & Harris, Philadelphia, Pa., for plaintiff-appellee. Floyd Abrams (argued & briefed), Dean Ringel, Cahill, Gordon and Reindel, New York City, R. Louis Crossley, Jr., Long, Ragsdale & Waters, Knoxville, Tenn., for defendant-appellant. Laura Handman (briefed), New York City, for Amici Curiae. Before: GUY, NORRIS, and BATCHELDER, Circuit Judges. RALPH B. GUY, Jr., Circuit Judge. Defendant, Fortune Magazine, appeals a $550,000 jury verdict in a libel suit brought by plaintiff, Marcus Bressler. Bressler’s claim stemmed from a 1986 Fortune article which reported allegations that Bressler, an official of the Tennessee Valley Authority, had attempted to cover up safety violations at TVA’s Watts Bar nuclear plant. Fortune argues that Bressler, a public official, failed to establish that the article’s statements were false and that the reporters acted with actual malice. Fortune also contends that the district court erred in instructing the jury that Bressler need only prove the article’s falsity by a “preponderance of the evidence,” rather than by “clear and convincing” evidence. Our thorough review of the record— which details the information provided by the various sources on which the Fortune reporters relied — reveals that the evidence falls short of demonstrating that the reporters realized their statements were false or had serious doubts as to the truth of their statements. We thus reach the contest over the article’s “falsity” only tangentially; we reach not at all the debate over the proper standard of proof for falsity in a public official’s libel suit. On the actual malice issue alone, we reverse and remand for entry of judgment in favor of Fortune. I. In October 1986, Fortune published an article focusing mainly on federal officials’ allegations that TVA’s chief of nuclear operations (not the plaintiff here) may have violated conflict-of-interest and salary rules. Seven of the article’s 33 paragraphs, however, reported on investigators’ “allegations about an attempted cover-up of safety questions at the Watts Bar plant.” Brian Dumaine, Nuclear Scandal Shakes the TVA, Fortune, Oct. 27, 1986, at 44. The article explained that Howard Hasten, an “authorized nuclear inspector” with Hartford Steam Boiler, which had contracted with TVA to inspect the construction of the Watts Bar plant, discovered that welds in pipes carrying water to and from the nuclear reactor containment area had not been tested in accordance with the governing engineering code. At that stage of construction, performing the necessary tests and inspection would have been extremely time-consuming and costly, since many of the pipes had already been insulated and installed. The article further stated that TVA had issued a safety report which recommended that the pipes be “used as is.” Hasten initially refused to sign this report, since the lack of proper testing violated minimum safety standards. “A burst pipe could set off a serious nuclear accident,” according to the article. The Fortune story then noted that a “campaign ... to force Hasten to sign the report” was mounted, and that an internal investigation at TVA revealed that managers at TVA’s engineering codes and standards office (of which plaintiff Bressler is a member) called Haston’s superiors at Hartford to complain about Haston’s intransigence. Haston’s supervisor, Harold Robi-son, pressured Haston to sign; Haston finally did so, but wrote that his signature was only at Robison’s direction. The article went on to state that TVA investigator Jerry Smith had received anonymous telephone calls about pressure on Hartford inspectors and that TVA had received an anonymous letter threatening to publicize the welding problems unless TVA persuaded Hartford to increase its inspectors’ salaries. “According to TVA investigators,” the article continued, “Marcus Bres-sler ... tried to cover up the breach of safety standards” and “warned Hartford Steam Boiler to get its inspectors in line or TVA would not renew its inspection con-tract_” The TVA Board of Directors assigned another internal investigator, Mansour Guity, to look into the origin of the anonymous extortion letter. Guity was unable to link the letter to Hartford inspectors, but, according to the article, Guity “did find out about the pressure Bressler had exerted to cover up the safety violation.” Investigators Smith and Guity later complained to the U.S. Labor Department that TVA management had harassed and intimidated them for voicing their safety concerns. The Labor Department ruled in their favor. The Fortune story added that the “Hartford Steam Boiler incident was confirmed in a draft report by the Nuclear Regulatory Commission’s office of investigation.” The article attributed this information to “congressional sources.” At Bressler’s ensuing libel trial, Fortune introduced the final report of the Nuclear Regulatory Commission which concluded, among other things, that TVA managers might have pressured Hartford to accept the “use as is” proposal in the report about the pipe welds even though the welds violated code requirements. Fortune also introduced the notes the reporters took during interviews with the private and federal investigators, who had identified Bressler as the source of the pressure, and the corroborating deposition testimony of two former TVA officials. The reporters’ testimony included explanations of how they developed the story and subjected it to the magazine’s pre-publication fact-checking process.. A journalism expert for plaintiff testified, over defendant’s objection, that the Fortune reporters’ investigation and writing “fell far below the standard of journalism” and that the reporters “knew [the article] was false.” We address this evidence more fully below. The jury found that the statements about Bressler were false and. that the reporters had acted with actual malice. Bressler was awarded $250,000 in compensatory damages and $300,000 in punitive damages. The district court denied Fortune’s. JNOV and new trial motions, and Fortune now appeals. II. The trial judge determined that Bressler was a public official; as such, Bressler could prevail only by showing that Fortune published the article with actual malice, New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964), and by demonstrating that the “gist” of the article was false, Masson v. New Yorker Magazine, Inc., — U.S. -, -, 111 S.Ct. 2419, 2433, 115 L.Ed.2d 447 (1991). In a recent public-figure libel case summarizing accepted formulations of the “actual malice” test, the Supreme Court stated that the test requires at a minimum that the statements were made with a reckless disregard for the truth. And although the concept of “reckless disregard” “cannot be fully encompassed in one infallible definition,” we have made clear that the . defendant must have made the false publication with a “high degree of awareness of ... probable falsityf.]” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667, 109 S.Ct. 2678, 2685,105 L.Ed.2d 562 (1989) (citations omitted). The Court emphasized that the inquiry is “subjective,” focusing on whether the defendant “ ‘in fact entertained serious doubts as to the truth of his publication.’ ” Id. at 688, 109 S.Ct. at 2696 (citation omitted). Actual malice, defined in this way, must be established by “clear and convincing proof.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). The question whether the record may support a finding of actual malice is a question of law. Harte-Hanks, 491 U.S, at 685, 109 S.Ct. at 2694. The Harte-Hanks Court also set forth the duty of an appellate court considering a case such as this one. In determining whether the constitutional standard has been satisfied, the reviewing court must consider the factual record in full. Although credibility determinations are reviewed under the clearly-erroneous standard ... the reviewing court must “ ‘examine for [itself] the statements in issue and the circumstances under which they were made to see ... whether they are of a character which the principles of the First Amendment ... protect[.]’ ” Id. at 688, 94 S.Ct. at 2696 (citations omitted). Based on our review of the entire record — the several sources on which the Fortune reporters relied, the substance of those sources’ statements, and the content of the various documents consulted in preparing the article — we believe the evidence could not have supported a finding of actual malice under the "clear and convincing” standard. This determination obviates the need to address the proper standard by which a trier of fact must measure a publication’s falsity. Although our conclusion regarding actual malice in this case necessarily suggests that the gist of the article was substantially true, we do not reach this issue. The “gist” of the contested portion of the Fortune article was that plaintiff Bres-sler allegedly played a lead role in pressuring an independent inspector to certify, contrary to fact, that' certain safety-related welds in the Watts Bar plant met the engineering code requirements, and that Bres-sler also attempted to cover up that safety violation. We now examine the defendant’s basis for reporting such allegations. III. In the course of researching a story on TYA’s non-operating nuclear power reactors and allegations that TVA’s chief of nuclear operations may have violated federal conflict-of-interest standards, Fortune reporters Brian Dumaine and Brett From-son learned about Nonconforming Condition Report (NCR) 5609. Howard Haston, the inspector from the Hartford company, had discovered that certain welds on pipes within the plant’s penetration assemblies had not been visually inspected for leakage during the mandatory “hydrostatic” (water-pressure) testing. Such inspection was required under the code promulgated by the American Society of Mechanical Engineers (ASME). It was Haston’s duty, as an authorized nuclear inspector, to check for compliance with the ASME code. Given the welds’ location within the plant, they were considered “safety-related” components. Having discovered this noncompliahce, Haston prepared NCR 5609 describing the problem. TVA, so alerted, was supposed to suggest a means of solving the problem. Bressler, TVA’s specialist on the ASME code, discussed the matter with Haston’s superiors, Harold Robison and William Higginbotham. Haston did not know what Bressler said in these conversations, and thus could not say that Bressler made any threats regarding Hartford’s contract with TVA. Haston said, however, that given Higginbotham’s “volatile personality ... . any discussion between a client ... and that supervisor could have been construed as threatening because he was concerned about that.” Faced with NCR 5609, TVA engineer Dorwin Etzler consulted with Bressler and decided to recommend that the welds be “used as is.” Bressler was “instrumental in suggesting [this] disposition,” according to Etzler’s trial testimony. Inspector Ha-ston’s signature was then required on the report in order to approve the “use as is” disposition. If Haston failed to sign it, TVA would have to obtain approval from the Nuclear Regulatory Commission (NRC) — which could delay the plant’s start-up. Bressler later admitted to NRC investigators that the planned schedule for fuel loading affected the decision to forgo the required inspection of the welds. Haston initially refused to sign the report because to do so would be to certify that the welds met the ASME code, which they did not. Haston finally submitted to pressure from his superiors, but he also inscribed the “unprecedented” notation that his signature was only “per written and verbal direction of H.L. Robison.” Bressler conceded at trial that the welds did not meet the code. Several months later, after TVA had certified to the NRC that the Watts Bar plant was ready for an operating license, a subcommittee of the House Committee on Commerce and Energy had assigned an investigator, John William. Nelson, to look into allegations, as Nelson put it, of “collusion between T.V.A. and Hartford Steam Boiler ... to the effect their on-site nuclear inspectors were being intimidated or forced to sign off on systems that they felt were not safe.” Shortly thereafter, an engineer on TVA’s internal investigatory unit, the Nuclear Safety Review Staff (NSRS), wrote a memorandum to the TVA Board. The engineer, Jerry Smith, told the Board that anonymous telephone callers had complained that the nuclear inspectors had been “bought off" or “told to back off by their employers as a result of ‘TVA pressure.’ ” In response, the TVA Board hired an independent contractor, the Quality Technology Corporation (QTC), to investigate the matter raised in Smith’s memorandum. When an anonymous extortion letter arrived at TVA, threatening to inform the NRC of ASME code violations if Hartford inspectors were not given a raise, the TVA Board launched a second investigation. This second inquiry was headed by Mans-our Guity, also of the TVA’s internal investigatory unit (the NSRS). Guity reported to his TVA superiors that the evidence he had gathered showed that the extortion letter was written by a TVA employee and not a Hartford inspector; more importantly, Guity told the Board that there had been collusion between TVA and Hartford managers in coercing inspectors to accept nonconforming components. Guity told TVA Assistant General Counsel William Mason that Bressler had played a lead role in the apparent collusion by “using his position on various national code committees to cause Hartford to take positions on T.V.A. code technical issues that they wouldn’t otherwise take.” Guity apparently had some difficulty completing his investigation, however. TVA management initially told Mason that the inspectors were refusing to talk to Guity. Mason later learned that the inspectors were willing to provide information, “and that the only problem was that there was this either perception or fact that the code section in [TVA’s] office of engineering was having this communication outside the procedure with Hartford” in an attempt to pressure the inspectors not to talk. Bres-sler was the TVA official responsible for code compliance. During this time, Bressler met with Ha-ston’s superiors and other Hartford managers. Bressler told Hartford that he had lost confidence in the company as a result of the extortion letter, and he also complained that Hartford inspectors were communicating with QTC, the company the TYA Board had hired to investigate the origin of the anonymous phone calls and the extortion letter. Due in part to Bres-sler’s complaints, Hartford instituted new regulations restricting its inspectors’ ability to communicate with outside investigators. Robison, Haston’s supervisor at Hartford, also sent a memorandum to Hartford inspectors at Watts Bar warning them that “TYA has voiced a concern that the Authorized Nuclear Inspectors are spending too much time with the Quality Technology Corporation.” Before the NSRS investigation into the alleged collusion was finished, Guity resigned, claiming that his TVA superiors were exerting “undue pressure” on him as a result of his initial findings. Guity filed a retaliation claim against TVA; Jerry Smith, also of the NSRS, did the same. Their claims were upheld. The NRC then launched its own investigation into the allegations of collusion and intimidation of inspectors. Fortune reporter Fromson learned from Henry Myers, an advisor to a subcommittee of the House Committee on Commerce and Energy (whom the NRC had briefed on its investigation), that the NRC had uncovered evidence corroborating the NSRS findings. According to Fromson’s notes on his interview with Myers, Myers said the NRC had discovered “[t]hat there was a violation of the ASME code. That Bressler at TVA pressured Higginbotham [at Hartford].... That Higg[inbotham] told Robison tó pressure Haston. That Robison did so. Bres-sler is the guy who pressured Hartford....” Meanwhile, as the NRC pursued its investigation, Fortune reporter Brian Du-maine interviewed Owen Thero, a former investigator for QTC — the company the TVA Board had hired to look into the allegations of collusion and intimidation raised by Jerry Smith. Thero told Dumaine that Bressler had warned Hartford management, “If you don’t play ball — Hartford could lose [its] contract.” Dumaine also interviewed Guity and Smith, the two NSRS investigators who had successfully sued TVA for retaliation. Dumaine’s interview notes indicate that Guity told the reporter that “the TVA management and Hartford managers forced (other) Hartford managers to sign off on pipes despite objections of Hartford inspectors[.]” Fortune reporter Brett Fromson also interviewed Guity on several occasions. According to Fromson’s interview notes, Guity informed him that “TVA pressured the home office of Hartford to accept the work.” “There was apparent collusion between the Hartford regional managers and the TVA managers to persuade the ANI [inspector] to approve penetration welds which were not hydro-statically tested.” Guity also said that TVA officials had attempted to thwart his investigation. The reporters also examined transcripts of deposition testimony taken as part of Guity’s and Smith’s labor claims against TVA. Mason, TVA’s lawyer, had testified that there “was a serious question, whether there was an improper T.V.A. link that was defeating the purpose of the [Hartford inspection] contract[.]” Mason also testified that Guity had told Michael Kidd, who had headed the NSRS, “that Mark Bressler ... was using his position on various national code committees to cause Hartford to take positions on T.V.A. code technical issues that they wouldn’t otherwise take.” Mason further testified that Guity had told Mason that Bressler would contact the Hartford regional office about code compliance problems raised at the nuclear plant sites, and the regional office would then contact the sites and proceed to “explain away or order the resolution of the code issues ... despite the fact that the code or the required engineering and substitution for the code may not have been in fact done.” Both Mason and Kidd, whose deposition the reporters also studied, testified that Guity enjoyed a reputation as one of TVA’s top investigators. Fromson interviewed another QTC investigator, William Kemp, who also pointed to Bressler as the TVA official pressuring Hartford on code issues. Kemp told From-son that when inspector Haston refused to sign NCR 5609, Bressler called Higginbotham, and Higginbotham then called Robison (Haston’s more immediate supervisor), complaining that, “[Y]our guy [Haston] is raising hell,” and instructing Robison to make Haston sign the report. Fromson also spoke with Haston himself who, though initially reluctant to talk, stated that he had indeed signed the report only when Robison compelled him to, and that “Higginbotham was getting calls from Bressler, the guy in charge of ASME codes and standards[.]” Haston also told From-son that he didn’t think that Bressler had “ever directly threatened ... to pull the contract, but the fear that it might be pulled was always there for Hartford.” When Fromson tried to reach Haston’s supervisors for comment, he was referred to Hartford’s attorney who said only that Hartford “has done nothing wrong.” Fromson claims he made repeated attempts to reach Bressler for comment, leaving messages with TVA’s public relations department and at Bressler’s own office. At trial, Bressler acknowledged receiving only one call from the reporter, which he did not return. Fromson said he read the relevant portions of the article to TVA’s public relations officer, who ultimately responded that TVA would have no comment. Once Dumaine and Fromson had completed a first draft of the article, Fortune editors subjected it to the magazine’s standard fact-checking process, during which the reporters would read passages of the article to the sources from whom they had gleaned the information. None of these sources — including Guity, Myers, Kemp, Thero, and Smith — found the article inaccurate. IV. The record, as summarized above, demonstrates that the Fortune reporters relied on a variety of mutually corroborative sources and materials. The reporters’ research revealed that four separate investigations — by QTC, the NRC, TVA’s own NSRS, and the House Committee on Commerce and Energy — had uncovered evidence that TVA, through Hartford management, had exerted pressure on Hartford inspectors. Three of these investigatory sources (Guity, Kemp, and Myers) specifically identified Bressler as the source of the pressure on Hartford, and a fourth (Thero) told Dumaine about a specific threat by Bressler regarding Hartford’s contract with TVA. The interview with inspector Hasten also confirmed that he signed NCR 5609 only under duress, that Bressler had had contact with Haston’s superiors while this report was being considered, and that any communication with Bressler, as a Hartford client, would have been deemed a threat to Hartford’s contract. The reporters also examined the deposition testimony of TVA Assistant General Counsel William Mason and former NSRS chief Kidd which confirmed that Bressler was the source of pressure on the inspectors to accept nonconforming items, and that the inspectors had felt inhibited about talking to the outside investigators — due to pressure emanating from the “code section in the office of engineering” (Bressler’s domain). Finally, the pre-publication checking process failed to reveal any inaccuracies, and the reporters sought comment from Hartford, TVA, and Bressler in particular. Based on our detailed examination of the evidence on which Dumaine and Fromson relied in reporting the allegations — identified as such — in the Fortune article, we are convinced that the finding of actual malice in this case is unsupportable. The variety of the sources, their corroborative statements and apparent reliability, and the pre-publication scrutiny to which the sources’ information was subjected, all contribute to our conclusion. If the .televised reading of another’s affidavit accusing an official of bribery does not constitute actual malice even when the reader relies solely on the affidavit and makes no attempt to verify the accusation, then the comparatively extensive research effort by the Fortune reporters here, which gleaned consistent statements from multiple reliable sources, compels us to conclude that actual malice cannot be found on this record. There simply is not enough evidence to show that the defendant actually “entertained serious doubts as to the truth of [the] publication.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). We also reject Bressler’s attempt to analogize this case to Harte-Hanks. In that case, the Supreme Court found actual malice in the publisher’s failure to consult a key witness and listen to a readily available tape recording of a contested conversation. These efforts would have verified or contradicted the informant’s “highly improbable” charges, which five other witnesses had cast into serious doubt. Harte-Hanks, 491 U.S. at 691-92, 109 S.Ct. at 2697-98. Given the consistent stories which Fortune’s several sources had provided, and those sources’ apparent reliability, Fortune’s decision not to gain additional comment from Harry Jackson — whom Kemp had identified as an expert on code issues— cannot be equated with the Journal News’ failure in Harte-Hanks to interview Patsy Stephens and'listen to the tape recording of her interview with COnnaughton. Unlike in Harte-Hanks, we can find no evidence here of a “purposeful avoidance of the truth.” Id. at 692, 109 S.Ct. at 2698. The judgment in favor of the plaintiff is REVERSED, and the case is REMANDED for entry of judgment in favor of the defendant. . The dissent suggests that we have required Bressler, a minor figure in the article, to demonstrate the falsity of the entire article. Our analysis reveals, however, that we have done no such thing. We have focused solely on the discrete passages in dispute. . The dissent relies on Masson in criticizing our purported rewriting of the article’s defamatory statements. Masson, however, in addition to confirming that it is the "gist” of the statements which must be examined, — U.S. at-, 111 S.Ct. at 2433, considered the significance of rewriting, or misquoting, by a defendant-publisher, and not by a reviewing court. Further, there has been no allegation that the Fortune reporters altered or fabricated any quotations. .Before the Nuclear Regulatory Commission would allow Watts Bar to operate, inspectors like Haston had to certify that the plant complied with the ASME code, or that there had been a satisfactory "disposition" of any noncomplying materials or components. . Nelson was deposed as a witness in a suit brought by a TVA investigator, Jerry Smith, against TVA. The Fortune reporters reviewed his deposition as part of their research for the article at issue here. . The article states that Myers, identified as a "congressional source[],” had said the allegations were confirmed in a draft NRC report. The final NRC report, issued one month after the Fortune article appeared, confirmed that Hasten had been "coerced, pressured, harassed, threatened and/or intimidated by Higginbotham [or] Robison” into accepting TVA’s "use as is” disposition “which did not meet the minimum requirements of the ASME Code.” The NRC report also states that Bressler admitted the ASME code was violated when the welds were not visually examined during the hydrostatic testing, and that the fear of delaying the start-up of the reactor contributed to the decision to forgo such inspection. Significantly, the report concluded: The decision by [Hartford] management to agree to the "accept as is” disposition of NCR 5609 may have been influenced by discussions between [Hartford] management and TVA personnel, [Hartford] management's sensitivity to TVA’s needs and desires, and the apparent perceived concern by [Hartford] management personnel that the actions of their ANIs [inspectors] could jeopardize their contract with TVA. The report also stated that ”[t]here is testimonial evidence to support that TVA, through [Hartford], attempted to discourage the site ANIs from talking to QTC and NSRS personnel.” Bressler was one of only three TVA officials referred tp in this portion of the report; the other two were Dorwin Etzler, who had prepared the “use as is” recommendation after consulting Bressler, and Walter Joest, an engineer in TVA’s Codes, Standards, and Materials Group. Bressler was the TVA official in charge of code compliance. As the dissent correctly notes, the final NRC report cannot be deemed probative of the reporters’ state of mind, as it was issued only after the article was published. (It is, however, pertinent to the falsity issue.) The draft of this report is properly considered in the actual malice inquiry in that Myers disclosed its conclusions to Fromson during the article’s preparation. . Although the notes taken during this fact-checking routine were lost before trial, plaintiff did not offer any evidence — such as testimony by the sources purportedly consulted during this process — -to show that such checking never occurred. . Bressler argues that Guity and Smith, major sources for the article, were obviously biased against TVA, having sued it for retaliatory discharge. However, these investigators’ success in their labor dispute bolsters the credibility of their claim that TVA thwarted their investigation into improper pressure exerted on Hartford inspectors. Further, the depositions of Mason and Kidd indicated to the reporters that Guity, considered one of TVA’s best investigators, was a credible source. Finally, as is evident from our decision in Perk v. The Reader's Digest Association, 931 F.2d 408, 411-12 (6th Cir.1991), reliance on hostile sources does not of itself necessarily constitute actual malice. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:

sc_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. OWEN v. CITY OF INDEPENDENCE, MISSOURI, et al. No. 78-1779. Argued January 8, 1980 Decided April 16, 1980 Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, and Stevens, JJ., joined. Powell, J., filed a dissenting opinion, in which Burger, C. J., and Stewart and Rehnquist, JJ., joined, post, p. 658. Irving Achtenberg argued the cause for petitioner. With him on the briefs was David Achtenberg. Richard G. Carlisle argued the cause and filed a brief for respondents. Briefs of amici curiae urging reversal were filed by Bruce J. Ennis, Oscar G. Chase, and Nancy Steams for the American Civil Liberties Union et al.; and by Michael H. Gottesman, Robert M. Weinberg, David Rubin, William E. Caldwell, John B. Jones, Jr., Norman Redlich, William L. Robinson, and Norman Chachkin for the National Education Association et al. Mr. Justice Brennan delivered the opinion of the Court. Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), overruled Monroe v. Pape, 365 U. S. 167 (1961), insofar as Monroe held that local governments were not among the “persons” to whom 42 U. S. C. 11983 applies and were therefore wholly immune from suit under the statute. Monell reserved decision, however, on the question whether local governments, although not entitled to an absolute immunity, should be afforded some form of official immunity in 1 1983 suits. 436 U. S., at 701. In this action brought by petitioner in the District Court for the Western District of Missouri, the Court of Appeals for the Eighth Circuit held that respondent city of Independence, Mo., “is entitled to qualified immunity from liability” based on the good faith of its officials: “We extend the limited immunity the district court applied to the individual defendants to cover the City as well, because its officials acted in good faith and without malice.” 589 F. 2d 335, 337-338 (1978). We granted certiorari. 444 U. S. 822 (1979). We reverse. I The events giving rise to this suit are detailed in the District Court’s findings of fact, 421 F. Supp. 1110 (1976). On February 20, 1967, Robert L. Broucek, then City Manager of respondent city of Independence, Mo,, appointed petitioner George D. Owen to an indefinite term as Chief of Police. In 1972, Owen and a new City Manager, Lyle W. Alberg, engaged in a dispute over petitioner’s administration of the Police Department’s property room. In March of that year, a handgun, which the records of the Department’s property room stated had been destroyed, turned up in Kansas City in the possession of a felon. This discovery prompted Al-berg to initiate an investigation of the management of the property room. Although the probe was initially directed by petitioner, Alberg soon transferred responsibility for the investigation to the city’s Department of Law, instructing the City Counselor to supervise its conduct and to inform him directly of its findings. Sometime in early April 1972, Alberg received a written report on the investigation’s progress, along with copies of confidential witness statements. Although the City Auditor found that the Police Department’s records were insufficient to permit an adequate accounting of the goods contained in the property room, the City Counselor concluded that there was no evidence of any criminal acts or of any violation of state or municipal law in the administration of the property-room. Alberg discussed the results of the investigation at an informal meeting with several City Council members and advised them that he would take action at an appropriate time to correct any problems in the administration of the Police Department. On April 10, Alberg asked petitioner to resign as Chief of Police and to accept another position within the Department, citing dissatisfaction with the manner in which petitioner had managed the Department, particularly his inadequate supervision of the property room. Alberg warned that if petitioner refused to take another position in the Department his employment would be terminated, to which petitioner responded that he did not intend to resign. On April 13, Alberg issued a public statement addressed to the Mayor and the City Council concerning the results of the investigation. After referring to “discrepancies” found in the administration, handling, and security of public property, the release concluded that “[t]here appears to be no evidence to substantiate any allegations of a criminal nature” and offered assurances that “[sjteps have been initiated on an administrative level to correct these discrepancies.” Id., at 1115. Although Alberg apparently had decided by this time to replace petitioner as Police Chief, he took no formal action to that end and left for a brief vacation without informing the City Council of his decision. While Alberg was away on the weekend of April 15 and 16, two developments occurred. Petitioner, having consulted with counsel, sent Alberg a letter demanding written notice of the charges against him and a public hearing with a reasonable opportunity to respond to those charges. At approximately the same time, City Councilman Paul L. Roberts asked for a copy of the investigative report on the Police Department property room. Although petitioner’s appeal received no immediate response, the Acting City Manager complied with Roberts’ request and supplied him with the audit report and witness statements. On the evening of April 17, 1972, the City Council held its regularly scheduled meeting. After completion of the planned agenda, Councilman Roberts read a statement he had prepared on the investigation. Among other allegations, Roberts charged that petitioner had misappropriated Police Department property for his own use, that narcotics and money had “mysteriously disappeared” from his office, that traffic tickets had been manipulated, that high ranking police officials had made “inappropriate” requests affecting the police court, and that “things have occurred causing the unusual release of felons.” At the close of his statement, Roberts moved that the investigative reports be released to the news media and turned over to the prosecutor for presentation to the grand jury, and that the City Manager “take all direct and appropriate action” against those persons “involved in illegal, wrongful, or gross inefficient activities brought out in the investigative reports.” After some discussion, the City Council passed Roberts’ motion with no dissents and one abstention. City Manager Alberg discharged petitioner the very next day. Petitioner was not given any reason for his dismissal; he received only a written notice stating that his employment as Chief of Police was “[t]erminated under the provisions of Section 3.3(1) of the City Charter.” Petitioner’s earlier demand for a specification of charges and a public hearing was ignored, and a subsequent request by his attorney for an appeal of the discharge decision was denied by the city on the grounds that “there is no appellate procedure or forum provided by the Charter or ordinances of the City of Independence, Missouri, relating to the dismissal of Mr. Owen.” App. 26-27. The local press gave prominent coverage both to the City Council’s action and petitioner’s dismissal, linking the discharge to the investigation. As instructed by the City Council, Alberg referred the investigative reports and witness statements to the Prosecuting Attorney of Jackson County, Mo., for consideration by a grand jury. The results of the audit and investigation were never released to the public, however. The grand jury subsequently returned a “no true bill,” and no further action was taken by either the City Council or City Manager Alberg. II Petitioner named the city of Independence, City Manager Alberg, and the present members of the City Council in their official capacities as defendants in this suit. Alleging that he was discharged without notice of reasons and without a hearing in violation of his constitutional rights to procedural and substantive due process, petitioner sought declaratory and injunctive relief, including a hearing on his discharge, back-pay from the date of discharge, and attorney’s fees. The District Court, after a bench trial, entered judgment for respondents. 421 F. Supp. 1110 (1976). The Court of Appeals initially reversed the District Court. 560 F. 2d 925 (1977). Although it agreed with the District Court that under Missouri law petitioner possessed no property interest in continued employment as Police Chief, the Court of Appeals concluded that the city’s allegedly false public accusations had blackened petitioner’s name and reputation, thus depriving him of liberty without due process of law. That the stigmatizing charges did not come from the City Manager and were not included in the official discharge notice was, in the court’s view, immaterial. What was un-portant, the court explained, was that "the official actions of the city council released charges against [petitioner] contemporaneous and, in the eyes of the public, connected with that discharge.” Id., at 937. Respondents petitioned for review of the Court of Appeals’ decision. Certiorari was granted, and the case was remanded for further consideration in light of our supervening decision in Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978). 438 U. S. 902 (1978). The Court of Appeals on the remand reaffirmed its original determination that the city had violated petitioner’s rights under the Fourteenth Amendment, but held that all respondents, including the city, were entitled to qualified immunity from liability. 589 F. 2d 335 (1978). Monell held that “a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” 436 U. S., at 694. The Court of Appeals held in the instant ease that the municipality’s official policy was responsible for the deprivation of petitioner’s constitutional rights: “[T]he stigma attached to [petitioner] in connection with his discharge was caused by the official conduct of the City’s lawmakers, or by those whose acts may fairly be said to represent official policy. Such conduct amounted to official policy causing the infringement of [petitioner’s] constitutional rights, in violation of section 1983.” 589 F. 2d, at 337. Nevertheless, the Court of Appeals affirmed the judgment of the District Court denying petitioner any relief against the respondent city, stating: “The Supreme Court’s decisions in Board of Regents v. Roth, 408 U. S. 564 . . . (1972), and Perry v. Sindermann, 408 U. S. 593 . . . (1972), crystallized the rule establishing the right to a name-clearing hearing for a government employee allegedly stigmatized in the course of his discharge. The Court decided those two cases two months after the discharge in the instant case. Thus, officials of the City of Independence could not have been aware of [petitioner’s] right to a name-clearing , hearing in connection with the discharge. The City of Independence should not be charged with predicting the future course of constitutional law. We extend the limited immunity the district court applied to the individual defendants to cover the City as well, because its officials acted in good faith and without malice. We hold the City not liable for actions it could not reasonably have known violated [petitioner’s] constitutional rights.” Id., at 338 (footnote and citations omitted). We turn now to the reasons for our disagreement with this holding. Ill Because the question of the scope of a municipality’s immunity from liability under § 1983 is essentially one of statutory construction, see Wood v. Strickland, 420 U. S. 308, 314, 316 (1975); Tenney v. Brandhove, 341 U. S. 367, 376 (1951), the starting point in our analysis must be the language of the statute itself. Andrus v. Allard, 444 U. S. 51, 56 (1979); Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (Powell, J., concurring). By its terms, § 1983 “creates a species of tort liability that on its face admits of no immunities.” Imbler v. Pachtman, 424 U. S. 409, 417 (1976). Its language is absolute and unqualified; no mention is made of any privileges, immunities, or defenses that may be asserted. Bather, the Act imposes liability upon “every person” who, under color of state law or custom, “subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” And Monell held that these words were intended to encompass municipal corporations as well as natural “persons.” Moreover, the congressional debates surrounding the passage of § 1 of the Civil Rights Act of 1871, 17 Stat. 13 — the forerunner of § 1983 — confirm the expansive sweep of the statutory language. Representative Shellabarger, the author and manager of the bill in the House, explained in his introductory remarks the breadth of construction that the Act was to receive: “I have a single remark to make in regard to the rule of interpretation of those provisions of the Constitution under which all the sections of the bill are framed. This act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally and beneficently construed. It would be most strange and, in civilized law, monstrous were this not the rule of interpretation. As has been again and again decided by your own Supreme Court of the United States, and everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people.” Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871) (hereinafter Globe App.). Similar views of the Act’s broad remedy for violations of federally protected rights were voiced by its supporters in both Houses of Congress. See Monell v. New York City Dept. of Social Services, 436 U. S., at 683-687. However, notwithstanding § 1983’s expansive language and the absence of any express incorporation of common-law immunities, we have, on several occasions, found that a tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that “Congress would have specifically so provided had it wished to abolish the doctrine.” Pierson v. Ray, 386 U. S. 547, 555 (1967). Thus in Tenney v. Brandhove, supra, after tracing the development of an absolute legislative privilege from its source in 16th-century England to its inclusion in the Federal and State Constitutions, we concluded that Congress “would [not] impinge on a tradition so well grounded in history and reason by covert inclusion in the general language” of § 1983. 341 U. S., at 376. Subsequent cases have required that we consider the personal liability of various other types of government officials. Noting that “[f]ew doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction,” Pierson v. Ray, supra, at 553-554, held that the absolute immunity traditionally accorded judges was preserved under § 1983. In that same case, local police officers were held to enjoy a “good faith and probable cause” defense to § 1983 suits similar to that which existed in false arrest actions at common law. 386 U. S., at 555-557. Several more recent decisions have found immunities of varying scope appropriate for different state and local officials sued under § 1983. See Procunier v. Navarette, 434 U. S. 555 (1978) (qualified immunity for prison officials and officers); Imbler v. Pachtman, 424 U. S. 409 (1976) (absolute immunity for prosecutors in initiating and presenting the State’s case); O’Connor v. Donaldson, 422 U. S. 563 (1975) (qualified immunity for superintendent of state hospital); Wood v. Strickland, 420 U. S. 308 (1975) (qualified immunity for local school board members) ; Scheuer v. Rhodes, 416 U. S. 232 (1974) (qualified “good-faith” immunity for state Governor and other executive officers for discretionary acts performed in the course of official conduct). In each of these cases, our finding of § 1983 immunity “was predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.” Imbler v. Pachtman, supra, at 421. Where the immunity claimed by the defendant was well established at common law at the time § 1983 was enacted, and where its rationale was compatible with the purposes of the Civil Eights Act, we have construed the statute to incorporate that immunity. But there is no tradition of immunity for municipal corporations, and neither history nor policy supports a construction of § 1983 that would justify the qualified immunity accorded the city of Independence by the Court of Appeals. We hold, therefore, that the municipality may not assert the good faith of its officers or agents as a defense to liability under § 1983. A Since colonial times, a distinct feature of our Nation’s system of governance has been the conferral of political power upon public and municipal corporations for the management of matters of local concern. As Monell recounted, by 1871, municipalities — like private corporations — were treated as natural persons for virtually all purposes of constitutional and statutory analysis. In particular, they were routinely sued in both federal and state courts. See 436 U. S., at 687-688. Cf. Cowles v. Mercer County, 7 Wall. 118 (1869). Local governmental units were regularly held to , answer in damages for a wide range of statutory and constitutional violations, as well as for common-law actions for breach of contract. And although, as we discuss below, a municipality was not subject to suit for all manner of tortious conduct, it is clear that at the time § 1983 was enacted, local governmental bodies did not enjoy the sort of “good-faith” qualified immunity extended to them by the Court of Appeals. As a general rule, it was understood that a municipality’s tort liability in damages was identical to that of private corporations and individuals: “There is nothing in the character of a municipal corporation which entitles it to an immunity from liability for such malfeasances as private corporations or individuals would be liable for in a civil action. A municipal corporation is liable to the same extent as an individual for any act done by the express authority of the corporation, or of a branch of its government, empowered to act for it upon the subject to which the particular act relates, and for any act which, after it has been done, has been lawfully ratified by the corporation.” T. Shear-man & A. Redfield, A Treatise on the Law of Negligence § 120, p. 139 (1869) (hereinafter Shearman & Redfield). Accord, 2 Dillon § 764, at 875 (“But as respects municipal corporations proper, ... it is, we think, universally considered, even in the absence of statute giving the action, that they are liable for acts of misfeasance positively injurious to individuals, done by their authorized agents or officers, in the course of the performance of corporate powers constitutionally conferred, or in the execution of corporate duties”) (emphasis in original). See 18 E. McQuillin, Municipal Corporations § 53.02 (3d rev. ed. 1977) (hereinafter McQuillin). Under this general theory of liability, a municipality was deemed responsible for any private losses generated through a wide variety of its operations and functions, from personal injuries due to its defective sewers, thoroughfares, and public utilities, to property damage caused by its trespasses and uncompensated takings. Yet in the hundreds of cases from that era awarding damages against municipal governments for wrongs committed by them, one searches in vain for much mention of a qualified immunity based on the good faith of municipal officers. Indeed, where the issue was discussed at all, the courts had rejected the proposition that a municipality should be privileged where it reasonably believed its actions to be lawful. In the leading case of Thayer v. Boston, 36 Mass. 511, 515-516 (1837), for example, Chief Justice Shaw explained: “There is a large class of cases, in which the rights of both the public and of individuals may be deeply involved, in which it cannot be known at the time the act is done, whether it is lawful or not. The event of a legal inquiry, in a court of justice, may show that it was unlawful. Still, if it was not known and understood to be! unlawful at the time, if it was an act done by the officers! having competent authority, either by express vote of \ the city government, or by the nature of the duties and ! functions with which they are charged, by their offices, to act upon the general subject matter, and especially if the j act was done with an honest view to obtain for the public j some lawful benefit or advantage, reason and justice ob- ¡ viously require that the city, in its corporate capacity, should be liable to make good the damage sustained by an individual, in consequence of the acts thus done.” ] The Thayer principle was later reiterated by courts in several jurisdictions, and numerous decisions awarded damages against municipalities for violations expressly found to have been committed in good faith. See, e. g., Town Council of Akron v. McComb, 18 Ohio 229, 230-231 (1849); Horton v. Inhabitants of Ipswich, 66 Mass. 488, 489, 492 (1853); Elliot v. Concord, 27 N. H. 204 (1853); Hurley v. Town of Texas, 20 Wis. 634, 637-638 (1866); Lee v. Village of Sandy Hill, 40 N. Y. 442, 448-451 (1869); Billings v. Worcester, 102 Mass. 329, 332-333 (1869); Squiers v. Village of Neenah, 24 Wis. 588, 593 (1869); Hawks v. Charlemont, 107 Mass. 414, 417-418 (1871). That municipal corporations were commonly held liable for damages in tort was also recognized by the 42d Congress. See Monell v. New York City Dept. of Social Services, 436 U. S., at 688. For example, Senator Stevenson, in opposing the Sherman amendment’s creation of a municipal liability for the riotous acts of its inhabitants, stated the prevailing law: "Numberless cases are to be found where a statutory liability has been created against municipal corporations for injuries resulting from a neglect of corporate duty.” Cong. Globe, 42d Cong., 1st Sess., 762 (hereinafter Globe). Nowhere in the debates, however, is there a suggestion that the common law excused a city from liability on account of the good faith of its authorized agents, much less an indication of a congressional intent to incorporate such an immunity into the Civil Rights Act. The absence of any allusion to a municipal immunity assumes added significance in light of the objections raised by the opponents of § 1 of the Act that its unqualified language could be interpreted to abolish the traditional good-faith immunities enjoyed by legislators, judges, governors, sheriffs, and other public officers. Had there been a similar common-law immunity for municipalities, the bill’s opponents doubtless would have raised the specter of its destruction, as well. To be sure, there were two doctrines that afforded municipal corporations some measure of protection from tort liability. The first sought to distinguish betweeá a municipality’s “governmental” and “proprietary” functions; as to the former, the city was held immune, whereas in its exercise of the latter, the city was held to the same standards of liability as any private corporation. The second doctrine immunized a municipality for its “discretionary” or “legislative” activities, but not for those which were “ministerial” in nature. A brief examination of the application and the rationale underlying each of these doctrines demonstrates that Congress could not have intended them to limit a municipality’s liability under § 1983. The governmental-proprietary distinction owed its existence to the dual nature of the municipal corporation. On the one hand, the municipality was a corporate body, capable of performing the same “proprietary” functions as any private corporation, and liable for its torts in the same manner and to the same extent, as well. On the other hand, the municipality was an arm of the State, and when acting in that “governmental” or “public” capacity, it shared the immunity traditionally accorded the sovereign. But the principle of sovereign immunity — itself a somewhat arid fountainhead for municipal immunity — is necessarily nullified when the State expressly or impliedly allows itself, or its creation, to be sued. Municipalities were therefore liable not only for their “proprietary” acts, but also for those “governmental” functions as to which the State had withdrawn their immunity. And, by the end of the 19th century, courts regularly held that in imposing a specific duty on the municipality either in its charter or by statute, the State had impliedly withdrawn the city’s immunity from liability for the nonperformance or misperformance of its obligation. See, e. g., Weightman v. The Corporation of Washington, 1 Black 39, 50-52 (1862); Providence v. Clapp, 17 How. 161, 167-169 (1855). See generally Shearman & Redfield §§ 122-126; Note, Liability of Cities for the Negligence and Other Misconduct of their Officers and Agents, 30 Am. St. Rep. 376, 385 (1893). Thus, despite the nominal existence of an immunity for “governmental” functions, municipalities were found liable in damages in a multitude of cases involving such activities. That the municipality’s common-law immunity for “governmental” functions derives from the principle of sovereign immunity also explains why that doctrine could not have served as the basis for the qualified privilege respondent city claims under § 1983. First, because, sovereign immunity insulates the municipality from unconsented suits altogether, the pres-enee or absence of good faith is simply irrelevant. The critical issue is whether injury occurred while the city was exercising- governmental, as opposed to pioprietary, powers or obligations — not whether its agents reasonably believed they were acting lawfully in so conducting themselves. Morfundamentally, however, the municipality’s “governmental” immunity is obviously abrogated by the sovereign’s enacment of a statute making it amenable to suit. Section 1983 was just such a statute. By including municipalities within the class of “persons” subject to liability for violations of the Federal Constitution and laws, Congress — the supreme sovereign on matters of federal law — abolished whatever vestige of the State’s sovereign immunity the municipality possessed. The second common-law distinction between municipal functions — that protecting the city from suits challenging “discretionary” decisions — was grounded not on the principle of sovereign immunity, but on a concern for separation of powers. A large part of the municipality’s responsibilities involved broad discretionary decisions on issues of public policy — decisions that affected large numbers of persons and called for a delicate balancing of competing considerations. For a court or jury, in the guise of a tort suit, to review the reasonableness of the city’s judgment on these matters would be an infringement upon the powers properly vested in a coordinate and coequal branch of government. See Johnson v. State, 69 Cal. 2d 782, 794, n. 8, 447 P. 2d 352, 361, n. 8 (1968) (en banc) (“Immunity for ‘discretionary’ activities serves no purpose except to assure that courts refuse to pass judgment on policy decisions in the province of coordinate branches of government”). In order to ensure against any invasion into the legitimate sphere of the municipality’s policymaking processes, courts therefore refused to entertain suits against the city “either for the non-exercise of, or for the manner in which in good faith it exercises, discretionary powers of a public or legislative character.” 2 Dillon § 753, at 862. Although many, if not all, of a municipality’s activities would seem to involve at least some measure of discretion, the influence of 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_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. NEW BRITAIN MACHINE CO., Plaintiff-Appellant, v. W. Lloyd YEO, Administrator, Estate of Joseph H. Hoern, et al., Defendants-Appellees. W. Lloyd YEO, Administrator, Estate of Joseph H. Hoern, et al., Plaintiffs-Appellees, v. NEW BRITAIN MACHINE CO., Defendant-Appellant. Nos. 16211, 16287. United States Court of Appeals Sixth Circuit. March 8, 1966. Roy C. Hopgood, New York City, and Palmer S. McGee, Jr., Hartford, Conn'., for New Britain Machine Co., Milton E. Higgs, Higgs & Higgs, Bay City, Mich., on the brief, John M. Calimafde, Arthur M. Lieberman, Hopgood & Calimafde, New York City, Palmer S. McGee, Jr., Day, Berry & Howard, Hartford, Conn., of counsel. Ferdinand D. Heilman, Saginaw, Mich., for W. Lloyd Yeo and others, Heil-man, Purcell, Tunison & Cline, Saginaw, Mich., on the brief. Before PHILLIPS and CELE-BREZZE, Circuit Judges, and CECIL, Senior Circuit Judge. HARRY PHILLIPS, Circuit Judge. Case No. 16,287 is an appeal by New Britain Machine Company (referred to herein as “New Britain”) from a final judgment rendered against it in the amount of $202,253.51, plus costs and disbursements yet to be taxed. This judgment is based upon royalties on a certain “BV” machine manufactured and sold by New Britain, which uses mechanisms covered by U. S. Patent No. 2,872,-853 (application No. 400,531). Plaintiff s-appellees (referred to herein as “Yeo et al.”) are a group of twenty-four former stockholders of Hoern & Dilts, Inc., a Michigan corporation which was dissolved in 1955, and are the owners of the aforesaid patent as assignees of this corporation. Case No. 16,211 is an appeal by New Britain from an order of the district court dismissing its action against Yeo et al. for the recovery of royalties alleged to have been paid by mistake and without consideration in the amount of $207,193.-36. Jurisdiction in both cases is- based upon diversity of citizenship. This opinion will be devoted to case No. 16,287 except where otherwise indicated. 1) The three contracts at issue This action is for breach of contract. Three contracts are involved, referred to herein as the 1946 contract, the 1950 contract and the 1955 contract. The patent in question, No. 2,872,853, was issued to J. H. Hoern, inventor, February 10, 1959. The application for this patent was filed by Mr. Hoern December 28, 1953. New Britain is a manufacturer and seller of industrial machines. The machine here in question is of a type known as a rotary-cam actuated boring machine. This type of machine falls generally into one of three classes, namely: (1) “indexing” machines, or (2) “continuous” machines, or (3) “non-indexing, non-eontinuous” machines. The BV machine here involved is of the third class, i. e., “non-indexing, non-eontinuous.” In 1946 and prior thereto J. H. Hoern and Carl E. Dilts were engaged in business as a partnership designing and building machine tools. Mr. Hoern is now dead and Yeo is the administrator of his estate. The 1946 Contract On March 28, 1946, these two individuals entered into a licensing agreement with New Britain. This contract stated that the licensors, Hoern and Dilts, “have been and now are developing cam and pneumatic actuated' type boring machines;” that certain improvements in cam and pneumatic actuated type boring machines were disclosed in patent application No. 642,352 (later granted as Patent No. 2,641,146) and in application for U. S. Patents then in course of preparation (this reference is to application No. 671,477 which was filed May 22, 1946, and for which the patent was issued November 24, 1953, as No. 2,659,961); and that the exclusive right and license to manufacture and sell the said boring machines was granted to New Britain, except in certain particulars therein provided. The pertinent licensing language of the 1946 contract is quoted in the margin. Additionally the agreement provided that Hoern and Dilts would disclose to New Britain any invention or improvements relating to the said machines, without further royalty payments. In September 1946, the Hoern and Dilts Corporation, hereinafter referred to as “H & D, Inc.”, was formed, with Messrs. Hoern and Dilts holding a majority of the stock. H & D, Inc. engaged in the manufacture and sale of “indexing” and “continuous” rotary cam actuated boring machines. The 1950 Contract In 1950 New Britain discovered that H & D Inc. was also engaged in the manufacture and sale of a type -of “non-indexing, non-continuous” boring machines. New Britain protested to the individuals and the corporation that this action was an infringement of the exclusive rights granted by the 1946 contract. Two new agreements were executed, one between New Britain and H & D Inc., and the other between New Britain and Messrs. Hoern and Dilts as individuals. The agreement between the two corporations provided that: “2. H & D agrees to cease forthwith and not to resume the manufacture or sale of Non-indexing Type Boring Machines of the general type heretofore manufactured and sold by it and which New Britain contends are covered by the said exclusive license which New Britain did acquire from Joseph H. Hoern and Carl E. Dilts by agreement of March 28, 1946.” The new licensing contract which was executed in 1950 between New Britain and the individuals Hoern and Dilts provided that the 1946 agreement “be amended by substituting therefor” the new agreement. The 1950 contract granted New Britain the exclusive license to manufacture and sell “said Rotary-Cam Actuated Boring Machines, including machines of the general type shown in Blue Print T-300 annexed hereto,” and including improvements thereto described and claimed in patent applications No. 642,352 and No. 671,477 (the same two applications mentioned in the 1946 agreement). Pertinent parts of the 1950 agreement, which will be discussed later in more detail, are set forth in the margin. The 1955 Contract In 1955 New Britain purchased the assets of H & D Inc., and that corporation was liquidated. Two new agreements were entered into: (1) covering the purchase and sale of the assets of the liquidated corporation, which expressly-reserved in H & D Inc. title to its patents and patent applications, and (2) a patent licensing agreement. In the “Representations and Acknowl-edgement” section of the 1955 licensing contract, the parties identified various patents owned by H & D Inc., including the two patents referred to in the 1946 and 1950 agreements; and patent application No. 400,531 (later granted as No. 2,872,853), which is the subject of the present litigation. The granting clause of the 1955 contract is quoted in the margin. Under the language of the 1955 contract quoted in footnotes five and six, patent application No. 400,531 (later granted as patent No. 2,872,853) is included within the term “letters patent and patent rights” upon which royalties were to be paid by New Britain, unless excluded by the “special acknowledgment” paragraph (footnote 7) which is discussed later in this opinion and unless included in the exclusive license granted to New Britain by the 1950 contract. It is reemphasized that application No. 400,531 referred to in footnote 5 was later granted as Patent No. 2,872,853 on February 10, 1959. It is conceded by New Britain that the mechanisms of this patent are used in the BV machine involved in this litigation. The claim of Yeo et al. for royalties is based upon the use of patent No. 2,872,853 with respect to the BV machine. New Britain contends, however, that the exclusive right to this patent was granted to it by Messrs. Hoern and Dilts under the terms of the 1946 and 1950 contracts and that this patent is excluded by the “special acknowledgement” paragraph of the 1955 contract (quoted infra in footnote 7); and it therefore owes no royalties on this BV machine under the 1955 contract. 2) Holding of district court The case was originally tried at various sittings by the late District Judge Frank A. Picard, who died without announcing a decision. Following the death of Judge Picard the case was assigned to District Judge Stephen J. Roth. Thereupon by stipulation it was agreed that the case would be submitted to Judge Roth upon the transcript of the proceedings, arguments and briefs of counsel, and proposed findings of fact and conclusions of law. In rendering a judgment against New Britain, it was the reasoning of the district court that, under the provisions of paragraph (1) (e) quoted in footnote 5, it was stated that at the time of the execution of the 1955 contract H & D Inc. was the owner of patent application Serial No. 400,531, filed December 28, 1953, which was then pending. Judge Roth emphasized that, after listing all the patents and patent applications then owned by H & D Inc., paragraph (1) concluded with this language; “All of the letters patent, patent applications, licenses and other rights referred to in this paragraph (1) shall be referred to hereinafter in the aggregate and for convenience only as ‘letters patent and patent rights.’ ” (See footnote 6). The district judge then pointed out that “paragraph 3 provides for the licensing of the ‘letters patent and patent rights’ ” owned by H & D Inc. and payment of royalties thereon by New Britain. The court then concluded: “The result urged upon the Court by the defendant would require two things: disregarding the plain and explicit language of the 1955 agreement between the parties and interpolating into the 1950 agreement between them, language which is not there. “The Court finds that it was the agreement and the intention of the parties that the defendant pay royalties to Hoern and Dilts, Inc., on the ‘BV’ contour machine, which admittedly uses mechanisms covered by patent application number 400,531.” 8) Is the BV machine within the scope of the 1950 contract? New Britain contends that, under the terms of the 1946 and 1950 contracts, it acquired exclusive rights to all “non-indexing, non-continuous” machines for which Messrs. Hoern and Dilts then had applications pending, and all such machines for which Messrs. Hoern and Dilts thereafter might obtain patents; that the 1946 and 1950 contracts encompassed “non-indexing, non-continuous” machines broadly as a class; that the BV machine here involved falls within the grant of the 1950 contract, even though the application for the patent whose mechanisms are used in this machine was not filed until 1953 and the patent was not issued until 1959; and that the 1955 contract relates exclusively to “indexing” and “continuous” machines, and not to “non-indexing, non-continuous machines” such as the BV machine here involved. In support of this contention, New Britain relies strongly upon the “special acknowledgement” paragraph of the 1955 contract, which is set forth in the margin. This “special acknowledgement” language makes it clear that the 1955 contract was not intended to affect any rights which had been acquired by New Britain under the 1946 and 1950 contracts. If an exclusive license to patent No. 2,872,853 in fact was granted to New Britain by the 1950 contract, it is excluded from the 1955 contract by the terms of the “special acknowledgement” paragraph (footnote 7). If New Britain is correct in its interpretation of the “special acknowledgement” paragraph and the 1950 contract, it necessarily would follow that it would owe no royalties to Yeo et al. under the 1955 contract. The controlling question to be determined then is whether by the 1950 contract Messrs. Hoern and Dilts relinquished and transferred to New Britain, without payment of additional royalties, exclusive rights to all inventions for which they might thereafter apply and be granted patents relating to “non-indexing, non-continuous” types of boring machines. More specifically, the question is whether patent No. 2,872,853 whose mechanisms admittedly are used in the BV machines (for which application was filed in 1953, and was pending in 1955, and which was granted in 1959) is nothing more than an improvement on the earlier patents used in the rotary:cam actuated boring machines licensed to New Britain in 1950. The rule for interpreting a contract assigning future patents and future improvements is well stated in DeLong Corp. v. Lucas, 176 F.Supp. 104 (S.D.N.Y.), affirmed 278 F.2d 804 (C.A. 2), cert. denied. 364 U.S. 833, 81 S.Ct. 71, 5 L.Ed.2d 58, as follows: “It is well settled that an agreement to assign a patent and improvements thereon covers only improvements existing at the time the agreement was entered into unless the language specifically refers to future improvements. The law does not look favorably upon covenants which place ‘a mortgage on a man’s brain, to bind all its future products’. Aspinwall Manufacturing Co. v. Gill, C.C.D. N.J., 32 F. 697, 700. See, also Monsanto Chemical Works v. Jaeger, D.C. W.D.Pa., 31 F.2d 188; American Cone & Wafer Co. v. Consolidated Wafer Co., 2 Cir., 247 F. 335; Allison Bros. Co. v. Allison, 144 N.Y. 21, at page 29, 38 N.E. 956, at page 958. As was said in Allison, to effect an assignment of future improvements to a patent which the inventor may thereafter produce ‘the language of the contract must be very plain and evidence unmistakably that such an agreement was in the mind of the inventor’.” 176 F.Supp. at 127. In Mullins Mfg. Co. v. Booth, 125 F.2d 660, 663 (C.A. 6), this court said: “Courts of equity are loath to give their aid by construction to a contract, the enforcement of which will constitute a mortgage for life on the inventor’s brain, and bind all his future products.” A contract assigning future improvements and future inventions will be enforced only where the language evidencing such an intention is clear and convincing. In Ogden v. General Printing Ink Corp., 37 F.Supp. 572, 577 (D. Md.), the court quoted with approval the following language from Williston on Contracts, Rev.Ed., vol. 5, § 1643A, page 6414: “The governing rule in this class of cases is that where the product of an inventive mind is sought to be appropriated under an agreement to assign to another, the language of the agreement must be clear and show an unmistakable intention that the particular matter covered by the invention or patent is within the intention of the parties.” Such a contract is to be strictly construed against the grant of inventions that may be perfected in the future. Gas Tool Patents Corp. v. Mould, 133 F.2d 815, 818 (C.A. 7); Briggs v. M & J Diesel Locomotive Filter Co., 228 F.Supp. 26, 31 (N.D.Ill.), aff'd, 342 F.2d 573 (C.A. 7); cf. Gonser v. Leland Detroit Mfg. Co., 293 Mich. 196, 291 N.W. 631. We hold that the provisions of the 1950 contract are not sufficiently clear and free from ambiguity to meet the test announced and applied in the foregoing decisions; and that the language of this contract is not so specific as to embrace all future inventions that might be perfected by Messrs. Hoern and Dilts relating to the broad class of all “non-indexing, non-continuous” boring machines. To the contrary, in granting an exclusive license to “said Rotary-Cam Actuated Boring Machines” and future improvements thereon, the 1950 contract (see language quoted in footnote 4) by its terms includes (1) “machines of the general type shown in Blue Print T-300 annexed hereto” (which concededly does not embrace Patent No. 2,872,853 here involved) ; and (2) “improvements thereto, as shown, described and claimed in U. S. applications, Serial No. 642,352, filed January 19, 1946, and Serial No. 671,477, filed May 22, 1946.” The first “whereas” clause in the 1950 contract (footnote 4) limits the term “improvements” on Rotary-Cam Actuated Boring Machines to “certain improvements on said machines * * * shown, described and claimed in Applications for United States Patent, Serial Nos. 642,352 and 671,477.” The granting clause in-eludes “any Letters Patent owned or controlled by Licensors, or either of them, which may be granted on applications now or hereafter filed, and disclosing improvements on or relating to said Boring Machines * * * ” The term “applications * * * hereafter filed” is limited expressly to applications “disclosing improvements on or relating to said Boring Machines.” (Emphasis supplied.) The language of the disclosure clause of the 1950 contract is expressly limited to “any improvements in rotary-cam actuated boring machines of the type herein licensed.” (Emphasis supplied.) New Britain relies on both the 1946 and 1950 contracts. The latter is the controlling instrument defining the license granted to New Britain, since it amends the former contract by rewriting it in its entirety. It is of significance that the 1950 contract contains language that is more restrictive than the 1946 contract in several respects: (a) The granting clause of the 1946 contract contained a provision for “disclosing improvements on or relating to said boring machines and similar machines”. The words “and similar machines” are omitted from the 1950 contract, in which the comparable provision reads: “disclosing improvements on or relating to said Boring Machines.” (Emphasis supplied.) The 1950 contract contains no provision requiring disclosure of improvements on or relating to “similar machines.” (b) The 1950 Contract used the term “rotary cam actuated boring machines” instead of the more general term “boring machines” used in the 1946 agreement. (c) Another significant change between the 1946 contract and the 1950 contract is found in the disclosure clause. Under the 1946 contract, Messrs. Hoern and Dilts agreed to disclose to New Britain ‘‘any inventions, new designs, or methods of production in or relating to boring machines made or owned or controlled by them or either of them,” (emphasis supplied). Under the disclosure clause of the 1950 contract they agreed to disclose only “any improvements in rotary-cam actuated boring machines of the type herein licensed.” (Emphasis supplied.) Thus, the scope of the exclusive license granted by Messrs. Hoern and Dilts to New Britain is more restricted under the 1950 contract than under the broader language of the 1946 contract. When the parties undertook to settle their dispute in 1950, they wrote more restrictive language into their revised agreement, indicating an intention not to make the exclusive grant so broad and all-inclusive as now asserted by New Britain. In order to sustain its contention that Patent No. 2,872,853 comes within the scope of the exclusive license granted by the 1950 contract and accordingly that the patent whose mechanisms are used in the BY machine here in question is an exception within the special acknowledgement paragraph of the 1955 contract (footnote 7), New Britain must establish that this later patent is an “improvement on or relating to” the boring machine covered by Patents Nos. 2,641,146 (application No. 642,352) and 2,659,961 (application No. 671,477), which are the only patent applications identified as improvements to boring machines covered by the 1950 contract. Assuming that there is sufficient ambiguity on this point to permit the introduction of evidence, the burden of proof would be upon New Britain to show that Patent No. 2,872,853, whose mechanisms are used in the BV machine, is an exception under the “special acknowledgement” paragraph of the 1955 contract. In this situation, the law as to the burden of proof is that “A party who seeks advantage of an exception in a contractual stipulation as the basis of his claim is charged with the burden of proving facts necessary to bring himself within such exception.” Davies Flying Service v. United States, 216 F.2d 104, 106 (C.A. 6). To like effect see 17A C.J.S. Contracts § 579, p. 1114. While this is a contract case and not a patent case, we have read the language of the claims of Patent No. 2,872,853. These claims do not demonstrate that this patent is an improvement upon the boring machines covered by Patent Nos. 2,641,-146 and 2,659,961, the application for which is referred to in the 1950 contract. The application for Patent No. 2,872,853 makes reference to four earlier United States patents and three foreign patents by number, but no reference is made to the two applications identified in the 1950 contract. New Britain’s own advertising of the BV machine contradicts its contention that this machine is nothing more than an improvement over the boring machines licensed to it by the 1950 contract. The trade magazine “Machinery,” in its November 1960 issue, published an advertisement by New Britain regarding the BV machine, containing the following language: “Beyond a certain point, continued refinement of existing designs in machine tools ceases to make an appreciable contribution to performance. Thus in designing our New Series of Vertical Precision Boring Machines, we have incorporated several completely new design concepts to provide improved performance and greatly increase overall usefulness. * * * “In order to take the fullest advantage of the precision inherent in cam control, long linkages between cams and slides have been eliminated. A pair of cams is mounted on a common shaft which is carried within the vertical slide. Since all slide actuating forces are contained in the vertical slide, both cams are directly adjacent to the slides they control and no outside forces are imposed on the slide ways. The result is maximum rigidity for heavy cuts coupled with extreme accuracy for close tolerance work. “This unique and eminently workable approach to contour turning and boring results in the highest order of accuracy on even the most complex pieces. * * * ” In the issue of the trade magazine “The American Machinist” dated January 11, 1960, and March 21, 1960, New Britain described its BV machine in part as follows: “New Britain Cam Actuated Vertical Precision Boring Machines offer an entirely new principle for more accurate boring and turning, plus compact exterior design and fast tooling. Bough cuts and finish cuts within close tolerances on the same set-up are characteristic. Standard models are available with maximum swing from 12" to 17%" in 10 or 15 horsepower. “Here are a few of the major new developments incorporated in these unusual machines. * * * ” Brochures issued by New Britain in 1958 and 1959 include the following language in describing the BV machine: “This unique captive cam shaft feature, through the elimination of long actuating linkage, has resulted in an extremely compact accessible and simplified design with the obvious important advantages in maintenance and repairs.” New Britain’s president testified as a witness and undertook to establish that the BV machine here involved is an improvement on the boring machines licensed by the 1950 contract. He further testified, however, that New Britain’s above-quoted advertising was correct in describing the BV machine in question as offering “an entirely new principle for more accurate boring and tuning.” We reemphasize that the 1955 contract expressly mentioned Patent Application No. 400,531, filed December 28, 1953, upon which Patent No. 2,872,853 thereafter was issued, and listed it among the patents and patent applications owned by H & D Inc. This patent application is included in general terms among the “letters patent and patent rights” (footnote 6) upon which a non-exclusive license was’ granted to New Britain in 1955 and for which royalties were to be paid. Since express language excluding this patent is not to be found in the “special acknowl-edgement” paragraph or elsewhere in the 1955 contract, we cannot assume that the parties intended to make an exception in the “special acknowledgement” paragraph as contended by New Britain. This patent application already was in existence at the time the 1955 contract was executed, having been filed two years earlier. If the parties had intended for the “special acknowledgement” paragraph to apply to this patent, assuredly they would have said so. We hold that New Britain has not established that the BV machine here in question and Patent No. 2,872,853 come within the 1950 contract or the “special acknowledgement” paragraph of the 1955 contract. Accordingly we agree with the finding of the district court that New Britain is liable to Yeo et al. for royalties on this machine. k) The amount of the judgment Under date of December 6, 1963, following the filing of his opinion, Judge Roth entered an order stating that the court: “Finds, in conformity with said opinion, that it was the agreement and the intention of the parties that the defendant pay royalties to Hoern & Dilts, Inc., on the ‘BV’ contour machine, ' which admittedly uses mechanisms covered by patent application number 400,531; “The Court further finds that the rights of said Hoern & Dilts, Inc., were duly assigned to plaintiffs upon its dissolution and as former stockholders of said company; “It is therefore, ordered that the parties shall forthwith make an accounting between them to determine the amount of royalties due to date, together with interest at the rate of 5% computed from the due date of any royalty found to be due, and this Court retains jurisdiction of this matter pending such accounting and any problems relating to it.” Pursuant to this order, on January 28, 1964, New Britain filed an accounting which was sworn to by its president. This accounting contained the figures upon which the judgment was finally entered, except for minor corrections. After a dispute had arisen between the parties concerning the accounting, another hearing was held at which Judge Roth suggested the appointment of a master to take an accounting. Counsel for New Britain responded that “There is no need for a Master,” saying: “I think you misunderstood me when I said this was a massive job. What I was referring to as a massive job is the report which we submitted last January. This involved going into all transactions under the 1955 contract, all of our varieties of machines, their variations, the patents and patent claims. This job is not called for according to your Hon- or’s rulings you just handed down. The job has been done as a matter of fact, all except for any machines which may have been sold since the end of 1963. As a matter of fact, one entire separate section of our report was plainly identified with BV transactions, so that job was done. “There is no need for a Master. If it is your pleasure as you have just stated to have an accounting for the BV machines we even included a schedule of what the interest would be as your Honor requested it and that interest was specific to the BV machines. So that the job is done and we can easily undertake to complete it up to the date of this hearing today.” It was agreed that plaintiffs would send two men to the Connecticut offices of New Britain in order to facilitate the matter of accounting and avoid the necessity of appointing a master. New Britain’s attorney thereafter wrote a letter to the attorneys for Yeo et al., dated July 8, 1964, stating that only a few minor errors had been found in the previous account and “there would be a great savings of time and effort if the newly presented accounting for BV machines were merely to comprise a reproduction of the previous report.” (This reference is to the sworn accounting filed January 28, 1964.) Thereupon, Yeo et al. made a report to the court as to the purported agreement of the parties in Connecticut and asked that a judgment be entered in the sum of $171,342.42 plus interest in the sum of $28,620.98. At a subsequent hearing on September 21, 1964, extended arguments were made as to whether the judgment should be based on (1) the figures set forth in the sworn accounting filed by New Britain January 28, 1964, or (2) on the figures set forth in New Britain’s “corrected accounting” hereinafter discussed. Yeo et al. contended that royalties on the BV machine should be computed at the rate of five per cent of net sales under Section 4(b) of the 1955 contract, which is applicable to “Hoern & Dilts” machines. New Britain contended that the correct basis of computation was five per cent of the cost of mechanisms under Section 4(c), which is applicable to machines other than “Hoern & Dilts” machines. Judge Roth thereupon asked the attorney for New Britain whether, assuming the correct measure of royalties to be five per cent of net sales, as provided in Section 4(b) applicable to “Hoern & Dilts” machines, counsel would agree that the figures are accurate as set forth by New Britain in its sworn accounting of January 28,1964, as subsequently corrected by agreement of the parties. The answer of counsel was “Yes.” Thus, the amount of the judgment entered by the district court is based upon figures set forth in a sworn accounting filed by New Britain and thereafter corrected and substantially verified by the parties. We hold that the district court’s finding of the amount of royalties due is supported by the evidence. 5) The “corrected accounting” On August 20, 1964, shortly before the judgment was entered, New Britain filed a “corrected accounting”, alleging that the BV machine here involved was not a “Hoern & Dilts” machine, that New Britain had made a mistake by computing royalties at five per cent of net sales as provided under Section 4(b) for “Hoern & Dilts” machines, and that the correct amount owing under Section 4(c) of the 1955 contract was in the approximate sum of $7000, rather than the much larger sum indicated in its previous accounting. This “corrected accounting” was not filed until after the ease had been tried over a period of more than four years on the theory that the BV machine in question is a “Hoern & Dilts” machine and after the earlier accounting had been submitted by 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_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. Errol B. RESNICK, Plaintiff-Appellant, v. UNITED STATES PAROLE COMMISSION, et al., Defendants-Appellees. No. 86-1509. United States Court of Appeals, Tenth Circuit. Dec. 21, 1987. Rehearing Denied Feb. 23,1988. Cyd Gilman, Asst. Federal Public Defender, D. Kan. (Charles D. Anderson, Federal Public Defender, Wichita, Kan., with her on the brief), for plaintiff-appellant. Leon J. Patton, Topeka, Kan. (Benjamin L. Burgess, Jr., U.S. Atty., Wichita, Kan., Alleen S. Castellani, Asst. U.S. Atty., D. Kan., Topeka, Kan., with him on the brief), for defendants-appellees. Before MOORE, BALDOCK and McWILLIAMS, Circuit Judges. McWILLIAMS, Circuit Judge. Errol B. Resnick, an inmate in the United States Penitentiary, Leavenworth, Kansas, filed a petition for habeas corpus in the United States District Court for the District of Kansas against the United States Parole Commission, challenging a decision of the Commission which held that Resnick would continue to stay in prison for the time being and that he would not be afforded another parole hearing until April, 1992. 28 U.S.C. § 2241. The district court issued a show cause order, and the Commission filed an answer and return, to which Resnick filed a traverse. Based on the pleadings, and attachments thereto, the district court denied Resnick’s petition and dismissed the action. Resnick appeals. Resnick is presently incarcerated in the United States Penitentiary, Leavenworth, Kansas, pursuant to four sentences imposed by federal district courts in the State of Florida. The sentences thus imposed are to be served consecutively, and they total 34.5 years. Resnick has now served approximately 15 years under those consecutive sentences. Specifically, Resnick was sentenced on federal charges as follows: 1. 17 years by the United States District Court for the Southern District of Florida on November 2, 1971, upon a conviction for a narcotics conspiracy; 2. 10 years, to be served consecutively to the 17-year sentence referred to in paragraph 1, by the United States District Court for the Middle District of Florida on December 6, 1972, upon a conviction for unlawful melting of United States coins; 3. 2 years and six months, to be served consecutively to the sentences mentioned above, by the United States District Court for the Middle District of Florida on January 24, 1973, upon a conviction for illegal sale of firearms; and 4. 5 years, to be served consecutively to the sentences mentioned above, by the United States District Court for the Middle District of Florida on September 12, 1973, upon a conviction for conspiracy to escape and attempted escape. In addition to the four sentences mentioned above, Resnick is serving two life sentences imposed by state courts in Florida for hiring others to commit two murders. The Florida sentences were to be served concurrently with the federal sentences now being served. Resnick had his initial hearing before examiners of the United States Parole Commission on August 25, 1981. The examiners assigned an offense severity rating for each offense and aggregated those ratings to result in a greatest II rating, indicating that Resnick’s offenses were very serious. As concerns Resnick’s salient factor rating, the examiners fixed that at 10, indicating that he was a good parole risk. In this regard, the examiners noted that Resnick, while incarcerated, had earned a bachelor’s degree and a master’s degree, and was working toward a doctorate degree. Resnick was also highly recommended for parole by a former assistant educational director at the penitentiary. The examiners referred Resnick’s case to the National Commissioners on September 8, 1981, for original decision because of the unusual sophistication of the crimes involved and because of the possibility of an ongoing criminal conspiracy. On October 16, 1981, the National Commissioners determined that it needed more information concerning the scope of the offenses. A letter was written at that time by the National Commissioners to the U.S. Probation Office requesting more information. The matter was subsequently referred back to the examiners for further hearing, at which time information obtained from the United States Probation Office, as well as other matters, was to be considered. Resnick was informed on February 23, 1982, which was later corrected on March 2, 1982, that the hearing would be held on April 27, 1982. At the hearing on April 27, 1982, the examiners again gave Resnick a salient factor score of 10, and an offense severity rating in the greatest II category. The case was again referred to the National Commissioners with a recommendation that release of Resnick at that time would depreciate the seriousness of his several offenses, which recommendation noted Res-nick’s state criminal convictions, as well as the four federal convictions, and recommended that Resnick be kept in custody until April 1, 1992, when a new parole hearing would be held. On June 4, 1982, the National Commissioners adopted the recommendations of the hearing examiners. Resnick’s subsequent appeal to the National Appeals Board was denied, whereupon Resnick instituted the present proceeding. The present appeal raises two issues: (1) The offenses for which Resnick was convicted and sentenced having occurred in 1971, 1972, and 1973, does the application of statutes and regulations in effect at the time of Resnick’s parole board hearings in 1981 and 1982 violate the ex post facto provision of the United States Constitution, Article 1, Section 9, Clause 3? (2) Were Resnick’s due process rights violated by arbitrary and capricious action on the part of the Commission? Ex Post Facto Article I, Section 9, Clause 3, of the Constitution provides that, “No Bill of Attainder or ex post facto law shall be passed.” 18 U.S.C. § 4206(a), in effect at the time of Resnick’s parole hearings, provides as follows: (a)If an eligible prisoner has substantially observed the rules of the institution or institutions to which he has been confined, and if the Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines: (1) that release would not depreciate the seriousness of his offense or promote disrespect for the law; (2) that release would not jeopardize the public welfare; subject to the provisions of subsections (b)and (c) of this section, and pursuant to guidelines promulgated by the Commission pursuant to section 4203(a)(1), such prisoner shall be released. # # * # * * (c)The Commission may grant or deny release on parole notwithstanding the guidelines referred to in subsection (a) of this section if it determines there is good cause for so doing: Provided, That the prisoner is furnished written notice stating with particularity the reasons for its determination, including a summary of the information relied upon. In denying Resnick present parole and continuing the matter for a 10-year reconsideration to April, 1992, the National Commissioners spoke as follows: REASONS: Your offense behavior has been rated as Greatest II severity because you were involved in melting $9,000 in U.S. coins, sold firearms without filing the appropriate ATF forms, smuggled approximately 900 lbs. of marijuana and you had two individuals murdered (as evidenced by your Florida conviction) in conjunction with the marijuana offense. Your salient factor score (SFS-81) is 10 (see attached sheet). You have been in custody a total of 130 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a minimum of 52 months to be served before release for cases with good institutional program performance and adjustment. In addition, you attempted to escape from a secure facility and guidelines established by the Commission for that offense indicate a customary range of 6-12 months to be added to your minimum range of 52 months. Your combined minimum range is 58 months. After review of all relevant factors and information presented, it is found that your release at this time would depreciate the seriousness of your offense behavior. Commission guidelines for Greatest II severity cases do not specify a maximum limit. Therefore, the decision in your case is based in part upon a comparison of the relative severity of your offense behavior with the offense behaviors and time ranges specified in the Greatest I severity category. In rendering this decision, the Commission also noted that the victims were murdered in an especially brutal fashion; one victim was mutilated by being covered with lye and the other thrown out of a car and left by the roadside. Also, during the attempted escape, a hostage was taken. In essence, then, the National Commissioners denied Resnick present parole and postponed reconsideration to April, 1992, because his present release “would depreciate the seriousness of ... [Resnick’s] offense behavior” which formed the basis for his four federal convictions. In making that decision, the Commission also “noted” that in each of the homicides for which Resnick was convicted of murder under Florida law the victims were treated in especially brutal manner, one victim being mutilated when covered with lye and the other thrown out of a car and left by the roadside. Resnick’s ex post facto argument, as we understand it, is that in denying parole the Commission concluded that to release Resnick now would, in the language of 18 U.S.C. § 4206(a)(1), “depreciate the seriousness of his offense behavior,” and that such language did not appear in 18 U.S.C. § 4203 (enacted in 1948) (the predecessor statute to 18 U.S.C. § 4206(a)(1)), which was in effect at the time of his four federal convictions. In other words, counsel argues that at the time Resnick suffered his four federal convictions, parole could not have been denied on the ground that to grant parole would “depreciate the seriousness of his offense behavior,” and that the statute in effect at the time of his parole hearing which permitted denial of parole on that ground violated the ex post facto provision. We do not agree with Resnick’s premise that in 1971-73 parole could not be denied, notwithstanding any guidelines, on the ground that to grant parole would have depreciated the seriousness of the underlying offenses. In Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981), a case involving a Florida statute which reduced the “gain time” for good conduct and obedience to prison rule, the Supreme Court held that for a criminal or penal statute to be ex post facto it must be retrospective, i.e., it must apply to events occurring before its enactment and it must “disadvantage” the person affected by it. The district court in the instant case concluded that although § 4206(a)(1) was applied retroactively, that such application did not “disadvantage” Resnick. We agree. The enormity or magnitude of the offenses which form the basis for a prisoner’s incarceration has always been a basis for denying parole, notwithstanding guidelines. And this is true even though the predecessor statute to § 4206(a)(1) did not contain the “depreciate the seriousness of the offense” language. The predecessor statute did provide that parole could be granted if it appeared that there is a reasonable probability that the prisoner will live and remain at liberty without violating laws, and if the Commission believes that “such release is compatible with the welfare of society.” In Wiley v. United States Board of Parole, 380 F.Supp. 1194 (M.D.Pa.1974), the court held that denying parole on the ground that to grant parole would “depreciate the seriousness of the offense” came within the language of the predecessor statute, commenting that the seriousness of the offense is a factor which is related to and could be “determinative of the question of whether the prisoner’s release is compatible with the welfare of society.” We agree with such reasoning. Indeed the enormity and magnitude of the underlying offenses for which the prisoner is incarcerated has always been a most important factor in determining whether an inmate should be paroled. And we agree that “early parole” in such a case might tend to “depreciate” the seriousness of the inmate’s criminal behavior. We regard Resnick’s ex post facto argument to be directed mainly to the statute above referred to, § 4206(a)(1). However, counsel does also complain that the guidelines applied in Resnick’s parole hearings in 1981 and 1982 also violated the ex post facto clause. We fail to see just what guidelines were applied which “disadvantaged” Resnick. Indeed, the thrust of Res-nick's entire argument is that the guidelines in effect in 1981-1982 suggested Res-nick’s early parole release and that the Commission erred in going outside the guidelines. In this general connection, however, we note that the decided weight of authority is that guidelines of this sort, being guidelines only, are not subject to the ex post facto prohibition. Beltempo v. Hadden, 815 F.2d 873, 875 (2d Cir.1987); Wallace v. Christensen, 802 F.2d 1539, 1553-54 (9th Cir.1986). Due Process We fail to see that Resnick’s due process rights were violated in either of the two proceedings before the Commission. He was given notice under the then existing statute regulations and his request for documents was belated, untimely, and nonspecific. Nunez-Guardado v. Hadden, 722 F.2d 618 (10th Cir.1983) has present pertinency. In that case we upheld Commission action which departed from the guidelines and fixed the inmate’s parole date above the guidelines’ recommended date of release, stating that “judicial review” of Parole Commission action is “narrow” and that the test is whether the decision of the Commission is arbitrary or capricious, or an abuse of discretion. We also noted that “prison conduct” is only one of the factors to be considered in parole release decision. We further held that consideration by the Commission of criminal acts other than the one count to which the defendant had pleaded guilty after plea bargaining was proper. And having held that the Commission’s action was not arbitrary or capricious, or any abuse of discretion, but was based on “good cause” and was non-viola-tive of due process, we declined to reach the issue of whether the federal parole statutes create a liberty interest. In sum, although Resnick had attempted escape in Florida, he apparently had a very favorable record in the penitentiary in Leavenworth, Kansas. However, the Commission concluded that the magnitude of the federal crimes for which Res-nick had been convicted, coupled with the two state convictions for murder, which were apparently related to his federal conviction for drug conspiracy, amounted to a “good cause” for denying present parole, since to grant present parole would “depreciate” the seriousness of his offenses. Such, in our view, constitutes a “rational basis” for the Commission’s action. Nunez-Guardado, 722 F.2d at 623; Solomon, 676 F.2d at 290. Judgment affirmed. . In Dunn v. U.S. Parole Commission, 818 F.2d 742, 744 (10th Cir.1987), the court held that a district court had subject matter jurisdiction over a habeas corpus proceeding despite the fact that the Parole Commission rather than the warden of the prison was named in the petition. The court reasoned that: “[ajlthough the Leavenworth warden cannot be said to be indifferent to the resolution of Mr. Dunn’s challenge, only in the most formal sense does he control whether Mr. Dunn is released ... [r]ather, ... the Commission directly control(s) whether Mr. Dunn remains in custody." . Resnick earned his bachelor’s degree in psychology, his master's degree is in the field of numismatics, and he is working toward a doctorate in finance. . In Solomon v. Etsea, 676 F.2d 282, 287 (7th Cir.1982), the Seventh Circuit stated that the "magnitude” of a prisoner’s individual crime may be the "good cause” referred to in 18 U.S.C. § 4206(c) for which the Commission may deny parole notwithstanding the guidelines and that "[i]t is the extenuating circumstances of the particular offense, not the nature of the violation categorizing him in the guidelines, which must make up the necessary good cause." . The predecessor statute, 18 U.S.C. § 4203(a) stated: "If it appears to the Board of Parole from a report by proper institutional officers or upon application by a prisoner eligible for release on parole, that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole.” . 28 C.F.R. § 2.55(a) provides: "at least 60 days prior to a hearing scheduled pursuant to 28 C.F.R. 2.12 or 2.14 each prisoner shall be given notice of his right to request disclosure of the reports and other documents to be used by the Commission in making its determination.” 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_counsel1

D

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party CREDIT ALLIANCE CORPORATION, Plaintiff-Appellant, v. Patricia Ann CAMPBELL, Defendant-Appellee. No. 87-1385. United States Court of Appeals, Seventh Circuit. Argued Oct. 26, 1987. Decided April 29, 1988. Sol D. Bromberg, New York City, Corneal L. Domeck, III, Louisville, Ky., for plaintiff-appellant. James F. Flynn, Newman, Trockman, Lloyd, Flynn, & Rheinlander, P.C., Evansville, Ind., for defendant-appellee. Before BAUER, Chief Judge, WOOD and MANION, Circuit Judges. HARLINGTON WOOD, Jr., Circuit Judge. This case is an appeal from the district court’s grant of defendant’s motion for relief from judgment under Federal Rule of Civil Procedure 60(b). Plaintiff had obtained on October 21, 1980, a default judgment in the Southern District of New York enforcing a guaranty contract against the defendant. The judgment was in the amount of $1,302,954.80. The plaintiff registered the judgment in the District Court for the Southern District of Indiana on December 4, 1980 in accordance with 28 U.S.C. § 1963 (1982). On January 9, 1984, Patricia Campbell filed her motion for relief in the district court in Indiana. The court granted this motion on November 26, 1984. We reverse the district court’s grant of relief setting aside the judgment. I. FACTUAL BACKGROUND In late 1977 or early 1978 Ralph Douglas Campbell, the defendant’s husband, was a heavy equipment salesman for Stockberger Machinery, Inc. Steve Stockberger, Campbell, another salesman, Tom Marshall, and a physician, James Spahn, entered into a partnership they called Indicoal. The partners’ intention was to strip-mine coal at a mine in Kentucky, and, to further this purpose, the partners acquired equipment from the Stockberger Company. A Credit Alliance sales representative, Harold Kap-lan, sold floor-plan and end-user financing arrangements for Credit Alliance Corporation in the Evansville, Indiana area. Kap-lan arranged financing for the business venture through Credit Alliance. The partners executed a conditional sales contract with Stockberger on May 18, 1978; Stock-berger assigned the contract to Credit Alliance the same day; and the partners and their wives, including the defendant, signed a guaranty for Indicoal’s debts on May 22, 1978. There was undisputed testimony that the wives did not play an active role in Indicoal’s operations. The defendant signed the guaranty without reading it, and she did not receive a copy of the document. Indicoal began to experience financial difficulties soon after its formation, and fell behind in its payments to Credit Alliance. Meanwhile, the defendant and her husband developed serious marital difficulties which led to their separation at the end of 1978 and divorce in March of 1979. On September 29, 1978, Indicoal and Credit Alliance entered into an agreement to extend Indicoal’s payment period. Although the original guaranty had provided that the guarantors consented to “any agreement or arrangements whatever with subject or anyone else, including without limitation, agreements and arrangements for payment extension,” Credit Alliance customarily executed new extension agreements with all guarantors. The defendant’s husband signed the agreement for the defendant without her knowledge or consent. Credit Alliance granted Indicoal a second extension on March 29, 1979, again without the knowledge or consent of the defendant, whose marriage to Campbell had been dissolved two weeks earlier. On January 15, 1980, Credit Alliance compromised and settled the Indicoal debt with Dr. Spahn and on August 14, 1980, compromised and settled with the Mar-shalls. A proposed settlement March 6, 1980, between Credit Alliance, Campbell, and Marshall fell through when Campbell’s check was dishonored. The defendant was unaware of these events. On May 2, 1980, the plaintiff filed this action in the United States District Court for the Southern District of New York. In accordance with the terms of the guaranty, summonses were served on Credit Alliance as agent for the defendants. Credit Alliance sent two certified letters to the defendant notifying her of the lawsuit, but both letters were returned. The defendant remained unaware of the lawsuit, the entry of default judgment October 21, 1980, and the registry of the judgment in the Southern District of Indiana December 4, 1980, until shortly after the United States Marshal attached all the funds in her bank account. The writ of execution was issued, and the defendant became aware of it, in November of 1983. The defendant filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). The Southern District of Indiana stayed enforcement of the New York judgment. The parties stipulated, contrary to the guaranty language, that Indiana was the proper forum and Indiana law should apply. We find this to be a reasonable stipulation as to the applicable law. Marmon Group, Inc. v. Rexnord, Inc., 822 F.2d 31, 34 n. 2 (7th Cir.1987); Lloyd v. Loeffler, 694 F.2d 489, 495 (7th Cir.1982). On November 10, 1986, the court heard evidence on the motion. The court considered defendant’s arguments that the guaranty was unsupported by consideration and that her obligation had been so altered as to discharge her. The court found validity in the latter assertion, and granted defendant’s motion. II. DISCUSSION Although the parties did not raise the issue, we first consider the propriety of the Indiana courts as a forum for defendant’s Rule 60(b) motion. “The decision to grant or deny relief under Fed.R.Civ.P. 60(b) is committed to the discretion of the trial court.” Fuhrman v. Livaditis, 611 F.2d 203, 204 (7th Cir.1979). We therefore need only determine whether the court abused its discretion. In the Fuhrman case Fuhrman, a citizen of Iowa, sued Livaditis, a citizen of Illinois, in the Northern District of Iowa, based on diversity of citizenship. Process was served by certified mail. The return receipt indicated that Livaditis had received notice of the suit. He did not file an appearance and the court entered a default judgment against him. Notice of the default judgment was sent through certified mail to the defendant. Fuhrman registered the judgment in the Northern District of Illinois pursuant to 28 U.S.C. § 1963. Almost a year after the judgment was registered in Illinois, Livadi-tis filed a motion for relief from judgment under Rule 60(b). The Northern District of Illinois denied the motion without prejudice, noting that Livaditis could file his motion in the Northern District of Iowa, the court that rendered the judgment. As we mentioned on appeal, “[o]rdinarily, a motion for relief from judgment is addressed to the court which rendered judgment.” 611 F.2d at 204. Generally, “it is more convenient for motions for relief from judgment to be addressed to the [rendering] court.” Id. Two policy considerations support the general rule: (1) comity among the federal district courts is furthered if the registering court refers the question of relief from judgment to the court which ordinarily entered the judgment; (2) efficient judicial administration is furthered if the registering court defers to the original court, which is likely to be more familiar with the issues raised by the motion for relief from judgment. Id. In Fuhrman, as here, there was no litigation with which the rendering court could become familiar. There was simply a default. In Fuhrman, however, Livaditis argued that the rendering court lacked personal jurisdiction over him. This challenge required the court to apply the laws of the state of Iowa, laws with which the district court in Iowa was more familiar than was the district court in Illinois. The federal court in Iowa was thus a more convenient forum for the motion. The defendant here does not argue that the district court in New York lacked personal jurisdiction over her. The terms of the guaranty provided that an attorney for Credit Alliance would accept service of process for the guarantors, and that they would “agree to the venue and jurisdiction of any court in the State and County of New York.” They agreed as well that the guaranty “shall be interpreted according to the laws of the State of New York.” The defendant instead asserted that there was no consideration for her guaranty, that she terminated her consent, and that she was discharged. Because the parties stipulated to the application of Indiana law before the court in Indiana there was no reason to defer to the district court in New York on the interpretation of state law. And because the judgment was a default judgment, the rendering court had no more familiarity with the facts than did the registering court. Additionally, when “the creditor seeks to utilize the enforcement machinery of [the registering] district court it is not unreasonable to hold that the [registering] court has the power to determine whether relief should be granted the judgment debtor under 60(b).” 7 Moore’s Federal Practice ¶ 60.28[1], at 60-313 (2d ed. 1987). We therefore believe that the district court for the Southern District of Indiana was an appropriate forum for the defendant’s Rule 60(b) motion. There was no abuse of discretion in the court’s decision to entertain the motion. As to the merits of the defendant’s motion, we cannot reach the same conclusion. We find that the district court abused its discretion in granting defendant’s Rule 60(b) motion. Although “[t]his circuit has a well-established policy favoring a trial on the merits over a default judgment,” C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1205 (7th Cir.1984), a default judgment will not be set aside unless “ ‘the moving party ... alleges a meritorious defense to the action.’ ” A.F. Dormeyer Co. v. M.J. Sales & Distrib. Co., 461 F.2d 40, 43 (7th Cir.1972) (quoting Thorpe v. Thorpe, 364 F.2d 692, 694 (D.C.Cir. 1966)); see also Passarella v. Hilton Int’l Co., 810 F.2d 674, 675-76 (7th Cir.1987). The defendant’s arguments do not present a meritorious defense to the plaintiff’s action. The defendant argues that her guaranty was not supported by consideration, that she terminated her consent to the guaranty, and that she was discharged from her obligation by the plaintiff’s extensions of the guaranty. The district court discussed only the latter issue, finding that there was “an alteration of her obligation that effected a discharge.” This finding is incorrect under Indiana law. It is undisputed that the defendant signed the original guaranty of Indicoal’s obligations. It is also undisputed that she did not read the document, that it was not explained to her, and that she did not receive a copy of it. This is unfortunate; under Indiana law, as in most jurisdictions, however, “[a] person is presumed to understand the documents which he signs.” Carney v. Central Nat. Bank, 450 N.E.2d 1034, 1038 (Ind.App.1983). The defendant has described the stressful circumstances under which she. signed the agreement. Although we are sympathetic to her distress, the defendant has not suggested that her signature was obtained by duress or undue influence, and she has not cited to us cases which would justify relieving her from her contractual obligations because of her emotionally trying situation. We therefore must find that she bound herself to the terms of the guaranty. Those terms included consent without notice “to any agreement or arrangements whatever with subject or anyone else, including without limitation, agreements and arrangements for payment extension, subordination, composition, arrangement, discharge or release of the whole or any part of the Security Obligations.” The defendant argues that Credit Alliance’s extensions of the guaranty so altered her obligation that she was discharged. She points out that an unconsented extension of time for payment or an agreement to compromise and settle the principal obligation discharges a guarantor. Id.; Indiana University v. Indiana Bonding & Surety Co., 416 N.E.2d 1275, 1280 (Ind.App.1981); Lutz v. Frick Co., 242 Ind. 599, 602, 181 N.E.2d 14, 16 (1962). This assertion, while true, overlooks the fact that the defendant consented to the extensions and settlements when she signed the guaranty. Although “ordinarily a surety is released if the creditor, without consent of the surety, renews the note, extends the time of payment, impairs the collateral, or alters the contract with the principal; prior consent contained in the instrument is sufficient to bind the surety.” Franklin Bank & Trust Co. v. Reed, 496 N.E.2d 596, 602 (Ind.App.1986), aff'd in part and vacated in part, 508 N.E.2d 1256 (Ind.1987); Carney, 450 N.E.2d at 1038. Indiana law provides that a guarantor is a surety. Id. at 1036 (citing Ind.Code § 26-1-1-201(40)). The defendant also directs us to cases holding that revocation of a continuing guaranty terminates a creditor’s rights to alter the obligation without notice to and consent of the guarantor. She argues that she revoked her consent by unknowingly failing to execute her consent on the extension agreements. She bolsters this evanescent argument by citing Indiana cases that hold a continuing guaranty may be revoked in a reasonable manner. Houin v. Bremen State Bank, 495 N.E.2d 753, 758 (Ind.App.1986) (citing LaRose v. Logansport Nat. Bank, 102 Ind. 332, 344-45, 1 N.E. 805, 812 (1885)); Vidimos, Inc. v. Vidimos, 456 N.E.2d 455, 458 (Ind.App.1983) (citing LaRose ). Again it is true that Indiana recognizes revocations that are reasonable under the circumstances. It is also true, how ever, that guaranties are interpreted in the same manner as are other contracts, Kordick v. Merchants Nat. Bank & Trust Co., 496 N.E.2d 119, 122 (Ind.App.1986); Loudermilk v. Casey, 441 N.E.2d 1379, 1383 (Ind.App.1982), and where the guaranty language is unambiguous, “the construction of the guaranty is a question of law.” Skrypek v. St. Joseph Valley Bank, 469 N.E.2d 774, 777 (Ind.App.1984); Loudermilk, 441 N.E.2d at 1383. “Parol evidence is inadmissible where there is no ambiguity in the [guaranty] language.” Skrypek, 469 N.E.2d at 777. The guaranty at issue here clearly states that the guarantors must provide written notice of their termination. The language is unambiguous. In the Vidimos case, by contrast, the guaranty did not specifically provide for a method of revocation. “A continuing guaranty which is for an indefinite period is revocable by the guarantor provided that he does so reasonably.... This right of revocation exists absent any provision in the guaranty agreement recognizing it.” Vidimos, 456 N.E.2d at 458 (citations omitted). The court’s concern in this case was that the guaranty not be understood as irrevocable, when it did not explicitly provide for a method of revocation. Where the parties agree to a method for revoking the guaranty, as in Houin, that method should be followed. Although the defendant relies on Houin for the proposition that any reasonable method of revocation is effective, the Houin court specifically stated, albeit in dicta, that “oral notice of revocation when the contract called for written notice was not reasonable.” Houin, 495 N.E.2d at 759. The defendant suggests that the “revocation event occurred in the only reasonable manner one can employ, when one is permitted to remain ignorant of the guaranty: By Mrs. Campbell’s failure to execute her consent on the Extension Agreement prepared by Credit Alliance for her signature.” The defendant, however, had consented to the extension in the original guaranty. This prior consent was binding. Franklin Bank, 496 N.E.2d at 602; Carney, 450 N.E.2d at 1038. Thus her failure to sign an unnecessary extension agreement cannot be said to effect a revocation. The defendant remained bound by the terms of her guaranty. Extensions of the time for payment, because of her earlier consent, did not discharge the defendant. Although we, like the district court, are sympathetic to the defendant’s plight, we find that the district court abused its discretion in finding under Indiana law that the defendant was discharged. The fact that the defendant did not receive actual notice of the plaintiffs suit in the Southern District of New York does not relieve the defendant from her obligations. By the .terms of the guaranty she waived her right to personal service of process. She and the other guarantors designated a New York attorney and Credit Alliance as agents for service of process, with notice of such service to be sent by mail to the guarantors within three days at the address shown on the guaranty. The plaintiff fulfilled its obligations by sending two letters by certified mail to the address defendant had provided on the guaranty. These letters were returned to the plaintiff, however, because the defendant had moved to a new address. The defendant’s failure to notify the plaintiff of her change of address is perhaps understandable in light of the fact that she did not read the guaranty before (or after) signing it; as we discussed above, however, the defendant is bound by the terms of the guaranty. She cannot now complain about the plaintiff’s failure to notify her of the lawsuit when the failure was a result of defendant’s own actions. The defendant argues that the guaranty was not supported by consideration. The district court apparently found this argument to be meritless and did not discuss it. We also find no merit to this contention. The guaranty was dated May 22, 1978. The conditional sales contract and the assignment were dated May 18, 1978. The check that Credit Alliance issued to Stock-berger Machinery for Indicoal’s purchase of the mining equipment was dated May 23, 1978. The guaranty’s stated purpose was to induce Credit Alliance to accept the assignment from Stockberger Machinery. Credit Alliance did accept the assignment as evidenced by its issuance of the check to Stockberger Machinery. Where a guaranty is executed subsequently to the principal contract, in order for the guaranty to be regarded as being made at the same time so as to constitute a part of the same transaction and be supported by the same consideration it must generally be shown that: (1) The guaranty was executed pursuant to an understanding had before and was an inducement to the execution of the principal contract; or (2) The guaranty was delivered before any obligation or liability was incurred under the principal contract; or (3) The guaranty was made pursuant to a contract provision; or (4) The principal contract does not become operative until the execution of a guaranty; or (5) The guaranty expressly refers to a previous agreement between the principal debtor and creditor which is exec-utory in its character and embraces prospective dealings between the parties. Davis v. B.C.L. Enters., Inc., 406 N.E.2d 1204, 1205-06 (Ind.App.1980). Because these requirements are expressed in the disjunctive, only one need be satisfied to demonstrate that the guaranty is supported by consideration. We believe that the first requirement, at least, is satisfied. The guaranty was executed on May 22, 1978, in order to induce the plaintiff, Credit Alliance, to accept the assignment of the conditional sales contract. The conditional sales contract, dated May 18, 1978, reflected the seller’s intention to assign the contract. The plaintiff accepted this assignment when it issued its check to Stockberger Machinery on May 23, 1978, one day after the guaranty was executed. The guaranty was supported by adequate consideration. III. CONCLUSION Because we have found that the defendant raised no meritorious defenses to the default judgment entered against her, we find the district court abused its discretion in granting defendant’s Rule 60(b) motion for relief from judgment. Each party shall bear its or her own costs. The district court’s order is therefore Reversed. Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:

songer_casetyp1_2-3-3

I

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "civil rights - other civil rights". Ronnie STRICKLIN, Richard B. Rosen-feld and James Michael Strickler, Plaintiffs-Appellees, v. The REGENTS OF the UNIVERSITY OF WISCONSIN and the President of the University of Wisconsin, Defendants-Appellants. No. 17597. United States Court of Appeals Seventh Circuit. Jan. 13, 1970. Robert W. Warren, Atty. Gen., Charles A. Bleck, Warren M. Schmidt, Asst. Attys. Gen., Dept, of Justice, Madison, Wis., for defendants-appellants. Sander N. Karp, Percy L. Julian, Jr., Madison, Wis., W. Haywood Burns, Jack Greenberg, Michael Meltsner, New York City, for plaintiffs-appellees. Before KILEY, FAIRCHILD and CUMMINGS, Circuit Judges. KILEY, Circuit Judge. The Regents and President of the University of Wisconsin have appealed from an interlocutory order, in a civil rights class action, ordering them to reinstate as students the three named plaintiffs who had been temporarily suspended from the University. Plaintiffs, students then in good standing at the University of Wisconsin, were arrested February 27, 1969, during campus disorders. On March 6 the Regents met and, after hearing a report from the University security agency that plaintiffs had participated in the February 27, and earlier, campus disorders, adopted a resolution suspending the plaintiffs “immediately” pending the filing of charges by the University administration, on or before March 8, to be heard on March 19. A “hearing agent” was named to conduct the hearing and report his findings of fact and recommendations to the Regents for review and action by them. On March 7, the day after the Regents’ meeting, plaintiffs filed a class action civil rights complaint in the district court alleging violations of Fourteenth Amendment due process and equal protection rights on the grounds that they were not informed — before the Regents’ March 6 action suspending them — of the charges against them, and that they had no notice of the meeting and no opportunity to be heard. They sought a declaration that their summary suspension was unlawful and an injunction against enforcement of the suspension and against the refusal of the Regents to reinstate them as students. They also moved for a “temporary restraining order” to stay the suspension pending ultimate determination of the charges to be filed against them on March 8 by virtue of the Regents’ resolution. On March 12 a hearing was held on plaintiffs’ motion, and on March 13 the district court filed an Interim Opinion and Order, which was amended on March 14. The substance of this entry was to lay ground rules with respect to the burden of proof. The only definitive finding was that the plaintiffs had met their burden to establish prima fa-cie that their suspension was for a substantial period of time without previous specification of charges, notice of hearing and opportunity to be heard; and that the Regents had the burden of showing that the summary termination of each of the plaintiffs — pending the ultimate disposition of charges filed against them — was required by reasons relating to the physical or emotional safety and well-being of the plaintiffs and of other students, faculty, other personnel and University property. Additional affidavits were then submitted. On March 18, the day before the full hearing of charges was scheduled to begin, the district court entered the Opinion and Order before us. The court, having established federal question jurisdiction, found: that the Regents acted under color of state law; that prior to the Regents’ meeting of March 6 plaintiffs were given no notice or specification of charges and had no opportunity to be heard at the meeting; that since that meeting they were given no opportunity to be heard on the question whether their “immediate” suspension should be continued pending ultimate determination of charges against them; and that the Regents had no intention of reinstating plaintiffs as students during that interim period. The court found that the Regents had not met the burden defined in the court’s March 13 Interim Opinion and Order. It concluded that under the Regents’ by-laws, as well as under the Fourteenth Amendment, plaintiffs were denied due process because the Regents had made no showing “whatever” that it was impossible or unreasonably difficult to have provided a preliminary hearing prior to the interim suspension order, or a hearing since March 6 on the question whether the interim suspension should continue until completion of the full hearing and the Regents’ ultimate determination thereafter. The court ordered plaintiffs reinstated at noon March 19, without prejudice to the Regents’ rights to impose interim suspension under the due process procedures outlined in the opinion, and to proceed with the full hearing on the charges filed and take appropriate action thereafter. This appeal followed. Plaintiffs contend that the March 18, 1969, order is not appealable and that even if it is, the issue presented to us is moot. We hold the order is appealable. While contending that a temporary restraining order is not appealable under 28 U.S.C. § 1292(a) (1), plaintiffsappellees concede that the label used by the parties in the district court is not controlling on the appealability question. The order under consideration was entered after notice, a March 12 hearing, and a subsequent consideration of additional affidavits, findings of fact and conclusions of law. The order granted affirmative substantive relief. See International Products Corp. v. Charles A. Koons & Co., 325 F.2d 403, 406 (2d Cir. 1963) . These elements were not present in an order held not appealable in Austin v. Altman, 332 F.2d 273 (2d Cir. 1964) , relied on by plaintiffs. The fact that other issues raised by the pleadings in the district court are still pending there does not preclude appealability. American Cyanamid Co. v. Lincoln Laboratories, Inc., 403 F.2d 486, 488 (7th Cir. 1968). We decide, however, that the issue presented to us is moot. The full hearing upon the charges filed against plaintiffs by the Regents has been completed, and plaintiffs have been expelled from the University. The March 18 order, which allowed the Regents to proceed with the hearing scheduled for March 19, became functus officio when the Regents took final action after completion of the full hearing. We are not persuaded by the Regents’ arguments that we should decide the issue of whether due process requires the procedural safeguards, imposed by the district court, prior to an immediate suspension pending a final hearing because of its great public importance; that we should furnish a guide for conduct of “school authorities”; and that the result of a mootness finding will leave standing a precedent militating against school authorities properly dealing, in the future, with additional problems of student discipline. Although we hold the March 18 order is appealable, it does not follow that its provisions were of great public importance. It affected only the three named plaintiffs, and them only for the short period until they were expelled in further disciplinary proceedings. We are not disposed on the record before us to decide a moot issue simply because, as contended by counsel for the Regents, the issue will probably arise in the future. Brockington v. Rhodes, 396 U.S. 41, 90 S.Ct. 206, 24 L.Ed.2d 209 (U.S. Nov. 24, 1969); Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (U.S. Nov. 24, 1969). Appellants rely on the decision in Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), where the Supreme Court declined to find mootness despite the voluntary abandonment by the State of Georgia of its illegal practice of using the county unit system in primary elections. The Court thought that if the complaint was dismissed the laws establishing the county unit system would remain on the books, would govern elections, and “appellants would be ‘free to return to * * * [their] old ways.’ ” Id. at 376, 83 S.Ct. at 806. There the Georgia laws had been held void under Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Here, however, the Regents’ by-laws have not been held invalid; rather, the district court thought their provisions coincided with requirements of due process and were not complied with as to these plaintiffs. And, further, we cannot speculate that the three students will be readmitted to the University and will subsequently cause the Regents to continue “their old ways.” This consideration renders Boggess v. Berry Corp., 233 F.2d 389, 391, 16 Alaska 256 (9th Cir. 1956), and Pierce v. La Vallee, 293 F.2d 233, 234 (2d Cir. 1961), inapposite. The appeal from the district court’s order granting a temporary restraining order is hereby dismissed. The dismissal of the appeal, however, should not be read as an approval of the order. Appeal dismissed. . Jurisdiction is asserted under 28 U.S.C. § 1331, et seq., 42 U.S.C. §§ 1981, 1983, and 1985, and the Fourteenth Amendment; the complaint also seeks declaratory judgment relief under 28 U.S.C. §§ 2201, 2202. . On March 14 the words “summary termination” were substituted for the words “continued presence” in the order. . The by-laws, chap. V, Sec. 5(b), read: (1) The administration may, in those cases where there is a strong indication that a student’s misconduct will be repeated or continued or where the administration believes it is necessary to permit the University to carry on its functions, impose immediate suspension with resultant loss of all student rights and privileges, pending hearing before the all-faculty disciplinary committee. The student has a right to immediate hearing on the limited question of whether suspension should remain in effect until the full hearing is completed. (2) In all situations other than set out in (1) above, the Administration, after adequate investigation and notice and opportunity to be heard to the student, is empowered to impose any disciplinary punishment less severe than suspension. In any such case a student may appeal and request a hearing before the all-faculty disciplinary committee. Question: What is the specific issue in the case within the general category of "civil rights - other civil rights"? A. alien petitions - (includes disputes over attempts at deportation) B. indian rights and law C. juveniles D. poverty law, rights of indigents (civil) E. rights of handicapped (includes employment) F. age discrimination (includes employment) G. discrimination based on religion or nationality H. discrimination based on sexual preference federal government (other than categories above) I. other 14th amendment and civil rights act cases J. 290 challenge to hiring, firing, promotion decision of federal government (other than categories above) K. other civil rights Answer:

songer_casetyp1_2-3-3

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "civil rights - other civil rights". Angela Morris Amado ROCHA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 6505. United States Court of Appeals First Circuit. Heard Sept. 13, 1965. Decided Oct. 14, 1965. Martin T. Camacho, Boston, Mass., for petitioner. John M. Callahan, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., was on brief, for respondent. Before ALDRICH, Chief Judge, J. WARREN MADDEN, Senior Judge and JULIAN, District Judge. Sitting by designation. ALDRICH, Chief Judge. This is a petition to review a judgment of the Board of Immigration Appeals affirming a denial of a certificate of citizenship and an order of deportation. The case presents the question whether a statute that was repealed in 1922 was unconstitutional so far as it affected the citizenship of the petitioner. The facts are undisputed. Petitioner’s mother was born in this country in 1901. In 1916 she married a Portuguese citizen and subsequently moved, apparently permanently, to Portugal. Petitioner was born in Portugal in 1931. Her father was a Portuguese citizen, but was not her mother’s husband. Her mother was divorced in 1932. Petitioner first came to this country in 1961. By Act of March 2, 1907, ch. 2534, § 3, 34 Stat. 1228, petitioner’s mother by marrying a foreign national, lost her United States citizenship and acquired that of her husband. This law was repealed by Act of September 22, 1922, ch. 411, § 7, 42 Stat. 1022, but not retroactively. If born abroad to two foreign nationals petitioner obviously was not a United States citizen merely because her mother had once been one. Indeed, it is conceded that in 1931 petitioner would not have been a United States citizen even if her mother had retained her citizenship. Petitioner’s claim, so far as we could find it to have any merit, is based upon the Nationality Act of 1940, ch. 876, § 205, 54 Stat. 1139, which stated that persons in petitioner’s status are “held to have acquired at birth * * [the] nationality status” of the mother. This statute was repealed by the Act of June 27, 1952, ch. 477, § 403, 66 Stat. 280, but not retrospectively. Id., section 405(c). Necessarily underlying the applicability of the 1940 Act to the petitioner is the contention that section 3 of the 1907 Act, in depriving her mother of citizenship on marriage, was unconstitutional. In Mackenzie v. Hare, 1915, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297, a unanimous court upheld its constitutionality. It is true that this unanimity has not characterized the decisions of the last decade upholding Perez v. Brownell, 1958, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603 (5-to-4; four opinions); Marks v. Esperdy, 1964, 377 U.S. 214, 84 S.Ct. 1224, 12 L.Ed.2d 292 (4-to-4), or holding unconstitutional, Trop v. Dulles, 1958, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (5-to-4; four opinions); Kennedy v. Mendoza-Martinez, 1963, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (5-to-4; four opinions); Schneider v. Rusk, 1964, 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218 (5-to-3), congressional expatriation legislation. No majority has questioned the authority of Mackenzie, however, and, indeed, it has been relied upon in several recent decisions. Perez v. Brownell, supra; Savorgnan v. United States, 1950, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287; see also Kennedy v. Mendoza-Martinez, supra, 372 U.S. at 187, 83 S.Ct. 554; cf. Perez v. Brownell, supra, 356 U.S. at 69-73, 78 S.Ct. 568 (Warren, C. J., dissenting). Petitioner relies principally on Schneider v. Rusk, supra, for the proposition that Mackenzie is no longer law. The statute considered in Schneider was directed solely to naturalized citizens, and certainly basic to the decision was the court’s condemnation of this discrimination. It is true that the dissenting opinion expressed the view that the reasoning of the court extended a fortiori to the 1907 Act upheld in Mackenzie. The opinion of the court did not mention the earlier case, however. It is clear that the decision itself in Schneider did not overrule Mackenzie. It is likewise apparent from the cases cited above that the limits of congressional authority to deprive citizens of their nationality have yet to be defined. We do not feel we should attempt to be the catalyst when to do so would involve express departure from a case which has never, in a majority opinion of the court, been questioned. Petitioner’s other points do not warrant discussion. Affirmed. . “Sec. 3. That any American woman who marries a foreigner shall take the nationality of her husband. At the termination of tile marital relation she may resume her American citizenship, if abroad, by registering as an American citizen within one year with a consul of the United States, or by returning to reside in the United States, or, if residing in the United States at the termination of the marital relation, by continuing to reside therein.” . This enactment is unusual in that it does not make residence in the United States before the foreign-born minor reaches a certain age a condition of citizenship. Compare prior act, Act of May 24, 1934, § 5, 48 Stat. 797, and the 1952 Act, 8 U.S.C. § 1401(b). Question: What is the specific issue in the case within the general category of "civil rights - other civil rights"? A. alien petitions - (includes disputes over attempts at deportation) B. indian rights and law C. juveniles D. poverty law, rights of indigents (civil) E. rights of handicapped (includes employment) F. age discrimination (includes employment) G. discrimination based on religion or nationality H. discrimination based on sexual preference federal government (other than categories above) I. other 14th amendment and civil rights act cases J. 290 challenge to hiring, firing, promotion decision of federal government (other than categories above) K. other civil rights 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. Antonio AMBROSINO, Plaintiff-Appellant, v. TRANSOCEANIC STEAMSHIP CO., LTD., Defendant-Appellee, v. Giacomo CIRCOLONE and Cross Caruso, Third-Party Defendants-Appellees. Louis CIGLIANO, Plaintiff-Appellant, v. EMPRESSA LINEAS MARITIMAS ARGENTINAS, S. A., Defendant-Appellee. Nos. 3, 811, Dockets 80-7554, 81-7808. United States Court of Appeals, Second Circuit. Argued March 1, 1982. Decided March 19, 1982. Martin Lassoff, New York City (Zimmerman & Zimmerman, Thomas J. Doyle, New York City, of counsel), for plaintiff-appellant, Antonio Ambrosino. Joseph Arthur Cohen, New York City (Alexander, Ash, Schwartz & Cohen, P. C., Carl Ian Schwartz, New York City, of counsel), for defendant-appellee, Transoceanic Steamship Co., Ltd. Martin Lassoff, New York City (Zimmerman & Zimmerman, Howard Fishkin, New York City, of counsel), for plaintiff-appellant, Louis Cigliano. Michael D. Martocci, New York City, for defendant-appellee, Empressa Lineas Marítimas Argentinas, S. A. Before FEINBERG, Chief Judge, and KAUFMAN and MANSFIELD, Circuit J udges. PER CURIAM: These two appeals are by longshoremen injured aboard ship during the course of their employment; they seek damages from the shipowners under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., for their personal injuries. The sole issue presented to us is whether the September 9, 1977 amendments to the Code of Federal Regulations, 20 C.F.R. §§ 702.312 and .315, mandate a result on these cases different from the one we reached in Rodriguez v. Compass Shipping Co. Ltd., 617 F.2d 955 (2nd Cir. 1980), aff’d, 451 U.S. 596, 101 S.Ct. 1945, 68 L.Ed. 2d 472 (1981). We find that our analysis in Rodriguez is dispositive of the two appeals now before us, and we affirm the judgments of the district courts. The undisputed facts are that each plaintiff accepted from his employer, the stevedore, compensation for his permanent disability following an informal conference convened by a United States Department of Labor claims examiner in the Office of Workers’ Compensation Programs (OWCP). In each case, the Department issued a Memorandum of Informal Conference, but no formal compensation order was entered and no party requested such an order. Both plaintiffs brought suit in district court more than six months after they accepted payment from their employer. In the Ambrosino case, the complaint was dismissed after defendant’s answer and oral motion to dismiss; in the Cigliano case, defendant’s motion for summary judgment was granted. In both cases, the district court relied on our decision in Rodriguez, supra, and disposed of the claim on the same ground: The longshoreman’s failure to bring suit within six months after acceptance of a compensation award resulted in an assignment of his cause of action to his employer, who thereafter had the exclusive right to pursue the third-party claim against the shipowner, 33 U.S.C. § 933(b). Plaintiffs argue that Rodriguez is not dispositive because the regulations at the time Rodriguez was decided were later changed in two respects. First, plaintiff points out that formerly any OWCP employee empowered to convene an informal conference could issue a compensation order and that therefore a settlement agreement signed by an OWCP claims examiner could properly be construed as an “award in a compensation order” within the meaning of § 33(b), as Rodriguez held. Plaintiffs argue that in contrast 20 C.F.R. § 702.312, which is quoted in the margin and is applicable to the two cases before us, now provides that “a compensation order following an agreement shall be issued only by a person so designated by the Director to perform such duty.” Plaintiffs contend that the claims examiners in these two cases were not so designated and that therefore we cannot construe the Memorandum of Informal Conference as having the effect of an “award in a compensation order.” Second, plaintiffs argue that under the amended regulation 20 C.F.R. § 702.-315, also reproduced in the margin, if an employer wishes an assignment of the cause of action it must request that “a formal compensation order” be issued. No such request was made here. Although the effect of the amendments to the regulations was specifically left open in Rodriguez, 617 F.2d at 959 n.l and 960 n.2, and also was not reached by the Supreme Court in affirming our decision in that case, 451 U.S. 596, 598-99 n.3,101 S.Ct. 1945, 1948 n.3, 68 L.Ed.2d 472, we believe that plaintiffs’ arguments are not persuasive. We find nothing in the 1977 amendments that would change the result we reached in Rodriguez. The intent of the Department of Labor in amending the regulations was clearly stated: The amendments will enable the Department of Labor to process in a more efficient and timely manner the increasing number of claims filed each year. 42 Fed.Reg. 45300, September 9, 1977. Additional language used by the agency in discussing comments received on the proposed amendments reflected a primary concern to avoid “unnecessary delays in the processing of claims.” Id. Plaintiffs provide no basis, and we can find none, that would lead us to conclude that the agency intended in any way to affect the substantive rights of the parties, or to inject additional technicalities into the settlement process. To the contrary, the Department encourages resolution through “informal procedures” in the “vast majority of cases.” 20 C.F.R. § 702.301. The amendments recognize the importance of an official informal conference in which an agreement approved by the Department of Labor has the same final and binding effect as a formal compensation order issued after a contested proceeding. Thus, 20 C.F.R. § 702.315, see note 5 supra, provides: (Emphasis supplied.) See also Verderame v. Torm Lines, 670 F.2d 5, 7 (2nd Cir. 1982). [W]hen the employer or carrier has agreed to pay, ... such action shall be commenced immediately upon becoming aware of the agreement, and without awaiting receipt of the memorandum or the formal compensation order. Accordingly, we find that under the revised regulations an agreement approved in a Memorandum of Informal Conference by the claims examiner after an official informal conference constitutes an “award in a compensation order” under § 933(b). The judgments of the district courts are affirmed. . Ambrosino was injured on September 14, 1975; a Memorandum of Informal Conference was filed and payment accepted on January 16, 1978. His complaint was filed in the district court on August 16, 1978. Cigliano was injured on June 21, 1979; a Memorandum of Informal Conference was filed on May 14, 1980 and payment was accepted on JAay 20, 1980. His complaint was filed in the district court on January 10, 1981. . 33 U.S.C. § 933(b) provides: Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner or Board shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award. . 20 C.F.R. § 702.312 provides in relevant part; Informal conferences shall be called by the deputy commissioner or his designee assigned or reassigned the case and held before that same person, unless such person is absent or unavailable. When so assigned, the designee shall perform the duties set forth below assigned to the deputy commissioner, except that a compensation order following an agreement shall be issued only by a person so designated by the Director to perform such duty. . Acceptance of the compensation award in both cases was subsequent to the 1977 amendments, which were effective October 11, 1977, 42 Fed.Reg. 45300, September 9,1977. . 20 C.F.R. § 702.315(a) provides in relevant part: Following an informal conference at which agreement is reached on all issues, the deputy commissioner shall (within 10 days after conclusion of the conference), embody the agreement in a memorandum or within 30 days issue a formal compensation order, to be filed and mailed.... If either party requests that a formal compensation order be issued the deputy commissioner shall, within 30 days of such request, prepare, file, and serve such order.... . Neither plaintiff contends that he had no notice of the consequences of accepting a compensation award or that he was unaware of his rights. . Signature by the parties on an agreement is not necessary in these two appeals in light of the claims examiners’ approval, following an official informal conference, of the agreement. 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_respond1_7_2

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 respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). STEELE v. HARRISON et al. Court of Appeals of District of Columbia. Submitted April 3, 1929. Decided May 6, 1929. Petition for Rehearing Denied May 25, 1929. No. 4746. Walter C. Balderston and Leonard J. Mather, both of Washington, D. C., for appellant. R. B. Dickey, of Washington, D. C., for appellees. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. MARTIN, Chief Justice. The appellant as plaintiff in the lower court filed a bill of complaint against the appellees, praying that a certain deed of conveyance theretofore executed by her be set aside upon the ground of fraud and also upon the ground that it was obnoxious to the proviso of section 1155, D. C. Code (then iu force), providing that no married woman shall have power to make any contract as surety or guarantor. The lower court heard the evidence and dismissed appellant’s bill. This appeal is now prosecuted upon a record containing the pleadings and the substance of the evidence heard by the trial court. We have carefully considered both pleadings and evidence, and we are convinced that the controlling facts in the case are in substance as follows: On May 15, 1926, the appellant, Elsie A. Steele, was, and still is, a married woman, the wife of Lewis P. Steele, and was the owner as tenant in common with Blanche A. Davis of certain real estate situate in the District of Columbia, subject to certain trust incumbrances which are not in question in this case. At that time appellant’s husband Lewis P. Steele, and William E. Davis, husband of appellant’s cotenant Blanche A. Davis, were partners engaged in the real estate business in the District of Columbia, and were in need of funds with which to meet their obligations. They accordingly formulated a plan of having their wives place a trust deed upon the aforesaid property wherewith to secure funds for the use of the partnership. Pursuant to this plan appellant and her cotenant, acting under the direction of their husbands, on May 15, 1926, executed and delivered to Francis L. Davis, brother of said William E. Davis, a deed of conveyance in fee simple for the real estate aforesaid, without any consideration whatever- moving to the grantors. On the same day said Francis L. Davis executed a deed of trust upon the property to> appellees Raymond B. Dickey and Sidney B. Harrison, to secure one H. L. Timbelake in the sum of $7,355. On May 25, 1936, however, this trust was released of record, and on the same day a trust deed was executed to the same trustees to secure the firm of Davis & Steele, in the same sum, to wit, $7,355> and this obligation was indorsed by Davis & Steele to Sue K. Harrison. On the same day, to wit, May 25, 1926, Francis L. Davis reconveyed the property to appellant and her eotenant subject to the aforesaid trust in favor of Steele and Davis in the sum of $7,355. The appellant’s bill of complaint attacks the deed of conveyance executed by her and. her cotenant to Francis L. Davis and prays that it he set aside on the ground that appellant was induced to sign the same by the fraudulent representations of certain of the appellees. This charge, we think, is not sustained by the evidence. Appellant also attacks the deed of trust placed by Francis L. Davis upon the property to secure Steele and Davis in the sum of $7,355, upon the ground that the trust deed if sustained would subject her property as security for the indebtedness of Steele and Davis, thus obligating her as an accommodation surety for them in violation of the proviso of section 1155, D. C. Code (since repealed [see 44 Stat. 676]) which provided that no married woman shall have power to make any contract as surety or guarantor, or as accommodation drawer, acceptor, maker, or indorser. We think the latter contention of appellant should he sustained. The circumstances surrounding the transaction in question give unmistakable proof of the fact that Francis L. Davis, as grantee in the deed of conveyance, was acting merely as the agent and trustee of appellant and her cotenant in order to place a trust upon their property to serve as security for the debts of their husbands. This was evidently done in order to escape the express provisions of the statute prohibiting such suretyship. Equity, however, looks through the form of the transaction to its substance, and in such case as this the.law follows the equitable rule. It results accordingly that the trust given by Francis L. Davis is subject to the same infirmities as if given directly by appellant, and is therefore void. In Waters v. Pearson, 39 App. D. C. 10, 16, Chief Justice Shepard spoke for this court as follows: “1. Section 1155 of the Code (31 Stat. at L. 1374, chap. 854) confers general power upon married women to engage in business, to contract, to sue separately, etc., as fully and freely as if unmarried, but concludes with this proviso: ‘That no married woman shall have power to make any contract as surety or guarantor, or as accommodation drawer, acceptor, maker, or indorser.’ By this proviso married women were prohibited from binding themselves as surety for others. But the limitation would be of little or no benefit if it could be evaded by the mere form of the contract entered into. If the mere form of the contract, making the married woman appear as a principal* instead of a surety, would serve to prevent judicial investigation of the real nature of her obligation, the provision of the statute would become a dead letter. The statute declares a rule of public policy and its object is to be executed by courts of law as well as equity. Any one may defend an action on a contract by proof that it is in violation of a statute. E. Bement & Sons v. National Harrow Co., 186 U. S. 76-88, 22 S. Ct. 747, 46 L. Ed. 1058-1068. See Fisk Rubber Co. v. Muller, 42 App. D. C. 49; Schwartz v. Sacks, 55 App. D. C. 87, 2 F.(2d) 188; Howard v. Quinn, 55 Wash. Law Rep. 527, affirmed Bradbury v. Howard, 58 App. D. C. 383, 31 F.(2d) 222. Tbe decree of the lower court is reversed with costs, and this cause is remanded for such further proceedings as are not inconsistent herewith. Reversed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:

songer_casetyp1_7-2

B

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". Augustus CHAVIS, Appellant, v. FINNLINES LTD., O/Y, Appellee. No. 77-1126. United States Court of Appeals, Fourth Circuit. Argued March 6, 1978. Decided May 22, 1978. C. Arthur Rutter, Jr., Norfolk, Va. (John H. Klein, Breit, Rutter & Montagna, Norfolk, Va., on brief), for appellant. John B. King, Jr., Norfolk, Va. (Charles F. Tucker, Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for appellee. Before HAYNSWORTH, Chief Judge, RUSSELL, Circuit Judge, and HOFFMAN, Senior District Judge. Senior United States District Judge for the Eastern District of Virginia, sitting by designation. WALTER E. HOFFMAN, Senior District Judge. Appellant, a longshoreman, brought suit against appellee, a shipowner, under the diversity statute, 28 U.S.C., section 1332. More specifically, plaintiff sought damages for injuries he received on February 17, 1975, during the course of his employment in loading cargo aboard the vessel FINN-SAILOR at Newport News, Virginia. He alleged negligence on the part of the shipowner under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, as amended in 1972, 33 U.S.C., section 901, et seq. (hereinafter referred to as the Act). On December 2, 1976, the case was tried before the Honorable John A. MacKenzie and a jury. The jury returned a verdict in favor of defendant-appellee Finn-lines Ltd., O/Y (hereinafter referred to as the shipowner), and the plaintiff appealed. The only issues involve the correctness of the jury instructions. We affirm. On February 17, 1975, the vessel FINN-SAILOR was being loaded at Newport News. Tidewater Stevedoring Corporation (hereinafter referred to as Tidewater) had been engaged by the shipowner to load the cargo aboard the vessel. The appellant, an employee of Tidewater, was a member of a longshore gang which was sent to the number six hatch, lower hold, of the FINNSAILOR to load certain cargo. The men in the gang were working under the supervision of the hatch boss, Ralph Sessoms. Appellant and his fellow gang members had been assigned by the stevedore foreman, also an employee of Tidewater, to work in the number six hatch, and plaintiff was advised by Sessoms that a cargo of logs was to be loaded into the lower hold. The evidence was that the logs were covered with a red clay mud, which created a smooth, slippery surface. The longshore-' men commenced loading, and while there was testimony to the effect that the logs were wet, the longshoremen loaded the logs in the usual manner and apparently had no particular difficulty in handling the logs. (Tr. 24) It rained throughout the day, and the logs were exposed to such weather due to the fact that the hatch was left open. (Tr. 10) The loading of the logs was completed in the latter part of the afternoon of February 17. Thereafter, the longshoremen began to load bales of herbs. The bales were to be stowed on top of the logs. The men working in the hold, including the appellant, were told that the bales were coming in by the gangwayman, also a Tidewater employee. (Tr. 25) The header in the hatch, Isaiah Battle, made the decision to bring the bales of herbs into the hatch, and Battle testified that the gangwayman could not signal the winchman to bring in the drafts containing the bales until Battle told him to do so. (Tr. 26) The evidence as to what transpired at this point was sharply conflicting. There was testimony from the appellant and his fellow longshoreman, Isaiah Battle, to the effect that one of the vessel’s mates was in the tween deck of the number six hatch. Battle testified that he asked the mate for some plyboard to put on top of the logs. Battle further testified that this mate who, according to Battle, was wearing a uniform and cap, told him there was no plyboard available on the ship, but to load the bales directly on top of the logs. (Tr. 15-16; 29-30) Appellant’s witnesses testified it was the custom and practice for Finnlines’ vessels, being loaded in Newport News, to supply any plyboard that was necessary for the loading operations. The vessel’s chief officer testified that the vessel’s mates do not wear uniforms and, in addition, that the vessel never stations a mate in the hatch while logs and bales of herbs are being loaded. (Tr. 87-88) Upon reviewing the vessel’s log book, the chief officer noted that heavy lift cargo was being loaded in the number two hatch, and that under normal procedure all of the vessel’s mates would be in that hatch watching over the loading of the heavy lift. (Tr. 87) He also testified that the ship always carries plyboard. However, there was no evidence that he received any request for such. While the appellant and several of his fellow longshoremen did testify that the vessel’s mate told them there was no available plyboard on the ship, it was uncontradicted that neither the appellant nor any of the other men advised the hatch boss, Sessoms, or the stevedore foreman that they required plyboard before loading the bales of herbs. (Tr. 32, 59) It was also uncontradicted that, under normal procedure, there is plyboard available on the pier. The appellant testified that he and his fellow longshoremen knew that this plyboard was available on shore for their use. Appellant acknowledged that in the past he and his fellow workers had obtained plyboard from shore for use on various vessels. (Tr. 63-64) However, neither appellant nor any of the other longshoremen attempted to obtain the plyboard from shore. While handling one of the bales, the appellant injured his back. However, the evidence surrounding the nature of the accident was conflicting. Appellant testified that, while he was maneuvering one of the bales, his feet slipped on the slippery logs and he fell, injuring his back. However, on the day of the accident, appellant reported to the timekeeper for Tidewater, James Davis, who prepared an accident report based upon what the appellant told him. Nowhere in the report is there any indication that a fall on wet logs caused the appellant’s injury. (Tr. 100-101; Defendant’s exhibit No. 2) Furthermore, on February 18, 1975, the day after the accident, the appellant completed and signed a workmen’s compensation form in which he described his accident as follows: We were loading bales of herbs weighing approximately 200 pounds on top of some logs we had already loaded. One of the bales fell down between some logs and had to be moved because it was in the way of the rest of them to come. I proceeded to move it when I felt something give in my lower back. (Tr. 69-70) No mention was made of slippery conditions or the alleged fact that he had slipped on the logs and fallen, thus injuring his back. I Duty of Shipowner to Provide a Reasonably Safe Place to Work Assuming arguendo that, under the stated facts, it was proper to submit the case to the jury, appellant contends that the trial court erred in its refusal to grant an instruction that the shipowner had a responsibility to provide a reasonably safe place to work. Such omission, it is argued, resulted in the jury’s failing to receive a proper statement of the law. Our consideration of this issue, as well as of the balance of the issues raised, must be guided by the principle that in considering errors in instructions, this court must look to the entire charge, and if the instructions, taken as a whole, fairly and adequately state the pertinent legal principles involved, then affirmance of the court below is required. Nitto Shosen K.K. v. Johnson, 350 F.2d 399 (9 Cir. 1965); Garrett v. Campbell, 360 F.2d 382 (5 Cir. 1966). In order to determine whether the given charge was correct, it is necessary to evaluate the complexion of the Act as it exists in light of the 1972 amendments. In particular, section 905(b) of the Act, as amended, must be taken into consideration. The subsection provides: (b) In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel, except remedies available under this chapter. In Anuszewski v. Dynamic Mariners Corp., 540 F.2d 757 (4 Cir. 1976), cert. denied, 429 U.S. 1098, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977), we held that, subsequent to the 1972 Amendments to the Act, the shipowner has no nondelegable duty to provide a longshoreman working aboard a vessel with a safe place to work. We stated: The legislative history clearly supports the conclusion of the district court that the 1972 Amendments eliminated the absolute and non-delegable duty of a vessel to provide longshoremen a safe place to work. 540 F.2d at 758. We quoted with approval excerpts from the legislative history in which Congress clearly evidenced its intent to eliminate the doctrine of unseaworthiness and to place a longshoreman injured on board a vessel in the same position he would be if injured in nonmaritime employment ashore. Appellant cites the House Committee Report for the proposition that Congress provided for actions against shipowners because it recognized that it was important for vessel owners to do what they could to keep their vessels safe for the longshoremen to work aboard. The Committee Report reveals: Permitting actions against the vessel based on negligence will meet the objective of encouraging safety because the vessel will still be required to exercise the same care as a land-based person in providing a safe place to work. Thus, nothing in this bill is intended to derogate from the vessel’s responsibility to take appropriate corrective action when it knows or should have known about a dangerous condition. Id. at 4704. The above view, appellant points out, was approved in Marant v. Farrell Lines, Inc., 1976 A.M.C. 504 (E.D.Pa.1976), where the trial court charged the jury that the stevedore and shipowner had concurrent responsibility for longshoring safety. The jury, by special verdict, found the stevedore and shipowner equally at fault in causing the injury. However, the Third Circuit Court of Appeals reversed. In Marant v. Farrell Lines, Inc., 550 F.2d 142 (3 Cir. 1977), the court held that the portion of the jury charge which informed the jury that “the responsibility for the safety of the longshoreman lies concurrently or jointly with the longshoreman's employer and with the shipowner” was erroneous. Stated the court: “A recent decision of this court, not available to the district court at the trial of this ease, substantiates Farrell’s position. Accordingly, on the basis of Brown v. Rederi, 545 F.2d 854 (3d Cir. 1976), we will order a new trial.” In Brown, the court stated that “express language in the statute and the legislative reports accompanying the 1972 Amendments amply demonstrate that for reasons of policy the major responsibility for the proper and safe conduct of the work was to be borne by the stevedore.” 545 F.2d at 860. In the Marant opinion, the Third Circuit reiterated its prior holding in Brown that the primary responsibility for longshoremen’s safety was on the stevedore and stated: This was an important aspect of the legislative plan, intended to focus responsibility for longshoremen’s safety on those best able to improve it, the stevedores. To say that responsibility is concurrent or joint is plainly inconsistent with the intention of the Act to place primary responsibility on the stevedore. 550 F.2d at 144. Although the duty of providing longshoremen a safe place to work is the primary responsibility of the stevedore, it does not appear that, in all cases, the obligation is exclusively his. Confusion exists chiefly in regard to the extent of the remaining duty on the shipowner in providing a safe place to work. George, “The Content of the Negligence Action by Longshoremen Against Shipowners Under the 1972 Amendments to the Longshoremen and Harbor Workers Act,” 2 The Maritime Lawyer 15, 34 (1977). Appellant, in acknowledging that the Third Circuit Court of Appeals reversed the district court in Marant, nevertheless argues that since the appellate court also quoted from the House Committee Report statement which recognized the responsibility on the vessel to provide a safe place to work, the omission of the requested instruction was error. This argument is of no merit. While we recognize that such a responsibility of the shipowner could exist, on another set of facts, we are satisfied that under the facts of this case it would have been error to grant such an instruction. The district judge instructed the jury that: [t]he owner of the ship . . . owes to that longshoreman who comes aboard that ship the legal duty to exercise ordinary care, under the circumstances, to keep the premises in a condition reasonably safe for use by that longshoreman, in every reasonable pursuit of any purpose included within the invitation. It is well established in this circuit that any determination of negligence on the part of a shipowner under 33 U.S.C., section 905(b), must be based on negligence principles applicable to land-based third parties in nonmaritime pursuits. Bess v. Agromar Line, 518 F.2d 738 (4 Cir. 1975). Appellant’s argument that the above instruction was defective because the term “premises” was employed rather than “place of work” is most tenuous and of no merit. We are satisfied the jury was correctly instructed that a shipowner has a duty, under the 1972 Amendments to the Act, to exercise ordinary care as opposed to a nondelegable duty to provide persons working aboard with a safe place to work. II Section 343A of the Second Restatement of Torts (1965) The appellant argues that the trial judge incorrectly instructed the jury on the duty of care owed by the shipowner to the longshoreman by entirely omitting any reference to the final limiting clause of section 343A(1) of the Second Restatement of Torts (1965), which would have rendered the snip-owner liable if it was to be anticipated that harm would result to an invitee despite the obviousness of the dangerous condition. Section 343A(l) reads: Known or Obvious Dangers. (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness, (emphasis added) Appellant reasons that the failure to include the limiting clause in the instruction rendered the charge more favorable to the defendant than the actual principle of land-based law upon which the charge was supposedly based. Napoli v. Hellenic Lines, Ltd., 536 F.2d 505 (2 Cir. 1976), is heavily relied upon by the appellant. In Napoli, the plaintiff longshoreman was injured when he fell from some unsecured boards resting on top of a quantity of drums which were stowed on deck. Snow had become lodged between the boards and the drums. The Second Circuit Court of Appeals stated that, “We believe that where a shipowner has notice of an obviously dangerous condition, his duty of care to longshoremen exposed to such danger should be set forth in section 343A of the Restatement of Torts.” 536 F.2d at 509. That court reasoned that, “We do not think that instructions which flatly negate the duty to protect against obvious danger properly portray the present-day obligations owed by a landowner to one whom he invites upon his premises.” 536 F.2d at 508. Appellant concludes the Second Circuit accordingly reasoned in Napoli that when an invitee was not in a position to appreciate the risk or to avoid the danger even if aware of it, the court must consider whether the landowner, as the person best able to anticipate and prevent harm from the obvious dangers on premises under his control, should not be under some duty to take corrective action. This standard, argues appellant, as set out by the Restatement in section 343A and as applied by the Second Circuit, is reasonable and proper. It recognizes that the primary responsibility for avoiding obvious dangerous conditions is not on the landowner, just as the Act recognizes that the primary responsibility for a longshoreman’s safety is not on the vessel but on the stevedore; but the Restatement also recognizes that there are situations where despite the obviousness of the danger, the owner still can be liable, much as the Congress has provided that shipowners still can be liable to longshoremen for negligence. Thus, appellant argues, section 343A is a proper standard for shipowner negligence and the court should have instructed on the entire section. While we feel that Napoli, supra, contains a correct exposition of law, we nevertheless are constrained to limit its applicability to its facts. In Napoli, there was no question that the shipowner, which was acting as its own stevedore, allowed the defect to be created before the longshoremen began work. However, under the facts of the present case, it appears that the stevedore created the alleged defect. The evidence was that the logs were caked with reddish mud and were slippery. The loading took place on a rainy day. The hatch above the number six lower hold was. left open, exposing the logs to rain. The entire longshoring operation was under the control of Tidewater. Appellee argues, and we agree, that there was no slippery condition in the hold prior to the time Tidewater began its operations. Rather, the slippery condition was created by the stevedore. It must be noted that this court reviewed this very issue in a recent case, Riddle v. Exxon Transportation Company, 563 F.2d 1103 (4 Cir. 1977). The plaintiff in Riddle was a shipyard-employed welder injured in a fire and gas explosion on a vessel undergoing repair at the shipyard. It was contended that the shipowner was negligent in not insuring that the vessel was “gas-free” when the repair work commenced. A jury rendered a verdict for the defendant. There was evidence that the repair operations had passed into the complete control of the shipyard. The plaintiff appealed, alleging error, in part, with regard to the district court’s instructions dealing with the duty of a shipowner regarding open and obvious conditions on the premises. No instruction on section 343A was given. This court held that: [e]ven under the modern rule a vessel is not liable for “open and obvious” dangerous conditions, whether existing at time control of the vessel is relinquished, by the vessel or arising afterwards with the knowledge of the vessel, if the danger is such that the stevedore or shipyard would be expected to correct the condition in the course of discharging its responsibility for the safety of the longshoreman or shipyard worker. 563 F.2d at 1111-1112. Illustrations of the above principle include Anuszewski v. Dynamic Mariners Corp., 540 F.2d 757 (4 Cir. 1976), cert. denied, 429 U.S. 1098, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977), and Frasca v. Prudential-Grace Lines, Inc., 394 F.Supp. 1092, 1101 (D.Md.1975). As one commentator has noted: The consistent philosophy of these decisions is that in the ordinary situation shipowners are in no position to learn of unsafe conditions or methods arising during the stevedore’s operations; when shipowners do learn of such dangers, ordinarily the stevedore and his employees will have an equal or greater awareness, so that the danger can be said to be open and obvious; and that the safety of stevedoring and other such operations is the primary and usually the sole responsibility of the stevedore. Robertson, “Negligence Actions by Longshoremen Against Shipowners Under the 1972 Amendments to the Longshoremen’s and Harbor Workers’ Compensation Act,” 7 Jour, of Maritime Law and Commerce 447, 473. We feel, in sum, that the proper resolution of this issue was well stated in Riddle : But, whether the statement of the District Court in the challenged instruction was erroneous for not qualifying the vessel’s immunity for “open and obvious” dangers in line with the modem rule [i. e., § 343A] is irrelevant in this case and its use by the District Court would, if erroneous, be at most harmless error. This is so because plaintiff’s injuries resulted solely from the negligence of the [stevedore]- and its employees; and, irrespective of the language of § 343 and § 343A of the Second Restatement, a vessel is unquestionably exempt under both the letter and the intent of the 1972 Amendments from any liability for injuries resulting from the negligence of the [stevedore] and its employees. And this is so, irrespective of whether the condition resulting in plaintiff’s injuries was “open and obvious” or not. Such has recently been the clear holding in four well-reasoned decisions. Hurst v. Triad Shipping Co., 554 F.2d 1237 (3 Cir. 1977); Munoz v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837 (2 Cir. 1977); Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233 (5 Cir. 1977); and Teofilovich v. d’Amico Mediterranean/Pacific Line, 415 F.Supp. 732 (C.D.Cal.1976). 563 F.2d at 1112. See also Brown v. Mitsubishi Shintaku Ginko, 550 F.2d 331 (5 Cir. 1977). Ill Sections 413 and 416 of the Second Restatement of Torts (1966) Appellant argues that sections 413 and 416 of the Second Restatement of Torts (1966) should have been included in the court’s charge. No authority is offered by the appellant as support for this assertion. Rather, the appellant is satisfied in devoting one paragraph on his brief to this argument, noting that these sections recognize that although an independent contractor has a responsibility to use reasonable care and to prevent injuries, there are certain circumstances that arise which will result in a responsibility remaining upon the employer to see that certain risks are guarded against. However, section 416 has been held to controvert the express statutory purpose of section 905(b) of the Act, by imposing vicarious liability on the shipowner for the negligent conduct of the stevedore or the stevedore’s employees. Brown v. Ivarans A/S, 545 F.2d 854 (3 Cir. 1976). The decision of the Fifth Circuit Court of Appeals in Hess v. Upper Mississippi Towing Corp., 559 F.2d 1030 (5 Cir. 1977), is most relevant on this point. In Hess, the plaintiff worked for an independent contractor employed by the defendant to clean a gasoline barge. While the plaintiff was using water to flush gasoline out of the barge’s piping system, an explosion occurred causing the plaintiff to suffer severe burns. The district court directed a verdict in favor of the defendant and the plaintiff appealed. The Fifth Circuit Court of Appeals affirmed the district court, holding in part that the Second Restatement of Torts, sections 411, 413, 416, 423 and 427 (1965) were not applicable, and stated: These sections of the Restatement, however, cannot support the plaintiff’s action because he is an employee of the independent contractor, and the sections only impose liability with respect to third parties. 559 F.2d at 1033. The court also rejected plaintiff’s contention that strict liability concepts were applicable, holding that it was the intent of Congress to eliminate such concepts. 559 F.2d at 1035. We agree with the Fifth Circuit. IV Safety and Health Regulations The jury should have been allowed to evaluate the conduct of the shipowner in light of its customary practice and the relevant longshoring regulations, argues the appellant. Specifically, appellant asked the court to instruct the jury on 29 C.F.R., section 1918.91, of the Occupational Safety and Health Administration (OSHA) Regulations for Longshoring, which provides: (a) Weather deck walking and working areas shall be kept reasonably clear of lines, bridles, dunnage and all other loose tripping or stumbling hazards. (c) Slippery conditions shall be eliminated as they occur. . As authority for this proposition, appellant cites Provenza v. American Export Lines, 324 F.2d 660 (4 Cir. 1963), cert. denied, 376 U.S. 952, 84 S.Ct. 970, 11 L.Ed.2d 971 (1964). In Provenza, this court stated that a violation of the longshoring regulations by the stevedore, known to the shipowner, could render the shipowner liable to the injured longshoreman on a negligence theory. Thus, a violation of the applicable safety regulations could be a violation of the shipowner’s duty. In Venable v. A/S Det Forenede Dampskibsselskab, 399 F.2d 347 (4 Cir. 1968), this court held that a longshoreman is entitled to have the regulations placed before the jury with an instruction consistent with the holding in Provenza. However, Provenza and Venable are no longer good law. Both were decided before the 1972 Amendments to the Act. Provenza stands for no more than the fact that the vessel owner is liable only if the breach of the regulations by the stevedore creates an unseaworthy condition. Since the vessel owner, subsequent to the 1972 Amendments to the Act, is no longer liable to longshoremen for unseaworthy conditions, neither Provenza nor Venable is of assistance to the appellant. The appellant’s reliance on the Fifth Circuit’s decision in Arthur v. Flota Mercante Gran Centro Americana S.A., 487 F.2d 561 (5 Cir. 1973) is also misplaced, since the Arthur case arose prior to the effective date of the 1972 Amendments to the Act. In cases arising subsequent to the amendments, the Fifth Circuit has held that the regulations apply only to “employers.” Gay v. Ocean Transport and Trading, Ltd., 546 F.2d 1233 (5 Cir. 1977). This conclusion was based in part on the fact that 29 C.F.R. § 1918.2 makes clear that the regulation only applies to employers and not vessel owners. 546 F.2d at 1239, n. 9. More recently, in Brown v. Mitsubishi Shintaku Ginko, 550 F.2d 331 (5 Cir. 1977), the Fifth Circuit reiterated its prior holding in Gay v. Ocean Transport and Trading Ltd., supra, and reasoned that the Safety and Health Regulations for Longshoring do not impose any duty on shipowners since such regulations apply only to “employers.” It manifestly appears that the district court did not err in this area. V Contributory Negligence Appellant contends it was error for the district judge to instruct the jury concerning contributory negligence. Mason v. Mathiasen Tanker Industries, Inc., 298 F.2d 28 (4 Cir. 1962), is cited as authority. In that case, this court held that where there is no contributory negligence or the defendant has introduced no direct evidence to carry his burden of proving contributory negligence by a preponderance of the evidence, it is error for the judge to instruct concerning contributory negligence, for it allows the jury to speculate that in some way plaintiff’s own negligence may have caused him to fall. Appellant alleges that the record in the present case contains no direct evidence of anything that the appellant, Chavis, failed to do or did do improperly, except that he worked in a hold loading bales of herbs “on top of wet, muddy, slippery logs.” The law is clear, argues appellant, that mere knowledge of a defective condition and use of it, anyway, without a showing of an alternative method, is not contributory negligence. Smith v. United States (Whitehall Terminal Corporation), 336 F.2d 165 (4 Cir. 1964), is cited as authority. Smith involved a defective ladder. This court reasoned: Had an alternative, safe route been available to Smith, his deliberate choice of a course known to be unsafe could possibly have indicated contributory fault, but mere knowledge of the unseaworthy condition and use of the ladder in the absence of a showing that there was an alternative is not contributory negligence. 336 F.2d at 168. Appellant concludes that in view of the rather strict statutory requirement under 33 U.S.C., section 905(a), proscribing the defense of assumption of risk, where the plaintiff has continued to work though he knew of a dangerous condition, unless the defendant shows the existence of an alternate method, there may be no consideration of contributory negligence. At the outset, it must be noted that in considering whether evidence of the appellant’s contributory negligence was sufficient to present a jury question, the appellee is entitled to the benefit of all inferences which the evidence supports, even though contrary inferences might reasonably be drawn. Mays v. Pioneer Lumber Corp., 502 F.2d 106, 108 (4 Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1125, 43 L.Ed.2d 398 (1975); Fleming v. American Export Isbrandtsen Lines, Inc., 451 F.2d 1329 (2 Cir. 1971); McBride v. Loffland Bros. Co., 422 F.2d 363 (5 Cir. 1970). We are of the opinion that when the appellee is given the benefit of all inferences, especially in a situation as here where the jury was required to choose between sharply conflicting versions of how the accident occurred, the record reveals ample credible evidence from which the jury could have found contributory fault on the part of the appellant. Smith v. Whitehall Terminal Corp. clearly is distinguishable. In that case it was undisputed that the plaintiff fell and injured himself because of a defective ladder, and it was further undisputed that there was no alternative safe route available to him. In the present case, unlike as in Smith, there was credible evidence from which the jury could have concluded that there were safe alternatives available, and that appellant was contributorily negligent in the following respects: (1) in attempting to move a heavy bale (200 pounds) without requesting assistance from his fellow workers; (2) in not obtaining plyboard from shore where it was available (Tr. 63-64); (3) in not asking his foreman to obtain plyboard from shore for use as dunnage (Tr. 55, 59); and (4) in not keeping a proper lookout for his own safety while working on uneven, wet logs when he knew that the working surface was wet and uneven (Tr. 64). Moreover, as noted earlier in this opinion, there was credible evidence from which the jury could have believed that no mate was present in the number six hatch and that, therefore, the plaintiff and his fellow longshoremen never attempted to obtain dunnage from any source. The timekeeper for the stevedoring company testified that it is normal stevedoring practice to put dunnage between logs and other cargo regardless of whether the logs are. wet or dry. The failure of appellant and his fellow longshoremen to follow this normal stevedoring practice could have raised an inference of contributory negligence. (Tr. 110-111) This was especially true in view of the fact that the loading of the bales of herbs began late in the day. The jury could have concluded that the longshoremen did not obtain dunnage from the vessel or ashore because they were in a hurry to complete their work before quitting time. VI Duty to Supply Dunnage Appellant argues that the district court erred in refusing to instruct the jury that if it found the shipowner was negligent and that its agents gave improper orders to the longshoremen or stevedore, or failed to properly supply plyboard and that this negligence proximately caused the accident, then its verdict should be for the plaintiff. Because this instruction was refused, contends the appellant, the jury never was instructed that an improper order of the mate or a failure to properly supply ply-board by the vessel could be considered negligence on the part of the vessel owner. As authority, the appellant cites Bess v. Agromar Line, 518 F.2d 738 (4 Cir. 1975), and avers that this court there indicated that where there is a duty on the ship to supply dunnage, failure to do so can be negligence. Appellant adds that there was sufficient testimony in the record that the jury could have found that, in Newport News, Finnline’s vessels did have the duty to supply necessary plyboard for dunnage. We are of the opinion that appellant has misconstrued our holding in Bess v. Agromar Line. In that case, we rejected the argument that the shipowner had a duty, as a matter of law, to supply dunnage. 518 F.2d at 743. Moreover, there was testimony in the present case to the effect that it was the stevedore’s responsibility to decide whether dunnage was required, and it was the duty of the appellant and his fellow longshoremen to obtain dunnage from the vessel or from ashore if they felt it was required for their work. Thus, the appellant’s proffered instruction which required the jury to find for the Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:

songer_casetyp1_7-2

D

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". In re Wade Dillon BALDWIN and Judith Ann Baldwin, Bankrupts. Lizzie ZARATE, Plaintiff-Appellee, v. Wade Dillon BALDWIN, Defendant-Appellant. No. 77-1696. United States Court of Appeals, Tenth Circuit. Submitted March 13, 1978. Decided June 30, 1978. R. Thomas Dawe, Albuquerque, N.M., for defendant-appellant. Jennie Deden Behles, Albuquerque, N.M., for plaintiff-appellee. Before HILL, BARRETT and DOYLE, Circuit Judges. HILL, Circuit Judge. This action was brought by Lizzie Zarate, a creditor of bankrupt Wade Dillon Baldwin, for a determination of the discharge-ability of her claim against Baldwin. The bankruptcy judge held that Zarate’s claim was excepted from discharge by § 17(a)(2) of the Bankruptcy Act [11 U.S.C. § 35(a)(2)]. The district court affirmed. Baldwin seeks reversal of that determination. In June, 1972, judgment was entered in New Mexico district court in an action by Zarate against Baldwin for negligent medical treatment. Zarate v. Baldwin, No. 11— 71-01121 (Bernalillo Co., N.M., Dist. Ct., June 2, 1972). The judgment specifically incorporated the terms of an agreement settling Zarate’s claim. The judgment recited that it was entered upon a claim of “simple negligence.” It provided that Za-rate should recover $60,000 from Baldwin, payable according to a stated schedule, with interest only in case of delinquency. The schedule of payments required Baldwin to pay $175 each month from July, 1972, through December, 1973; $500 each month from January, 1974, through May, 1975; and $800 each month thereafter until the full amount was paid. The judgment further provided that: “[T]he debt herein stated shall not be provable or dischargeable in bankruptcy.” Baldwin made payments according to the schedule through April, 1975, at which time $48,850 remained unpaid. Baldwin filed a petition for discharge in bankruptcy in June, 1975. Zarate commenced this action pursuant to § 17(c) of the Bankruptcy Act [11 U.S.C. § 35(c)]. She contended the debt should be excepted from discharge on two grounds: (1) Baldwin’s contractual waiver, incorporated into the state court judgment, precluded discharge; (2) Because the settlement agreement upon which judgment was entered was reached through Baldwin’s false representation that he would not seek discharge of the debt, her claim was excepted from discharge by § 17(a)(2). The testimony adduced at the hearing in bankruptcy court revealed that Baldwin had previously obtained a discharge in bankruptcy and he was not again eligible to seek discharge until May, 1975. Both Za-rate and Richard Ransom, her attorney in the state court proceeding, testified that at the time of the settlement negotiations she was concerned about the possibility Baldwin would seek discharge and that she agreed to the settlement only upon Baldwin’s assurance that he intended to pay in full and that the debt would not be affected by subsequent bankruptcies. The bankruptcy judge found that Baldwin misrepresented ■ his intent to pay the debt in full and not to seek its discharge in bankruptcy and that Zarate relied upon that misrepresentation in entering into the settlement agreement. He further concluded that Baldwin was bound by his waiver contained in the settlement agreement. He held the debt was not dischargeable. Baldwin contends the bankruptcy judge’s conclusions regarding his misrepresentation and Zarate’s reliance were erroneous. He further contends that the liability was not within the scope of § 17(a)(2) because Za-rate did not give up property on account of his misrepresentation. Finally, he argues that the contractual waiver of his right to seek discharge of the debt is unenforceable. The bankruptcy judge’s findings of fact, adopted by the district court, will not be disturbed unless they are clearly erroneous. Fed.R.Civ.P. 52(a); Bankruptcy R. 810. The evidence amply supports the finding that Baldwin misrepresented his intent. The clause waiving discharge, together with the promise to pay inherent in the agreement, is at the very least a representation that Baldwin intended to pay the debt in full, regardless of future bankruptcies. The circumstances which indicate Baldwin had no intention of fulfilling that promise when he made it include his insistence that the agreement state Zarate’s claim to be for “simple negligence”, thus paving the way for discharge of the debt; the progressive payment schedule ■ that permitted Baldwin to avoid enforceable liability for the greater share of the debt or any interest thereon until he was again eligible to seek discharge; and the fact that he ceased to make payments as soon as he was again eligible to petition for discharge. Testimony by Zarate and Ransom that she knew of his previous bankruptcy and insisted on the waiver clause to assure payment in full amply supports the finding that Zarate relied upon Baldwin’s, misrepresentation. Section 17(a)(2) excepts from discharge claims which “are liabilities for obtaining money or property by false pretenses or false representations.” A liability for negligent medical malpractice is a dis-chargeable debt. In re Byrne, 296 F. 98 (2d Cir. 1924). In its present posture, however, Zarate’s claim is not for Baldwin’s malpractice; it is for the property she forwent by entering into the settlement agreement in reliance on Baldwin’s false representations. Before agreeing to the settlement, Zarate had an unliquidated claim for damages against Baldwin. The significant aspect of the agreement is not that it caused the prior claim to be reduced to judgment, but that it caused Zarate to give up property of a value equal to the present unpaid balance of the judgment. By agreeing to settle, Zarate forwent her right to pursue her claim to judgment after trial. Her evidence could have shown that Baldwin’s conduct was willful, in which case his liability would not have been dischargeable. 11 U.S.C. § 35(a)(8). But most importantly, she forwent her right to collect the debt through the process of the court during the time when Baldwin was precluded from seeking discharge by reason of his prior bankruptcy. By keeping current with the relatively low initial payments, Baldwin avoided interest on the unpaid balance of the principal sum, and he avoided enforceable obligation for the remainder of the debt until his statutory six years [11 U.S.C. § 32(c)(5)] had run. The bankruptcy judge correctly held that Zarate’s claim was excepted from discharge by § 17(a)(2) of the Bankruptcy Act. We need not address the matter of enforceability of the contractual waiver of discharge. The significance of the provision is that it constitutes a representation that Baldwin intended to pay the debt in full, which we have held was false. AFFIRMED. . Claims for willful and malicious injuries are excepted from discharge by 11 U.S.C. § 35(a)(8). . Because Zarate’s claim was for property which she gave up by entering into the settlement agreement rather than for damages resulting from Baldwin’s negligent malpractice, our decision in In re Vickers, No. 76-2175 (10th Cir. Aug. 19, 1977), stating the rule that when a claim has been reduced to judgment the record and the judgment are ordinarily dispositive as to the nature of the claim, does not apply. The instant case may be distinguished from our recent opinion in In re Feisen, No. 77-2035 (10th Cir. Apr. 14,-1978). In that case, a guarantor of a debt challenged the discharge of his claim against the debtor for the amount he had been caused to pay on account of the debtor’s default. The original debt, the guarantor’s liability thereon, and the debtor’s liability to the guarantor had been reduced to judgment in state court pursuant to a settlement agreement. In the bankruptcy court the guarantor sought to raise the matter of the debtor’s fraud in the contract of guaranty. We held that he was properly precluded from doing so because there had been no showing of fraud in the state court proceeding. We specifically noted “[tjhere is nothing in this record which indicates that the stipulation reached in settling the litigation in the state court proceedings . was in any manner induced by fraud.” Slip op. at 5-6. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:

songer_district

F

What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Thomas S. JONES, Plaintiff-Appellant, Cross-Appellee, v. CENTRAL SOYA COMPANY, INC., Defendant-Appellee, Cross-Appellant. No. 83-7468. United States Court of Appeals, Eleventh Circuit. Dec. 10, 1984. Champ Lyons, Jr., Mobile, Ala., for plaintiff-appellant, cross-appellee. William C. Tidwell, III, Kathryn Anne Eckerlein, Mobile, Ala., for defendant-ap-pellee, cross-appellant. Before HILL and HENDERSON, Circuit Judges, and WISDOM , Senior Circuit Judge. Honorable John Minor Wisdom, U.S. Circuit Judge for the Fifth Circuit, sitting by designation. ALBERT J. HENDERSON, Circuit Judge: Thomas S. Jones and Central Soya Company, Inc. (“Central”) both challenge the reasonableness of the amount of attorney’s fees awarded to Jones by the United States District Court for the Southern District of Alabama in a successful action against Central alleging a violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (“ADEA”). The jury found Central’s conduct to be willful and awarded Jones double damages in the amount of $41,666.42. The district court later granted Jones an additional interim amount of $18,796.00 as well as reinstatement with full pension benefits. Pursuant to a provision in 29 U.S.C. § 216(b) authorizing reasonable attorney’s fees to the prevailing plaintiff in an ADEA action, the district court awarded Jones approximately $24,000.00 allocable to counsel fees. On appeal, Jones alleges that the amount was insufficient because of 1) the exceptional result obtained in the litigation, 2) the purported contingency fee arrangement between Jones and his counsel, and 3) the delay in payment of the attorney’s fees. Central cross appeals, contending that the district court improperly awarded Jones attorney’s fees for the time billed for the work of an unnecessary second trial lawyer. Awards of attorney’s fees in age discrimination actions are governed by 29 U.S.C. § 216(b) which provides: “[t]he court ... shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant ....” See 29 U.S.C. § 626(b) (rendering section 216(b) applicable to ADEA actions). A number of factors are relevant to the determination whether such an award is reasonable, the most familiar of which were discussed at length in Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir.1974). In this case, the district court based its award on a “lodestar” figure consisting of the product of the time invested by Jones’ counsel and an hourly rate. Record, vol. 1, pp. 381-84. In doing so, the district court addressed each of the factors listed in Johnson and concluded that no adjustment of the lodestar amount was necessary. See id. at 381-86. We may overturn this award only for “clear abuse of discretion.” Dowdell v. City of Apopka, 698 F.2d 1181, 1187 (11th Cir.1983). Jones first contends that the lodestar figure should have been increased because of the results obtained in the ADEA action. The district court reasoned that although counsel “achieved substantial relief for the plaintiff in this case, the court does not feel that counsel is entitled to an enhancement bonus on this factor.” Record, vol. 1, p. 385. The Supreme Court of the United States has instructed that “[bjecause acknowledgment of the ‘results obtained’ generally will be subsumed within other factors used to calculate a reasonable fee it normally should not provide an independent basis for increasing the fee award.” Blum v. Stenson, — U.S. —, —, 104 S.Ct. 1541, 1549, 79 L.Ed.2d 891, 903 (1984). However, “in some eases of exceptional success an enhanced award may be justified.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40, 52 (1983); see Blum, — U.S. at —, 104 S.Ct. at 1550, 79 L.Ed.2d at 903 (quoting Hensley). We are confronted here with the question whether the result in this ease constitutes “exceptional success.” Although the Supreme Court has not yet addressed in detail the-circumstances under which an award of attorney’s fees should be enhanced because of the result obtained, the Court noted in Blum that “where the experience and special skill of the attorney ... require the expenditure of fewer hours than counsel normally would be expected to spend on a particularly novel or complex issue” an increase may be warranted. Blum, — U.S. at —, 104 S.Ct. at 1549, 79 L.Ed.2d at 902. See also Ramos v. Lamm, 713 F.2d 546, 557 (10th Cir.1983) (“exceptional success” may be based upon extraordinary economies of time given the complexity of the task). Other courts have articulated additional factors that may justify an enhanced attorney’s fee award such as the development of new law furthering important congressional policies, see Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524, 1530-31 (11th Cir.1983); Johnson, 488 F.2d at 718; accord Ramos, 713 F.2d at 557, success achieved under unusually difficult circumstances, see White v. City of Richmond, 713 F.2d 458, 462 (9th Cir.1983) (near complete success achieved in face of highly unfavorable law); Ramos, 713 F.2d at 557 (“unusually difficult circumstances”), and the size of the award. See Yates v. Mobile County Personnel Board, 719 F.2d 1530, 1533 (11th Cir.1983); Wolf v. Frank, 555 F.2d 1213, 1218 (5th Cir.1977); Johnson, 488 F.2d at 718. None of these grounds is sufficiently present in this case to compel the conclusion that the district court abused its discretion. There is no indication that the success of Jones’ attorneys was achieved with any special economics of time or under unusually difficult circumstances. Moreover, the case did not establish significant new law furthering an important congressional goal, and the $60,462.42 recovered is not such a substantial amount as to require enhancement. In Ramos the Court of Appeals for the Tenth Circuit observed that “total victory” may constitute “exceptional success.” Ramos, 713 F.2d at 557. The main thrust of Jones’ argument appears to be based precisely on this point. According to Jones, because he prevailed on all his claims he is entitled to an enhanced award of attorney’s fees. We decline, however, to equate “total success” with “exceptional success.” Although the Supreme Court in Hensley observed that “the extent of a plaintiff’s success is a crucial factor in determining the proper amount of an award of attorney’s fees,” Hensley, 461 U.S. at 440, 103 S.Ct. at 1943, 76 L.Ed.2d at 54, the Court has never suggested that complete victory alone requires an enhanced award. Indeed, the Court specifically distinguished “excellent” results from “exceptional” results and instructed that only the latter could justify an increased grant of attorney’s fees. Id., 461 U.S. at 435, 103 S.Ct. at 1940, 76 L.Ed.2d at 52. Winning on all claims does not seem to us to be so unusual that it must be deemed “exceptional.” Furthermore, the Court in Hensley held that, given the vast range of success possible in a civil rights action, a decrease in the lodestar amount is not required simply because the plaintiff failed to win every contention raised in his lawsuit. Hensley, 461 U.S. at 440, 103 S.Ct. at 1943, 76 L.Ed.2d at 55. We believe the converse follows — just as losing on some claims does not necessarily mandate a decrease in the lodestar figure, neither does winning on all claims demand an increased amount. The central inquiry remains whether the expenditure of counsel’s time was reasonable in light of the overall success achieved. See id., 461 U.S. at 436, 103 S.Ct. at 1941, 76 L.Ed.2d at 52. A contrary boilerplate rule that total victory mandates a larger award of attorney’s fees would mean that lawyers fortunate enough to attract clients with highly meritorious claims would always be entitled to increased attorney’s fees. Statutory entitlements to attorney’s fees were not designed to provide windfalls to lawyers. See, e.g., S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S.CODE CONG. & AD.NEWS 5908, 5913 (Civil Rights Attorney’s Fees Awards Act). This is not to say that the totality of the success is never a relevant factor in determining whether a result is “exceptional.” We simply hold that the mere fact that a plaintiff recovered everything he sued for in the underlying litigation does not, by itself, mandate an enhanced award. In an appropriate case, the completeness of the success might be weighed along with the legal and factual hurdles, the economies of time and skill involved, the monetary award and the law created in evaluating whether a result is “exceptional.” Because the other influences are not present in this case, we conclude that the district court did not abuse its discretion in declining to enlarge the fee notwithstanding the fact that Jones recovered on all claims. Jones next asserts that the district court erred by not considering the contingency fee arrangement he allegedly had with his counsel. The Supreme Court recently deferred a ruling on whether an upward adjustment of the attorney’s fees is authorized because of the risk of nonrecovery. See Blum, — U.S. at —, 104 S.Ct. at 1550 n. 17, 79 L.Ed.2d at 903 n. 17. It is well established in this circuit, however, that a contingency fee arrangement may justify an increase in an award of attorney’s fees. See, e.g., Hall v. Board of School Commissioners, 707 F.2d 464 (11th Cir.1983) (per curiam); Marion v. Barrier, 694 F.2d 229, 231-32 (11th Cir. 1982) (per euriam); Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir.) (en banc), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981). To decide the issue in this case we must distinguish between two types of risks an attorney may assume in making a fee arrangement. First, an attorney may risk all entitlement to fees by entering into a conventional contingency agreement with his client. Second, although not making his entitlement to fees dependent upon the verdict or judgment, an attorney always assumes the risk that he will not be paid by his client because of indigency. If an attorney is aware, when finalizing his agreement, that his client will be unable to pay, and that the only recourse for collecting his compensation is a statute providing for fee-shifting, then for practical purposes, the attorney would have assumed the risk of nonrecovery if his client does not prevail. The district court recognized this distinction in reasoning that “[ajlthough adequate compensation was, as a practical matter, probably contingent upon a successful result, the case was not taken on a contingent fee basis . . . . [Cjounsel is not entitled to an enhancement bonus on this factor.” Record, vol. 1, at 385. This quotation is a finding of fact that there was no contingency fee agreement between Jones and his counsel. In addition, the court evidently reasoned that, although there was a “practical risk” of nonpayment because of Jones’ indigency, this risk did not justify a fee enhancement. We may overturn the district court’s finding of fact only if it is “clearly erroneous.” Fed.R.Civ.P. 52(a). The facts in the record reflect considerable doubt about the fee arrangement between Jones and his attorney. At an initial meeting between Jones and his attorney in February, 1981, the fee was not discussed. Record, vol. 2, p. 393-7. Later, an hourly bill was sent to Jones. When Jones expressed his inability to pay it, his attorney told him they would “cross that bridge later.” Id. at 393-9. Several months then passed during which there was no further mention of the fee. Id. at 393-9 to 393-10. Jones later authorized his lawyer to settle the case for up to $40,000.00 of which a third would be retained as attorney’s fees. Id. at 393-12. However, no settlement ever materialized. After Jones prevailed at the jury trial, he agreed that his counsel would “look exclusively to the Court for the fixing of a reasonable fee” without disturbing the jury award. Id. at 393-13. At no point was it apparent that Jones’ counsel agreed to forego compensation for his efforts in the event the action was unsuccessful. Accordingly, we are not left with the requisite “definite and firm conviction” that the district court made a mistake in finding there was no contingency fee arrangement between Jones and his attorney. Moreover, the district court was correct in reasoning that the “practical risk” assumed by Jones’ counsel is not a basis for enhancing a fee award. Jones argues that one purpose of fee-shifting statutes is to attract competent counsel and that compensating for the “practical risk” would encourage lawyers to take civil rights cases involving indigent clients. According to Jones, refusing to provide this compensation would have a “chilling effect” on the willingness of attorneys to take such cases. It is true that in passing statutes supporting the entitlement to attorney’s fees, Congress intended to encourage competent counsel to take on possibly undesirable cases by providing for adequate compensation for their successful efforts. See, e.g., S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S. CODE CONG. & AD.NEWS 5908, 5913 (Civil Rights Attorney’s Fees Awards Act). This court has recognized that enhancement on the basis of a conventional contingency arrangement furthers this congressional purpose. See, e.g., Yates, 719 F.2d at 1534. We do not believe, however, that Congress intended that such advocates be paid for the financial risks they assume to a greater degree than other lawyers. As we stated in Jones, compensation for risk “is neither less nor more appropriate in civil rights litigation than in personal injury cases.” Jones, 636 F.2d at 1382. In this case, counsel for Jones seek an amount compensating them for the risk of nonpayment by a client liable for fees, a risk that is assumed without special compensation by all attorneys in all cases. A lawyer may not preserve a right of recourse against his client for fees and still expect to be compensated as if he had sacrificed completely his right to payment in the event of an unsuccessful outcome. To justify a risk premium a lawyer must agree to hold his client unaccountable for his fees if he loses the case. Because the district court found that no such agreement existed, the court did not abuse its discretion in refusing to enhance the fee award on the basis of contingency. Jones’ last argument is that the district court abused its discretion by not awarding additional attorney’s fees to compensate for delay in payment. This court has recognized that if the hourly rate for attorney’s fees is based on historical rates, thus reflecting the reasonable attorney’s fee at the time the work was performed, an adjustment may be necessary to compensate for inflation and interest. See Johnson v. University College of the University of Alabama, 706 F.2d 1205, 1210-11 (11th Cir.), cert. denied, — U.S. —, 104 S.Ct. 489, 78 L.Ed.2d 684 (1983); Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184, 1193-94 (11th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984). The district court did not discuss delay, and did not state whether the hourly rate it used to compute Jones’ award was current or historical. The evidence the court could have considered in arriving at the applied rate of $85.00 per hour contains information about both current and historical rates. Under these circumstances we cannot determine whether the district court abused its discretion by failing to increase the award to account for delay. We decline, however, to remand this case for clarification or reconsideration because we hold that Jones waived the right to seek an enhancement of attorney’s fees on the basis of delay. He failed both at the district court hearing on attorney’s fees and in his “Application for Award of Attorney’s Fees,” Record, vol. 1, pp. 291-306, to raise the issue of enhancement for delay. In reaching our conclusion we are mindful of the general rule that the “burden rests on the party seeking an attorney’s fee award to file a fee application and proffer proof going to the Johnson guidelines before the trial court.” Carr v. Blazer Financial Services, Inc., 598 F.2d 1368, 1371 (5th Cir.1979). Because Jones did not advance any argument for delay until after the district court’s order granting attorney’s fees, we decline to consider it as a basis for overturning the award. See Gates v. Collier, 616 F.2d 1268, 1278 n. 16 (5th Cir.1980) (suggesting waiver of claim for interest on award of attorney’s fees when issue not raised until after the district court made the award), modified on rehearing, 636 F.2d 942 (5th Cir.1981) (per curiam). Finally, Central, as cross-appellant, urges that the district court abused its discretion by not reducing the award by the amount allocated for the allegedly duplica-tive work performed at trial by a second attorney for Jones. The district court considered the issue and concluded that it was not “unreasonable for the plaintiff to have been represented at trial by two experienced attorneys. The defendant was represented at the trial by house counsel and trial counsel, although house counsel did not participate actively in the litigation.” Record, vol. 1, p. 382. A reduction in a fee “is warranted only if the attorneys are unreasonably doing the same work. An award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation.” Johnson, 706 F.2d at 1208 (emphasis in original); see Ward v. Kelly, 515 F.2d 908, 912 n. 11 (5th Cir.1975); Johnson, 488 F.2d at 717. Except for the fact that both were present at trial, there is no evidence in the record suggesting that Jones’ attorneys were doing identical work. Also, there is no indication in the record, aside from the fact that only one lawyer actively participated in the trial for Central, that it was unreasonable for Jones to retain two trial attorneys. Indeed, the record reflects that the lack of opportunity for pretrial preparation by Jones’ attorney may have necessitated additional trial counsel. See Record, vol. 2, p. 393-5. At any rate, in the absence of any evidence to the contrary, we cannot conclude that the trial judge, who was in the best position to evaluate the reasonableness of the use of two trial at-in torneys by Jones, abused his discretion declining to reduce the fee. The judgment of the district court AFFIRMED. is . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as precedent all decisions of the former Fifth Circuit decided prior to October 1, 1981. The Johnson court cited the following considerations as being relevant to the determination of the reasonableness of the award: 1) the time and labor required; 2) the novelty and difficulty of the questions; 3) the skill requisite to perform the legal service properly; 4) the preclusion of other employment by the attorney due to the acceptance of the case; 5) the customary fee; 6) whether the fee is fixed or contingent; 7) time limitations imposed by the client or the circumstances; 8) the amount involved and the results obtained; 9) the experience, reputation and ability of the attorneys; 10) the "undesirability” of the case; 11) the nature and length of the professional relationship with the client; and 12) awards in similar cases. Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir.1974). Johnson dealt with 42 U.S.C. § 2000e-5(k), which permits attorney’s fees for the prevailing party in certain Title VII actions. Its reasoning, however, has been applied to awards of attorney’s fees under 29 U.S.C. § 216(b). See, e.g., Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184 (11th Cir.1983) (violation of Equal Pay Act, 29 U.S.C. § 206(d), to which section 216(b) also applies), cert. denied, -U.S.-, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984). The Johnson criteria were also approved by Congress when it passed the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988. See S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S.CODE CONG. & AD.NEWS 5908, 5913. In Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40, 50 n. 7 (1983), a case addressing the reasonableness of an award of attorney’s fees under section 1988, the Supreme Court stated that the "standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of [attorney’s] fees to a ‘prevailing party.’” Accordingly, our inquiry extends beyond just those cases dealing with section 216(b). . Neither the number of hours nor the hourly rate applied is at issue in this appeal. . Computing a "lodestar” figure first and then adjusting it in light of other considerations is a widely accepted practice. See, e.g., Blum v. Stenson, — U.S. —, —, 104 S.Ct. 1541, 1543-44, 79 L.Ed.2d 891, 895-96 (1984); Hensley v. Eckerhart, 461 U.S. 424, 433-435, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40, 50-51 (1983); Ursic v. Bethlehem Mines, 719 F.2d 670, 676-77 (3d Cir.1983); White v. City of Richmond, 713 F.2d 458, 460-61 (9th Cir.1983); Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir.1983); Copeland v. Marshall, 641 F.2d 880, 890-91 (D.C.Cir.1980) (en banc). . “Although the Court should consider the amount of damages, or back pay awarded, that consideration should not obviate court scrutiny of the decision’s effect on the law.” Johnson v. Georgia Highway Express, 488 F.2d 714, 718 (5th Cir.1974). The Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988, not only ”make[s] it possible for non-affluent litigants to obtain legal representation, but to reward attorneys whose service has benefited the public interest.” Dowdell v. City of Apopka, 698 F.2d 1181, 1191 (11th Cir.1983) (emphasis in original). The cost-shifting contemplated by section 1988 is "designed to induce and encourage litigation on the theory that litigants acting as ‘private attorneys general' may help to enforce important congressional policies . . . .” Id. at 1189 n. 12. . See also Elser v. I.A.M. National Pension Fund, 579 F.Supp. 1375, 1381 (C.D.Cal.1984) (No enhancement under 29 U.S.C. § 1132(g) when the "relief obtained by [the] plaintiffs was that due them---- In order to be considered an exceptional result, it would have to be one not thought likely to be achieved.”). . The fact that a class was benefited, rather than an individual, has been a consideration in the past in calculating an award of attorney’s fees. See, e.g., Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184, 1194 (11th Cir.1983) (not abuse of discretion for district court to determine that the case was less difficult because the plaintiff was an individual rather than a class), cert. denied, — U.S. —, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984); Johnson v. Georgia Highway Express, 488 F.2d 714, 718 (5th Cir.1974). This notion however, appears to have been laid to rest by the Supreme Court of the United States. See Blum v. Stenson, — U.S. —, —, 104 S.Ct. 1541, 1549 n. 16, 79 L.Ed.2d 891, 903 n. 16 (1984). . For example, the White court increased an award of attorney’s fees for exceptional success when the plaintiff obtained injunctive relief in spite of its restricted availability under Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The legal obstacles overcome in this case do not compare with those in White. . Jones contends that the recovery in the ADEA litigation was actually worth over $330,000.00 because of the present value of the pension benefits and reinstatement. We recognize that “fees awarded ... [should] not be reduced because the rights involved may be nonpecuniary in nature,” S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S.CODE CONG. & AD.NEWS, 5908, 5913. Nonetheless, even accepting this figure, we cannot say that the district court abused its discretion by declining to enhance the award of attorney's fees. . We express no opinion concerning the relative weight of these factors for determining "exceptional success” nor the degree to which any or all of them must be present to justify the enhancement of an attorney's fee award on the basis of the results obtained. In addition, we express no opinion about the extent, if any, to which these factors are necessarily indistinguishable from the existing Johnson criteria. We merely hold that, even if all these factors are valid considerations, the district court did not abuse its discretion in denying an enhanced attorney’s fee award on the basis of "exceptional success.” Our opinion does not necessarily foreclose the possibility that in future cases in this circuit an increase in an award of attorney’s fees may be justified on the basis of “exceptional success” even when all claims asserted are not successful. See White v. City of Richmond, 713 F.2d 458, 461-62 (9th Cir.1983) (enhancement upheld despite minor concessions by plaintiff during settlement negotiations). . Justice Brennan wrote separately in Blum, however, "to reaffirm ... that Congress has clearly indicated that the risk of not prevailing, and therefore the risk of not recovering any attorney’s fees, is a proper basis on which a district court may award an upward adjustment to an otherwise compensatory fee.” Blum v. Stenson, — U.S. — , —, 104 S.Ct. 1541, 1550, 79 L.Ed.2d 891, 904 (1984) (Brennan, J., concurring). . Counsel for the appellant admitted at this point that the fee situation was "vague.” Record, vol. 2, p. 393-12. . In addition, we note that in an effort to justify the employment of two trial attorneys, Jones' counsel stated that two lawyers were necessary in light of the fact that Jones could not afford pretrial deposition discovery. Record, vol. 2, p. 393-5. The district court may have taken this to mean that Jones' ability to pay was so significant an issue before trial that cost-cutting measures were necessary. Such concern over Jones’ ability to pay suggests that the parties expected, at least at that point, that Jones would ultimately be liable for his counsel's fees. This liability is inconsistent with a contingency fee arrangement. . Vindication of the policy of the law depends to a significant degree on the willingness of highly skilled attorneys, such as those now before the court, to accept employment in discrimination cases on a wholly contingent basis. They will hardly be willing to do so if their potential compensation is limited to the hourly rate to which they would be entitled in noncontingent employment. Busy and successful attorneys simply could not afford to accept contingent employment if those were the rules that were applied. The enforcement of our civil rights acts would then be entrusted largely to less capable and less successful lawyers who lack sufficient employment. Such an arrangement would ill serve policies of enormous national importance. Yates v. Mobile County Personnel Board, 719 F.2d 1530, 1534 (11th Cir.1983). . The relevant period of delay generally runs from the time payment for legal services rendered would normally be due to the time of the receipt of the payment. In this case, however, the relevant period may be somewhat shorter because the district court awarded interest from the date of its order granting attorney’s fees to Jones. Record, vol. 1, p. 387. . The district court’s order stated that "$85.00 per hour for time expended on the merits of the case is a reasonable fee for [Jones] in accordance with the customary hourly fee charged for this type of litigation.” Record, vol. 1, p. 384. . The district court stated that it based its hourly rate figure on 1) the affidavit of Champs Lyons, Jr., one of Jones’ attorneys, 2) the testimony at the hearing for the application of the award of attorney’s fees, and 3) the Defendant’s Response to Post-Judgment Interrogatories. Record, vol. 1, pp. 383-84. The affidavit was dated February 8, 1983, Record, vol. 1, p. 306, and stated that "when I handle litigated matters on a strictly hourly basis, my regular rate is $95.00 an hour . . . .” Id. at 298. The use of the present tense suggests that the rate was current. The hearing testimony revealed that an initial bill was sent to Jones in June, 1981, reflecting a rate of $80/hour. Record, vol. 2, p. 393-8. This would represent a historical rate, applicable two years before the district court’s August 2, 1983, order granting attorney’s fees. In addition, two witnesses were asked to state their opinion on the "customary range for hourly fees charged in Mobile in Federal court litigation.” Id. at 393-41 to 393-44. The answers, apparently indicating current fee ranges, were $60.00-100.00 per hour, and $75.00-100.00 per hour. Id. at 393-42, 393-44; see also id. at 393-38 ($75.00-$100.00 per hour). Finally, the Defendant’s Response to Post-Judgment Interrogatories replied to a question concerning “the then current hourly rate,” Record, vol. 1, p. 284, and a question asking for "the customary hourly rate,” id. at 286, by giving the same answer of $85.00 per hour. Id. at 351-52. These last answers suggest that the historical and current rates may be the same. . In an affidavit accompanying his request for 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_respond1_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 first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant. VAREKA INVESTMENTS, N.V., a Netherlands Antilles Corp., Plaintiff-Appellee, v. AMERICAN INVESTMENT PROPERTIES, INC., a Florida Corp., Defendant-Appellant. No. 82-5722. United States Court of Appeals, Eleventh Circuit. Feb. 9, 1984. Rehearing Denied March 21, 1984. Lawrence H. Rogovin, North Miami Beach, Fla., for defendant-appellant. Steel, Hector & Davis, Vance E. Salter, Miami, Fla., for plaintiff-appellee. Before RONEY, HATCHETT and ANDERSON, Circuit Judges. HATCHETT, Circuit Judge: In this diversity case, we review the district court’s award of damages to a lessor resulting from a commercial lease transaction and the termination of the lease. We affirm. FACTS Vareka Investments, N.V. (Vareka) was incorporated under the laws of the Netherlands Antilles on October 20, 1978, to serve as a passive investment vehicle. With the exception of a shareholder who is a citizen of Italy residing in Montreal, Canada, all of the shareholders of Vareka are citizens and residents of the Republic of Ecuador. Leonard E. Treister and Jerome J. Cohen were shareholders, officers, and directors of American Investment Properties, Inc. (AIP). In January, 1978, AIP purchased The Quarters Office Park. During 1978, a company half owned by Treister and Cohen, Greater American Management Corporation (GAMC), operated The Quarters Office Park (The Quarters). In January, 1979, Vareka purchased The Quarters from AIP. Simultaneously, AIP leased The Quarters back from Vareka under a fifteen-year net lease under which AIP was obligated to pay Vareka a minimum “net” return of Vare-ka’s cash investment. AIP was also obligated to pay all expenses and assume all duties to the subtenants and to operate The Quarters. Vareka had no liability whatsoever for the operation, maintenance, or expenses of The Quarters. Treister and Cohen, individually, guaranteed AIP’s performance under the lease for the first five years, with an aggregate liability of $100,-000. On January 15, 1979, Vareka filed an “Application by Foreign Corporation for Authorization to Transact Business in Florida” with the Florida Department of State. The State of Florida granted the application, and Vareka became qualified to transact business in Florida. The qualification listed as the “address of principal office” of Vareka, 1400 Southeast First National Bank Building, Miami, Florida. A Resident Agent Certificate was also filed with the Secretary of State of Florida. On the certificate, Vareka designated an attorney at a Miami, Florida, law firm as its resident agent. The law firm had represented Vareka in the negotiations and consummation of the transaction, and continues to represent Vareka in Florida. In August, 1979, AIP notified Vareka that AIP intended to terminate the lease. The present actions were commenced in September, 1979, when Vareka filed suit. In October, 1979, the district court authorized Vareka to re-enter the premises for the purposes of operation and management, pursuant to the lease agreement. Vareka hired Coldwell Banker Property Management Company (Coldwell Banker) to operate the property from October, 1979, through the date of the trial. PROCEDURAL HISTORY On September 4, 1979, soon after AIP advised Vareka of its intent to terminate, Vareka sued AIP under the lease. On September 14, 1979, Vareka sued Treister and Cohen based on the Guaranty. The trial court consolidated the cases. Vareka moved for partial summary judgment on liability. The district court withheld ruling on Vareka’s motion for summary judgment pending a determination of whether the court lacked subject matter jurisdiction. After holding an evidentiary hearing and considering memoranda of law on the issue of jurisdiction, the district court concluded that subject matter jurisdiction existed. Thereafter, the district court granted Vareka’s motion for summary judgment as to the liability of AIP, Treister, and Cohen. The district court conducted a bench trial and found that Vareka suffered $548,000 in damages due to AIP’s breach of the lease, and that Vareka was entitled to collect $100,000 of that amount from Treister and Cohen under the Guaranty. AIP, Treister, and Cohen (appellants) then filed a “Motion to Alter or Amend Judgment” and a “Notice of Appeal.” The district court denied the motion to alter or amend judgment. The appellants did not file a new notice of appeal. ISSUES On appeal, we must decide whether the district court correctly concluded that it had subject matter jurisdiction; whether the district court correctly granted summary judgment; whether Vareka’s cause of action for damages was premature; whether Vareka properly mitigated those damages; whether there was sufficient evidence to support the district court’s award of damages; and whether Federal Rule of Appellate Procedure 4(a)(4) requires dismissal of this appeal. A. Subject Matter Jurisdiction Appellant, AIP, contends that the district court’s finding that Vareka’s principal place of business was in Quito, Ecuador, • is clearly erroneous. After conducting an evidentiary hearing, the district court concluded that it had subject matter jurisdiction based on diversity. Under 28 U.S.C.A. § 1332(c), a foreign corporation is deemed to be a citizen of the state in which it has its principal place of business. Jerguson v. Blue Dot Investment, Inc., 659 F.2d 31, 35 (5th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982). One looks to the “total activity” of the corporation in order to determine its principal place of business. Village Fair Shopping Center v. Sam Broadhead Trust, 588 F.2d 431, 434 (5th Cir.1979). This analysis incorporates both the “place of activities” test (focus on production or sales activities), and the “nerve center” test (emphasis on the locus of the managerial and policymaking functions of the corporation). Toms v. Country Quality Meats, Inc., 610 F.2d 313, 315 (5th Cir.1980). The question of a corporation’s principal place of business is a question of fact. Village Fair at 433. Thus, we review the district court’s determination that Vareka’s principal place of business was Ecuador to determine whether it is clearly erroneous. The district court found that all of Vareka’s shareholders were citizens and residents of the Republic of Ecuador, with the exception of DiGiorgis, a citizen of Italy, residing in Montreal, Canada. Prior to institution of the present case, all corporate meetings were conducted, and all corporate decisions were made in Ecuador. The appellants were at all times relevant to this case residents and citizens of the state of Florida. The managing director of Vareka was a citizen and resident of Ecuador; the major investor in Vareka is an Ecuadorian corporation. Vareka was formed as a passive investment vehicle in order to invest funds in United States real estate. Jose Perez, the managing director of Vareka, received materials offering The Quarters for sale at his offices in Quito, Ecuador. In connection with the purchase of The Quarters, Vareka obtained loans from several Ecuadorian citizens. These loans were evidenced by promissory notes made, executed, and delivered in Quito, Ecuador. Under the long-term lease, AIP was obligated to pay all the expenses, assume all the duties to the subtenants, and operate The Quarters Office Park. Thus, Vareka was not involved in the day-to-day operation of this commercial property. At no time did any officer, director, employee, shareholder, or other representative of Vareka meet or communicate with any of the tenants at The Quarters. Likewise, no officer, director, employee, shareholder, or representative ever paid any utility bills, taxes, or service payments applicable to The Quarters, or take any other action which might be construed as operating or managing the property. Vareka had no corporate office in Miami, Florida. Although Vareka did not maintain a distinct corporate office in Quito, Ecuador, it maintained its books and records and held corporate meetings in Quito. Vareka’s books and records were maintained with the part-time assistance of Perez’s legal secretary and the accountant of another shareholder, in Quito. Otherwise, Vareka had no employees in Florida or elsewhere. Vareka directed AIP to make all lease payments to a Miami bank account. The sole signatories on the bank account were investors of Vareka. In August, 1979, when AIP notified Vareka that it intended to terminate the lease, AIP sent the notification to Vareka in Quito, Ecuador, via telex. The investors and shareholders of Vareka then met in Quito and responded to the advice of termination. AIP argues that the final negotiations and closing occurred in Miami, Florida. Vareka qualified to do business in Florida and appointed a resident agent in Miami, Florida. All payments were to be sent to a Miami address. Correspondence from Vareka to AIP emanated from the office of the Miami lawyer. Finally, Vareka maintained a bank account in Florida for the purpose of receiving and disbursing all payments relating to The Quarters. Based on the many factors cited by the district court, we conclude that the district court’s holding that Vareka’s principal place of business is in Ecuador, is not clearly erroneous. Since all appellants were citizens and residents of the state of Florida, the district court correctly concluded that it had subject matter jurisdiction. B. Summary Judgment as to Liability AIP argues that because Vareka resumed possession of The Quarters on AIP’s account, on an election of remedies theory, the cause of action for damages does not accrue until the end of the term of the lease. The relevant portion of the Lease provides that the landlord may, without further notice to the tenant, in the event of default, exercise any one or more of the remedies set forth in the Lease. Section 9.02(b) provides: Landlord may, without barring later election of any other remedy and without terminating this lease, at any time and from time to time (i) re-enter the premises with or without process of law, and manage and operate the same (ii) sublease any vacant portion of the Premises or any part or parts thereof, to any persons, and (iii) assume Tenant’s interest in any or all subleases, for the account of Tenant or otherwise, and receive and collect the rents therefrom. In the latter event Landlord shall apply such rents first to the payment of such expenses as Landlord may have paid, assumed or incurred in recovering possession of the Premises, including costs, expenses, attorney’s fees, and for placing the same in good order and condition or preparing or altering the same for subleasing, and all other expenses, commissions, and charges paid, assumed or incurred by Landlord in or in connection with subleasing the Premises, and then to the fulfillment of the covenants of Tenant. Any such subleasing as provided for herein may be for the remainder of the term of this lease or for a longer or shorter period. Landlord may execute any sublease made pursuant to the terms hereof either in Landlord’s own name or in the name of Tenant, or assume Tenant’s interest to and in any existing sublease of the Premises, as Landlord may see fit. No subtenant shall in any such event be under any obligation for the application by Landlord of any rent collected by Landlord from such subtenant to any and all sums due and owing under the provisions of this lease. In such event Tenant shall have no right or authority whatever to collect any rent whatever from any subtenant on the Premises. In any case, and whether or not the Premises or any part thereof be re-let Tenant, until the end of what would have been the term of this lease in the absence of such expiration and whether or not the Premises or any part thereof shall [have] been re-let shall be liable to Landlord for, and shall pay to Landlord, any amount equal to: (i) all Minimum Rent and Additional Rent which is otherwise payable under this lease, less (ii) the net proceeds, if any, of any re-letting effected for the account of Tenant pursuant to the provisions of this Section 9.02, after deducting all Landlord’s expenses in connection with such re-letting, including, without limitation, all repossession costs, brokerage commissions, legal expenses, attorneys’ fees, expenses of employees, alteration costs, and expenses of preparation for such re-letting. Tenant shall pay such amount to Landlord monthly on the days on which the Minimum Rent is payable under this lease, and Landlord shall be entitled to recover the same from Tenant on each such day. In its May 19, 1982, order, the district court correctly stated that under Florida law, a lessor has an election of three alternative courses of action when the lease is breached by the lessee. The lessor may treat the lease as terminated and retake possession for his own account, thus terminating any further liability on the part of the lessee; or the lessor may retake possession of the premises for the account of the lessee, holding the lessee liable for the difference between rental stipulated to be paid under the lease agreement and what, in good faith, the lessor is able to recover from a re-letting; or the lessor may stand by and do nothing, holding the lessee liable for the rent due as it matures, which means all remaining rent due if there is an acceleration clause and the lessor chooses to exercise the right to accelerate. Coast Federal Savings and Loan Association v. DeLoach, 362 So.2d 982 (Fla.App.1978). Re-entering the premises and re-letting for the account of the lessee is, thus, a remedy available under both the Lease and Florida law. Section 9.02(b) of the Lease. In this case, the parties are in agreement, and the district court concluded, that the lease has not been terminated. Vareka re-entered The Quarters to manage and operate it for the account of AIP, pursuant to section 9.02(b). AIP argues that under Florida law a lessor’s cause of action for damages does not accrue until the time when the forfeited term, if it had not been forfeited, would have expired. Hyman v. Cohen, 73 So.2d 393, 398 (Fla.1954); Kanter v. Safran, 68 So.2d 553, 558 (Fla.1953). Consequently, the court’s grant of summary judgment regarding liability was error at this time. AIP also cites Coast Federal Savings for the proposition that when a lessor retakes possession for the account of the lessee, he loses the right to recover the full amount of the remaining rental due under an acceleration clause. Coast Federal Savings and Loan Association v. DeLoach, 362 So.2d 982, 984 (Fla.1978). Coast Federal Savings is distinguishable. In this case, Vareka does not seek to recover “the full amount of remaining rental due.” In its May 20, 1982, order, the district court specifically stated: Issues have been raised and arguments have been presented concerning prospective rights and liabilities under the lease agreement. This ruling does not address those issues. It deals only with the liability of the defendants up to the date of trial. Whether the defendants could seek a recovery of future profits, should they ever exist, if the plaintiff continues to hold the property for their account, remains an open question. [Emphasis added.] Neither Kanter nor Hyman preclude summary judgment as to liability. The district court correctly cited Chandler for the proposition that, under Florida law, parties may negotiate any contract not violative of law or public policy. Chandler Leasing Division, etc. v. Florida-Vanderbilt Development Corp., 464 F.2d 267, 271 (5th Cir.), cert. denied, 409 U.S. 1041, 93 S.Ct. 527, 34 L.Ed.2d 491 (1972). In Chandler the court stated, We recognize that under the Florida case law there are three remedies available to lessors when their lessees breach a lease agreement. However, these remedies are not established as the sole remedies which may be provided for lease breaches, but are intended to supply remedies when none are provided in the lease or when broader contractual lease remedies violate public policy. In this case, the lease specifically provides that when the landlord takes possession upon default and re-lets for the account of the tenant, the tenant is liable for minimum rent due minus the net proceeds of re-letting on a monthly basis. Further, the lease entitled the landlord to “recover the same from Tenant on each such day.” Because the parties have stipulated that the lease was not terminated and that Vareka is in possession of the premises for the account of AIP, the district court correctly granted summary judgment as to liability based upon section 9.02(b) of the lease. C. Accrual of the Cause of Action for Damages AIP also argues that under Florida law, a lessor operating for the account of the lessee has an affirmative duty to mitigate damages by making a good-faith effort to re-let the premises. Robinson v. Peterson, 375 So.2d 294, 296 (Fla.App.1979). AIP argues that hiring Coldwell Banker to operate the office park and entering into subleases of office suites with new and renewing subtenants did not satisfy the affirmative duty to use good efforts to re-let. At oral argument, it became clear that AIP’s position is that Vareka was required to re-let the premises to a prime tenant, such as AIP had been, who would then sublease to other tenants. AIP correctly states Florida law: Had the lessee prevailed on the question of whether the lessor did in fact use good efforts to re-let, the lessor’s right of recovery would have been entirely defeated. Robinson v. Peterson at 297. This language does not preclude recovery of damages in this case. After resuming possession, Yareka retained Coldwell Banker Property Management Corporation to manage The Quarters. Although Coldwell Banker did not find a new prime tenant, AIP concedes that Cold-well Banker entered into subleases of office suites with new and renewing subtenants. The cases cited by AIP for the proposition that Vareka had an affirmative duty to re-let, Robinson v. Peterson and Coast Federal Savings, both involve a single lease rather than a “prime lease and sublease” fact pattern. Robinson v. Peterson, 375 So.2d 294 (Fla.App.1979); Coast Federal Savings and Loan Association v. DeLoach, 362 So.2d 982 (Fla.App.1978). Thus, in their single lease fact patterns, “re-letting” was the only means available to mitigate damages. In Kanter v. Safran, the court stated: [This case] eliminates any thought that the lessor is necessarily required to seek an assignment of the defaulting lessee’s specific interests or to sell only the remaining term of the original lease, since that term is ‘at an end.’ He is required only to recoup only what he can in good faith, consistent with his own interest as well as that of the defaulting lessee. Kanter v. Safran, 82 So.2d 508, 509 (Fla.1955). Although not specifically applicable to this case, Kanter indicates that Florida law requires a good-faith effort to mitigate damages as opposed to requiring mitigation of damages by a specific method. Further, section 9.02(b) of the lease specifically gives the landlord authority to execute any subleases and specifies that the tenant is liable for damages “whether or not the Premises or any part thereof be re-let.” Because the district court found that Coldwell Banker’s management had “been efficient and successful,” Vareka satisfied Florida’s requirement that the lessor mitigate damages and thus, was not precluded from recovering damages. D. Mitigation of Damages AIP asserts that the documentary evidence was insufficient to show damages. Upon re-entry, Vareka retained Coldwell Banker Property Management Corporation to manage the operation of The Quarters Office Park. Review of the record indicates that there was sufficient detail to support the expenses recoverable by Vareka under the terms of the lease. The district court concluded that the “monthly reports for the operation of The Quarters, as prepared by Coldwell Banker, are not in error.” Thus, we find the district court’s award of damages correct. E. The Jurisdictional Prerequisites of Rule 4(a)(4) Vareka argues that AIP’s trial court motion to alter or amend was not in fact a motion under Fed.R.Civ.P. 60, but a motion to alter or amend under Fed.R.Civ.P. 59(e). Consequently, AIP should have filed a notice of appeal within thirty days after docketing of the order denying the motion to alter or amend. Fed.R.App.P. 4(a)(4). On June 14, 1982, AIP filed a motion to alter or amend pursuant to Rules 59 and 60 of the Federal Rules of Civil Procedure. On July 9, 1982, the district court, without discussion, denied the motion. On October 29, 1982, a panel of this court denied Vareka’s motion to dismiss this appeal, stating that the trial court motion in question was to be treated as a “rule 60 motion rather than a rule 59 motion, so that Fed.R.App.P. 4(a)(4) does not apply.” The panel correctly denied the motion to dismiss. Review of AIP’s original motion to alter or amend did not address itself to the merits of the case, as Vareka argues. Consequently, this appeal is properly before the court. Smith v. United States Parole Commission, 721 F.2d 346 (11th Cir.1983). We therefore affirm the final judgment of the district court. AFFIRMED. . Title 28 U.S.C.A. § 1332(a) and (c) provides in pertinent part: (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between— (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of different States in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603d(a) of this title, as plaintiff and citizens of a State or of different States. (c) For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.... . Former Fifth Circuit case, Section 9(1) of Public Law 96-452-October 14, 1980. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant? A. bank B. insurance C. savings and loan D. credit union E. other pension fund F. other financial institution or investment company G. unclear Answer:

songer_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). UNITED STATES of America, Appellee, v. Welcome Linden FRALEY, III, Appellant. No. 26328. United States Court of Appeals, Ninth Circuit. Nov. 26, 1971. David M. Rothman (argued), Los An-geles, Cal., for appellant. Larry S. Flax, Asst. U. S. Atty. (argued), Robert L. Meyer, U. S. Atty., Los Angeles, Cal., for appellee. Before BARNES, KOELSCH and HUFSTEDLER, Circuit Judges. KOELSCH, Circuit Judge. Welcome Linden Fraley, III, appeals from the judgment of the district court convicting him of disobeying the order of his Selective Service Board to report for induction into the armed forces of the United States. (50 U.S.C.App. § 462(a)). He challenges the validity of the judgment on several grounds. However, a discussion of all of them is unnecessary, for one has merit and requires reversal of the judgment. United States v. Kember, 437 F.2d 534, 536 (9th Cir. 1970), cert. denied, 402 U.S. 923, 91 S.Ct. 1392, 28 L.Ed.2d 662 (1971), holds that “the appeal board as well as the local board [must] state its reasons for denial of a conscientious objector claim where the application therefor is prima facie sufficient, unless the appeal board’s reasons can be determined from the agency record with reasonable certainty.” That rule, applicable here, is dispositive of this appeal. Although Fraley made out a prima facie showing in support of his claim as a conscientious objector, the local board denied him such classification. Thereafter, the appeal board made a de novo determination [Bishop v. United States, 412 F.2d 1064 (9th Cir. 1969)] and likewise classified him 1-A. It specified no reason or reasons for its determination and none is apparent from the administrative record “with reasonable certainty.” United States v. Kember, supra,, 437 F.2d p. 536. In that respect this case is wholly unlike United States v. Verbeek, 423 F.2d 667 (9th Cir. 1970), where “fresh and powerful evidence” of the registrant’s insincerity, not before the local board, was initially presented to the appeal board; instead, it falls in the category of cases such as United States v. Atherton, 430 F.2d 741 (9th Cir. 1970), in which the “appeals board had no more information to go on than did the local board; * ? * ” In Atherton, supra, the conviction was reversed, where the appeal board had nothing before it save the record of the local board, and it was impossible to ascertain whether the latter board’s denial of the registrant’s conscientious objector claim was based upon an erroneous standard of religious belief. Here, even if we assume the appeal board adopted the local board’s reasons, the latter’s statement of them is both ambiguous and uncertain.- It is impossible to determine whether the local board concluded (erroneously) that Fraley’s beliefs were not religious, or whether Fraley was not sincere in his profession of them, or both. Thus, because as in United States v. French, 429 F.2d 391, 392 (9th Cir. 1970) “we cannot tell whether or not the Appeal Board relied upon the erroneous ground” the order to report was invalid and the conviction must be and is Reversed. . “Statement: The reason why we feel that the conscientious objector status be denied: 1. Ou the initial filing of the form 150 there is very little to indicate the basis for this individual’s belief. In most instances questions were answered with one short sentence. 2. The report of the appearance before the Government Appeal Agent indicates nothing whatsoever to do with beliefs that would sustain a conscientious objector status, but delves into the physical and mental status of the individual with respect to the Armed Forces. 3. At the inception of this Personal Appearance the registrant submitted a three page hand written document setting forth numerous reasons why he is not acceptable for the armed services, but nothing verifying why he is not acceptable. 4. Upon considerable questioning as to the religious beliefs, as the record of this hearing will show, at no time did he give answers that would show basic or deep seated reasons for non violence. In fact registrant did indicate on one answer that where he had a choice he would prefer not to destroy. It is the majority opinion of this board that the Selective Service Regulations do not give the registrant the choice in this case.” 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: