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What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. Eugene Kevin WELLS, Plaintiff-Appellant, v. Edward MURRAY, Director, Virginia Department of Corrections, Defendant-Appellee. No. 86-7683. United States Court of Appeals, Fourth Circuit. Argued March 2, 1987. Decided Oct. 13, 1987. Deborah C. Wyatt (Gordon & Wyatt, Jeffrey M. Gleason, Martin & Martin, Charlottesville, Va., on brief), for plaintiff-appellant. Frank Snead Ferguson, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen. of Virginia, Richmond, Va., on brief), for defendant-appellee. Before WINTER, Chief Judge, and MURNAGHAN and ERVIN, Circuit Judges. ERVIN, Circuit Judge. This is an appeal from the dismissal of Eugene Kevin Wells’s federal habeas corpus petition. Wells shot and killed a teenager who had vandalized his car. At trial in Virginia state court, there was conflicting evidence as to whether this shooting was accidental or not. The jury convicted Wells of first degree murder and use of a firearm in the commission of a felony. After his appeal to the Virginia Supreme Court was dismissed, Wells petitioned for habeas corpus relief in federal district court. His petition was denied. On appeal, Wells claims several procedural errors of a constitutional magnitude. He attacks the trial court’s refusal to allow defense counsel to ask certain questions during voir dire, the trial court’s exclusion of expert testimony concerning the propensity of his weapon for self-firing, and the propriety of jury instructions on self-defense. In our view, none of these alleged errors warrant reversal. Accordingly, we affirm the denial of Wells’s habeas corpus petition. I. At the time of the shooting incident, Wells lived in a remote area of Culpeper County, Virginia. On the weekend of September 3, 1983, a group of teenagers went camping near Wells’s home. Wells discovered some of the teenagers vandalizing his car. One of the youths, eighteen year-old Joe Maybury, had smashed a rear window of the car. When Wells confronted the teenagers, they fled. Wells then returned to his home and considered the situation while drinking several beers. Later that afternoon, Wells went to a lake where the teenagers were swimming. He took his shotgun with him. As he came upon the youths, Wells fired a warning shot into the air. He recocked his weapon and advanced upon the boys. There was conflicting testimony at trial as to the ensuing events. According to the prosecution’s witnesses, Wells pointed the shotgun at Maybury and prodded him with it; May-bury was shot when he tried to push the shotgun away. Wells testified that May-bury attempted to grab the shotgun, that there was a struggle over possession of the weapon, and that the weapon accidentally discharged during the struggle. Maybury was shot in the abdomen. He subsequently died as a result of his gunshot wounds. Wells was tried before a jury in the Circuit Court of Culpeper County in December, 1983. He was convicted of first degree murder and use of a firearm in the commission of a felony. Wells was sentenced to life imprisonment for the murder charge and a term of two years for the firearms charge. He unsuccessfully appealed to the Virginia Supreme Court. He then petitioned for habeas corpus relief in federal district court, but his petition was denied. Wells now appeals the denial of his federal habeas corpus petition. II. A. Voir Dire Wells first claims that he was denied a fair trial, in violation of the sixth amendment and the due process clause of the fourteenth amendment of the United States Constitution, because the trial judge failed to inquire adequately into juror prejudice on voir dire. Wells’s claim arises from the publicity surrounding an earlier Culpeper County trial. Less than a week before Wells’s trial, several of the jurors who were in his jury pool sat on another criminal case involving embezzlement charges, Commonwealth v. Richards, (Criminal Court File No. 2516, Nov. 30, 1983). In Richards, the jury returned a verdict of not guilty. The presiding judge, who was not the judge in Wells’s trial, criticized the jurors upon hearing their verdict. He stated that, by their verdict, the jurors were “telling the ’citizens and people of Culpeper County that it’s all right for an employee to [embezzle].” He called their verdict a “gross miscarriage of justice.” The judge asserted that he would have found the defendant guilty in about two minutes. He then discharged the jurors, admonishing them to return by December 6, 1983, the opening day of Wells’s trial. The judge's criticism attracted the attention of a local newspaper, which printed a front-page story on the incident. At the start of Wells’s trial, defense counsel proposed several voir dire questions based on the jurors’ prior participation in the Richards case. Counsel wished to inquire whether the jurors were more inclined to convict Wells after being chastised for their leniency by the judge in Richards. The trial judge did not permit those questions to be asked. Instead, the judge asked more general questions, such as whether any of the prospective jurors had a personal interest in the outcome of Wells’s case, and whether any of them had prior knowledge of Wells’s case. When the prospective jurors indicated such prior knowledge, the judge questioned them individually, asking them what they had learned and how their knowledge would affect their views of the case. All of the veniremen questioned stated that their knowledge of the case would not influence their decision. Wells claims that these questions were insufficient, and that the trial court committed reversible error by failing to inquire into the effect of the public castigation which the Richards jurors experienced. His claim raises the much-litigated issue of pretrial publicity. It is firmly established that a defendant such as Wells is entitled to a fair trial, free from publicity that prejudices jurors against the defendant at its outset. See Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961) (“the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors”); see also United States v. Sawyers, 423 F.2d 1335, 1344 (4th Cir.1970). Jurors, however, are presumed to be impartial, absent indications to the contrary. The existence of a juror’s preconceived notion as to the guilt of the accused will not by itself destroy the presumption of impartiality. See Irvin, 366 U.S. at 723, 81 S.Ct. at 1642-43. Only in extreme circumstances may prejudice to a defendant’s right to a fair trial be presumed from the existence of pretrial publicity itself. See United States v. Haldeman, 559 F.2d 31, 60, (D.C. Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). In other, less extreme situations, when external events such as pretrial publicity raise a strong possibility of jury bias, the court has a duty to determine whether the accused may have a fair trial. Inquiry into jury bias typically entails an evaluation of “the pre-trial publicity complained of and its impact, if any, on the jury, as developed through adequate voir dire examination of the jurors____” Wansley v. Slayton, 487 F.2d 90, 92-93 (4th Cir.1973), cert. denied, 416 U.S. 994, 94 S.Ct. 2408, 40 L.Ed.2d 773 (1974). It is the defendant’s responsibility to demonstrate a strong possibility of jury bias. He must show, through adequate voir dire, that he was denied his right to a fair trial before a panel of unbiased jurors. See Haldeman, 559 F.2d at 60. The assertion that voir dire was inadequate, by itself, does not prove that the jury was not impartial. As noted in Wansley, “ ‘it is not sufficient to simply allege adverse publicity without a showing that the jurors were biased thereby.’ ” Id. at 92 n. 8 (quoting Ignacio v. Guam, 413 F.2d 513, 518 (9th Cir.1969), cert. denied, 397 U.S. 943, 90 S.Ct. 959, 25 L.Ed.2d 124 (1970)). In this case, Wells has not shown that he was, in all likelihood, denied his right to a fair trial. The publicity which Wells complains of — publicity surrounding the verdict in the Richards case — simply does not raise a strong possibility of jury bias. The trial court, then, acted within its discretion in refusing, during voir dire, to inquire into the effects of that publicity on the Richards jurors. We reach this conclusion after much thought and consideration. A comparison of this case with leading decisions concerning the effects of pretrial publicity on the extent of voir dire is instructive. Wells urges us to analogize his case to the Supreme Court’s decision in Irvin. The analogy is not an appropriate one. In Irvin, the defendant was indicted on murder charges in one Indiana county, where press releases stated that the defendant had confessed to the murder. The defendant was granted a change of venue to a nearby county that had also received the press releases. He was denied a second change of venue to a more remote county, and was subsequently convicted. The Supreme Court held that the defendant was denied his due process rights under the fourteenth amendment because his trial in state court was not impartial. The situation in Irvin must be distinguished from the instant situation. In Irvin, the unfavorable publicity concerned the defendant himself, and it was disseminated throughout the community in which he was tried. By contrast, in this case, the publicity of which Wells complains did not concern Wells and the shooting incident. Instead, the media reported the castigation of several of Wells’s veniremen by a different judge, in a different ease, involving different issues. Wells asserts that this castigation made the Richards jurors reluctant to acquit a defendant in a later case. His assertion is too weak to warrant a reversal, especially in light of the Irvin Court’s cautionary note: It is not required ... that the jurors be totally ignorant of the facts and issues involved____ To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. 366 U.S. at 722-23, 81 S.Ct. at 1642-43. Like Irvin, later Supreme Court decisions have stressed that the kind of adverse publicity that warrants reversal of a criminal conviction is publicity that concerns the defendant himself. See, e.g., Sheppard v. Maxwell, 384 U.S. at 363, 86 S.Ct. at 1522 (reversal of murder conviction required when defendant’s alleged crime was subject of heavy media coverage before and during the trial, and trial judge failed to shield defendant from publicity). Additionally, every case we have examined that discusses the trial court’s duty, during voir dire, to inquire into the effects of pretrial publicity, focuses on publicity about the defendant. See, e.g., Jordan v. Lippman, 763 F.2d at 1265-67 (trial court’s failure to conduct voir dire on inflammatory publicity in murder trial of black inmate violated defendant’s constitutional rights); United States v. Davis, 583 F.2d 190, 196 (5th Cir.1978) (inadequate voir dire required reversal of defendant’s conviction where defendant participated in widely-publicized jailbreak). This distinction between publicity about the defendant and other types of publicity is strengthened by our decision in Wansley v. Slayton. In Wansley, we held that the denial of a defendant’s motion for a change of venue based upon adverse pretrial publicity was not a violation of due process. Significantly, we noted that: The most strongly pressed complaint of the petitioner on publicity ... deals with comments published from time to time, not about the petitioner, but about one of his counsel---- It is doubtful, however, that any pre-trial reference in the press to an accused’s attorney in the absence of any prejudicial or unfair comment on the accused himself or the merits of his offense, can justify a finding that the accused’s right to a fair trial has been so prejudiced that due process is violated. Wansley, 487 F.2d at 95 (emphasis in the original). The distinction we draw between unfavorable pretrial publicity about a defendant, which often warrants a voir dire inquiry, and publicity about other matters, which may not warrant such an inquiry, seems to us a reasonable one. The trial court’s duty to inquire into the effects of any adverse publicity on jurors’ views is not absolute; this duty is prompted only by a “constitutionally significant likelihood that, absent questioning[,] ... jurors would not be indifferent____” Turner, 106 S.Ct. at 1686. As Irvin and its progeny indicate, the likelihood of juror bias is strongest when the adverse publicity concerns the defendant himself and creates a hostile atmosphere in the community that permeates the jury box. The possibility of juror bias is much more remote when the publicity neither affects the defendant, nor gives the jury any concrete reason to doubt the defendant’s innocence. This was the case in Wansley, in which the publicity of which the defendant complained involved defense counsel, rather than the defendant. It is also the case here, because the publicity at issue concerned the jurors’ participation in an earlier trial, rather than the defendant. Our conclusion is also supported by decisions discussing the effect that a trial judge’s remarks about a jury’s verdict have on the jurors. Generally, reviewing courts have not treated such remarks harshly; a trial judge’s comments do not warrant reversal unless they are so prejudicial as to constitute the denial of a fair trial. See United States v. Preston, 608 F.2d 626, 636 (5th Cir.1979). Courts have applied this principle to a judge’s remarks about a verdict, as well as a judge’s comments during trial. See United States v. Benson, 495 F.2d 475 (5th Cir.), cert. denied, 419 U.S. 1035, 95 S.Ct. 519, 42 L.Ed.2d 310 (1974); United States v. Salazar, 480 F.2d 144 (5th Cir.1973); Chavez-Martinez v. United States, 407 F.2d 535 (9th Cir.), cert. denied, 396 U.S. 858, 90 S.Ct. 124, 24 L.Ed.2d 109 (1969). Salazar is especially instructive, since it involves a factual situation similar to our own. In Salazar, the defendant was prosecuted for possession of marijuana with the intent to distribute. His venire included twelve individuals who had sat on a similar criminal case involving a different defendant. In that earlier case, the jury had acquitted the defendant. The trial judge, like the Richards judge, had expressed his disagreement with the jury’s decision. Significantly, the Salazar court found that the judge’s public disapproval of the verdict in the earlier case was not dispositive: “The mere fact that a judge informs a jury, after the verdict, that he probably would have reached a different conclusion does not disqualify that jury for further service.” Salazar, 480 F.2d at 145. The Benson court relied on this language in finding no prejudice to the defendant, although his venire included several jurors who had been praised by the same judge for returning a guilty verdict in an earlier case. See Benson, 495 F.2d at 482. The government had argued that defense counsel had made several procedural mistakes, such as failing to exercise any peremptory challenges, which should have precluded defendant’s claim of prejudice. The court stressed that, regardless of whether or not these alleged mistakes occurred, the defendant was not denied his right to an impartial jury. The court relied upon Salazar’s ruling that the judge’s comments disapproving the jury’s verdict did not bar jurors from further service; it extended that ruling to the judge’s comments approving the jury’s verdict. Benson suggests that the principle articulated in Salazar may be applied to a number of situations in which the trial court comments upon the jury’s verdict, including the situation presented in Wells’s case. Chavez-Martinez, which was decided pri- or to Salazar and Benson, also found no prejudice resulting from a judge’s post-verdict comments. In that case, the defendant was convicted of drug smuggling charges. The defendant claimed that the trial judge erred in not asking potential jurors, on voir dire, whether they would be influenced by the judge’s criticism of a jury’s verdict in another case. The court of appeals held that the defendant was not prejudiced by the trial judge’s omission. The court found that the trial judge’s questions to the jury had eliminated any possible prejudice to the defendant. The few decisions which adopt a more restrictive tone, see, e.g., United States v. Bland, 697 F.2d 262 (8th Cir.1983); Everitt v. United States, 281 F.2d 429 (5th Cir. 1960), and indicate that the trial judge’s post-verdict comments may hamper jurors from serving on further juries, are distinguishable from Wells’s case. In Bland, the defendant was convicted in federal district court for violations of gun control laws. After the jury returned its verdict, the trial judge remarked that criminal cases tried in federal court are generally more thoroughly investigated than those tried in state court. The judge also observed that successful defenses are less frequent in federal court than in state court and that most federal defendants are guilty of the crimes with which they are charged. The court of appeals held that the trial judge’s post-verdict remarks were not prejudicial to the defendant. Yet, the court also observed that the judge’s remarks would be prejudicial to other criminal defendants tried in federal court, because several of the jurors were likely to sit on additional federal criminal cases. See Bland, 697 F.2d at 266. The general nature of the trial court’s statement in Bland distinguishes that case from the present situation. The observations made by the Bland judge about the differences between federal and state trials, and the culpability of most federal criminal defendants, had broad applicability. These statements could have influenced the jurors’ decisions in future criminal cases they might sit on. It was the broad nature of the trial judge’s statements which the Bland court focused upon in indicating that those statements were prejudicial. By contrast, in the present case, the statements by the Richards judge of which Wells complains were narrowly tailored to fit the case at hand. The trial judge in Richards simply criticized the jurors for acquitting the defendant of embezzlement charges. His remarks, unlike the remarks of the trial judge in Bland, may not have influenced the jurors in future cases. We cannot say that the statements of the judge in Richards prejudiced the jurors, who considered a wholly different set of facts and charges in Wells’s case. Like Bland, Everitt is distinguishable from Wells’s case. The Everitt court examined the impact on the defendant, Glenn, of an earlier trial involving his codefendant, Everitt. The court held that it was reversible error to allow several jurors to sit on Glenn’s jury after they had returned a guilty verdict in Everitt’s case and had been praised by the trial judge for their speedy decision. Clearly, the two cases on which the jurors sat were more closely related in Everitt than in the present situation. In Everitt, the two cases involved codefendants; the jurors were likely to have received unfavorable information about Glenn when they sat on Everitt’s jury. The trial judge was the same in the two cases; the jurors might have felt compelled to present the judge with another guilty verdict after he had praised them for their decision in Everitt’s case. Neither of these considerations applies in the present situation. Wells’s case was unconnected to the Richards case, and the trial judge in Wells’s case was not the same judge who presided over the Richards trial. We conclude that the trial judge did not commit reversible error in failing to question the prospective jurors about the impact which the Richards case had on them. We hasten to add, however, that we do not condone the behavior of the trial judge in Wells’s case. The better practice would have been for the trial judge to prevent the Richards jurors from sitting in Wells’s trial. The judge could have easily discovered which of the veniremen sat on the Richards jury, and removed them from the jury selection process. In this manner, the judge would have forestalled the complaint that Wells now makes. Yet, because Wells’s complaint raises no substantial likelihood of prejudice, the trial judge’s actions do not warrant a reversal. B. Refusal to Admit Evidence that the Gun Fired Accidentally Wells’s primary theory of defense at trial was that the gun which killed Maybury discharged accidentally during the struggle between Wells and Maybury. A state expert examined the gun and determined that it could be made to fire without pulling the trigger. Wells sought to introduce evidence to that effect at trial, and the judge held an evidentiary hearing after excusing the jury. In the course of the evidentiary hearing, the expert testified that he had caused the gun to fire by hitting it with a mallet. The expert also testified that the gun could have fired accidentally during a struggle, but only if it was struck against a solid object. The court refused to admit the expert testimony that the gun would discharge if hit with a mallet or struck with a solid object, basing its ruling on the fact that there was no evidence that the gun had received such a blow during the struggle. Evaluation of the admissibility of evidence is normally the province of the trial judge. See Moore v. Illinois, 408 U.S. 786, 799, 92 S.Ct. 2562, 2570, 33 L.Ed.2d 706 (1972); Savage v. Nute, 180 Va. 394, 23 S.E.2d 133, 137 (1942). However, exclusion of evidence so significant that the defendant is denied due process constitutes reversible error. See, e.g., United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (prosecution’s failure to disclose exculpatory evidence); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (right to confront witnesses). At a minimum, for the exclusion of evidence to constitute a denial of due process, the defendant must show that the excluded evidence would have been material to his defense. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982). Wells makes no such showing. He asserted during oral argument that the failure to allow the introduction of the expert testimony adversely affected the jury’s perception of his credibility, since he testified that the gun had discharged accidentally. That argument is not persuasive. Wells would not have appeared any more credible in light of evidence that the gun could, in theory, discharge accidentally. The testimony which he sought to introduce would have shown that the gun could discharge accidentally only in circumstances other than those which he testified existed, i.e., upon a blow from a solid object. C. Jury Instructions Wells claims that the trial judge erred in instructing the jury on self-defense. Wells requested a jury instruction on pure self-defense, which the judge declined to give. Instead, the judge gave an instruction pertaining to self-defense after withdrawal from aggression. On appeal, Wells attacks both the trial judge’s failure to give his instruction and the propriety of the instruction that the judge did give. Wells’ contention that the trial judge should have instructed the jury on pure self-defense can be quickly answered. A defendant is only entitled to a charge for which there is a foundation in the evidence. See United States v. Parker, 742 F.2d 127, 129 (4th Cir.), cert. denied, 469 U.S. 1076, 105 S.Ct. 575, 83 L.Ed.2d 514 (1984); 2 C. Wright, Federal Practice & Procedure § 485, at 710 (1982). It was simply not open to Wells to claim pure self-defense when he had initiated the altercation by approaching the unarmed victim and pointing a loaded shotgun at him. Wells’s second claim is that the self-defense instruction which was tendered — as to withdrawal after aggression — was misleading and confusing. We reject Wells’s claim that the charge might have led the jury to conclude that self-defense was not a defense available to him. The withdrawal instruction read as follows: The court further instructs the jury that where the plea of self defense is relied upon in a trial for murder, the law is that a plea of self defense is not available to the party unless he was without fault in bringing about the difficulty. If you believe that the defendant was with some fault in provoking or bringing on the scuffle, and if you further believe that when attacked he retreated as far as he could safely, as he safely could under the circumstances in a good faith attempt to abandon the fight and made known his desire for peace by word or act and that he reasonably feared under the circumstances as they appeared to him that he was in danger of being killed or was, or he was in danger of great bodily harm, then the killing was in self defense and you shall find the defendant not guilty. In reviewing this jury instruction, we must read the instruction as a whole. See Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); Gore v. Leeke, 605 F.2d 741, 742-43 (4th Cir.1979), cert. denied, 444 U.S. 1087, 100 S.Ct. 1048, 62 L.Ed.2d 774 (1980). Surely, the jury would not have thought that the first sentence of the charge (“a plea of self defense is not available to the party unless he was without fault in bringing about the difficulty”) mooted the effect of the following sentences which addressed self-defense after aggression and withdrawal. Apart from the merits of the claim that the instruction was confusing, the government argues that Wells cannot now raise the issue, because he failed to enter a contemporaneous objection at trial. A federal habeas petitioner who has failed to comply with the contemporaneous objection rule at trial must show cause for the procedural default and some resulting prejudice in order to obtain review of his constitutional claim. See Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2678, 91 L.Ed.2d 397 (1986) (Brennan, J., dissenting) (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). Wells can show neither cause nor prejudice. Thus, his claim of prejudice from the misleading jury instruction must fail for the additional reason of procedural default. In conclusion, we uphold the decision of the district court denying Wells’s habeas corpus petition. We find no merit in Wells’s attacks on the exclusion of expert testimony and the jury instruction on self defense. The voir dire issue is more difficult to. resolve. We are, however, unwilling to upset the trial court’s refusal to question the jurors about the Richards case, when Wells has not shown that the court’s action created a substantial likelihood of prejudice. The judgment of the district court denying the petition for habeas corpus is AFFIRMED. . See Hoffman, "Judge Raps Jury for Setting Richards Free,” Culpeper Star Exponent, Dec. 1, 1983, at 1-2, cols. 1-3. . Such affirmations are not universal guarantees of prospective jurors’ impartiality. See, e.g. Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 2037, 44 L.Ed.2d 589 (1975): "In a community where most veniremen will admit to a disqualifying prejudice, the reliability of the others’ protestations may be drawn into question.” The veniremen’s avowals of impartiality, however, are most suspect where the jury is comprised of individuals from a community deeply hostile to the accused. See id. The situation described in Murphy is not present in this case. Wells does not claim that such a hostile atmosphere existed in Culpeper County. In Wells’s case, we think that the trial judge’s questions concerning prior knowledge of the shooting incident, and the veniremen’s responses, are factors in determining the adequacy of voir dire. See) e.g., United States v. Gullion, 575 F.2d 26, 30-31 (1st Cir.1978) (when trial judge polled veniremen for bias resulting from pretrial publicity, conduct of voir dire did not give rise to a sixth amendment violation). . The Haldeman court ruled that the extensive news coverage surrounding the Watergate affair, standing alone, did not raise a presumption of prejudice to the defendants' constitutional rights. The court stressed that cases creating such a presumption were rare; the Supreme Court had found only one instance where this presumption applied. See Rideau v. Louisiana 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). Haldeman, 559 F.2d at 60-61. In Rideau, the defendant’s confession to bank robbery, kidnapping, and murder was filmed and subsequently televised to tens of thousands of people in Calcasieu Parish, which had a total population of only 150,000. The court held that this publicity, which was tantamount to Rideau’s confession to a large segment of the community, prejudiced his right to a fair trial. Wells's case is clearly distinguishable from the Rideau situation. In contrast to Rideau, Wells strenuously argues his innocence, maintaining that Maybury’s shooting was accidental. Moreover, as developed further in the text of this opinion, Wells does not even complain of publicity which involved him, but only of publicity involving several of the jurors. . This strong possibility of jury bias has been characterized as a “reasonable likelihood,” Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966), a "constitutionally significant likelihood," Turner v. Murray, 476 U.S. 1, 106 S.Ct. 1683, 1686, 90 L.Ed.2d 27 (1986), or a "significant possibility," Jordan v. Lippman, 763 F.2d 1265, 1267 (11th Cir.1985). . In Ignacio, defense counsel failed to question the veniremen about the effect of the alleged pretrial publicity, although the trial judge gave counsel ample opportunity to do so. Despite the trial judge’s less compromising position in the present case, we think the principle articulated in Ignacio is applicable since Wells’s claim of bias is quite attenuated. . Wells also asks us to draw a parallel between his case and the Supreme Court’s decisions stressing the necessity of an adequate voir dire when racial prejudice is a factor. In his brief, Wells relies upon a number of decisions in which the Court considered a trial court’s refusal to ask prospective jurors about their racial biases upon the request of a black defendant. See Turner v. Murray, 476 U.S. 1, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986); Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). In Ham, the Court held that the inquiry into racial prejudice was of "constitutional stature.” Ham, 409 U.S. at 528, 93 S.Ct. at 851. Yet, subsequent decisions limited the scope of Ham. For instance, in Ristaino, the Court cautioned that “[b]y its terms Ham did not announce a requirement of universal applicability. Rather, it reflected an assessment of whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be [indifferent]____" Ristaino, 424 U.S. at 596, 96 S.Ct. at 1021. More importantly, we think that the cases treating racial bias are not applicable to the present situation. Those cases are premised on the notion that racial bias may pose a constitutionally significant threat to the jurors’ impartiality. Such a powerful threat is absent in Wells’s case. Indeed, the Ham decision itself makes a distinction between inquiries into racial prejudice and other forms of prejudice. For example, the Court held that the trial court’s refusal to question prospective jurors about their prejudices against bearded men, when the defendant was bearded, did not amount to a constitutional violation. See Ham, 409 U.S. at 528, 93 S.Ct. at 851. . Our decisions in a related field also support the distinction between publicity unfavorable to a defendant and other types of publicity. See Donovan v. Davis, 558 F.2d 201 (4th Cir.1977); Wall v. Superintendent, Virginia State Penitentiary, 553 F.2d 359 (4th Cir.1977). In both of these cases, we found that the defendant was denied his right to a fair trial because several of the jurors had previously sat on a jury which had received unfavorable information about the defendant. We stressed that it was the receipt of information about the defendant himself which potentially prejudiced the jurors and denied the defendant the right to a fair trial. See Donovan, 558 F.2d at 204. . The expert also stated that he had performed a “push-puH" test, reenacting with defense counsel the kind of struggle Wells testified had taken place. The gun did not discharge during the push-pull test. In the course of the hearing the expert unsuccessfully attempted to make the gun fire by hitting it painfully hard with his hand. . The instruction that Wells requested read: If you believe that the defendant was without fault in provoking or bringing on the scuffle and if you further believe that the defendant reasonably feared, under the circumstances as they appeared to him, and he was in danger of being killed or that he was in danger of great bodily harm, then the killing was in self-defense and you shall find the defendant not guilty. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

songer_usc1

15

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. MUNICIPAL ELECTRIC ASSOCIATION OF MASSACHUSETTS et al., Petitioners, v. SECURITIES AND EXCHANGE COMMISSION, Respondent, Vermont Yankee Nuclear Power Corp., Intervenor. MUNICIPAL ELECTRIC ASSOCIATION OF MASSACHUSETTS et al., Petitioners, v. SECURITIES AND EXCHANGE COMMISSION, Respondent, Maine Yankee Atomic Power Co., Intervenor. Nos. 22079, 22080. United States Court of Appeals District of Columbia Circuit. Argued Sept. 8, 1969. Decided Nov. 13, 1969. Mr. George Spiegel, with whom Messrs. Worth Rowley and John C. Scott, Washington, D. C., on the brief, for petitioners. Mr. Philip A. Loomis, Jr., General Counsel, Securities and Exchange Commission, with whom Messrs. David Ferber, Solicitor, and Aaron Levy, Associate Director, Division of Corporate Regulation, Securities and Exchange Commission, were on the brief, for respondent. Mr. Walter P. North, Associate General Counsel, and Mrs. Janet G. Gamer, Attorney, Securities and Exchange Commission, at the time the record was filed, also entered appearances for respondent. Mr. George H. Lewald, South Hanover, Mass., of the bar of the Supreme Judicial Court of Massachusetts, pro hac vice, by special leave of court, for intervenors. Mr. Jerome Ackerman, Washington, D. C., also entered an appearance for in-tervenors. Before FAHY, Senior Circuit Judge, and McGOWAN and TAMM, Circuit Judges. PER CURIAM: Petitioners Municipal Electric Association of Massachusetts, and others, now referred to as Municipals are the same parties who sought review in this court of orders of the Securities and Exchange Commission, approving the issuance by the Yankees of stock to their sponsors. In Municipal Elec. Ass’n of Mass. v. Securities and Exchange Comm’n., 134 U.S.App.D.C.-, 413 F.2d 1052 (1969), decided on March 26, 1969, we set aside the orders and remanded the cases to the Commission. Municipals’ present petitions challenge the Commission’s orders permitting, under Section 6(b) of the Public Utility Holding Company Act of 1935, in the case of Vermont Yankee, and under Section 7 of the Act in the case of Maine Yankee, the issuance and sale of promissory notes to banking institutions to raise funds needed for interim financing of the construction of the respective power projects. Municipals contend that the interest of the public, investors, and consumers mentioned in the sections referred to, which the Commission must consider in authorizing financing through the notes, includes antitrust factors, as in the case of stock acquisitions, and that the Commission erroneously denied to Municipals an evidentiary hearing on its anticompetitive allegations with respect to the financing. Any antitrust considerations included in the public, investor and consumer interest referred to in Sections 6 and 7 of the Act, we think in all the circumstances of the present petitions might well be resolved under the terms of our remand of March 26, 1969, in Municipal Elec. Ass’n of Mass. v. Securities and Exchange Comm’n, supra. In so concluding we observe that we do not have before us the question whether the action of the Commission, of which we have been advised, in reinstating its approval of the stock acquisitions, subject to conditions to be determined, fully satisfies our March 26 decision and remand. We accordingly deny the present petitions without prejudice to such right of review as might be appropriate with respect to further orders of the Commission in these matters. It is so ordered. . Vermont Yankee Nuclear Power Corporation and Maine Yankee Atomic Power Company. . Nos. 21707, 21822, and 21927 in this court. . 15 U.S.C. § 79 et seq. . Vermont Yankee proposed to issue and sell $20,000,000 in promissory notes; Maine Yankee proposed a similar transaction of $30,000,000. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

songer_oththres

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". STATE CORPORATION COMMISSION, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, and Missouri Pacific Railroad Company, Intervenor-Respondent. No. 86-2470. United States Court of Appeals, Tenth Circuit. Dec. 5, 1989. Publication Ordered Jan. 31, 1990. Frank A. Caro, Jr., Gen. Counsel, and Glenda L. Cafer, Asst. Gen. Counsel, Kan. Corp. Com’n, Topeka, Kan., for petitioner State Corp. for State of Kan. Robert S. Burk, Gen. Counsel, Ellen D. Hanson, Associate Gen. Counsel, and Evelyn G. Kitay, Interstate Commerce Com’n, Washington, D.C., for respondent Interstate Commerce Com’n. Charles F. Rule, Asst. Atty. Gen., Catherine G. O’Sullivan and David Seidman, Dept, of Justice, Antitrust Div., Washington, D.C., for respondent U.S. Joseph D. Anthofer, Gen. Atty., Omaha, Neb., for intervenor-respondent Mo. Pacific R. Co. T.L. Green, T.L. Green & Associates, P.A., Topeka, Kan., filed an amicus curiae brief for Northeast Kan. Rail Users Ass’n. Before McKAY and BRORBY, Circuit Judges and BOHANON, District Judge. The Honorable Luther Bohanon, Senior United States District Judge for the Eastern, Northern and Western Districts of Oklahoma, sitting by designation. BOHANON, Senior District Judge. The State Corporation Commission for the State of Kansas (“KCC”) seeks review of an order of the Interstate Commerce Commission (“ICC”) which granted the Missouri Pacific Railroad Company (“MP”) the right to abandon 66 miles of track. KCC is primarily challenging several findings of the ICC and the sufficiency of the underlying evidence. In accordance with 49 U.S.C. § 10903, MP filed an application with the ICC in December 1985. The application was revised in March 1986 seeking abandonment of 66 miles of railway between milepost 337.8 near Parnell and milepost 403.8 near Vliets in Atchison, Jackson, Nemaha, and Marshall Counties, Kansas. In addition to a protest filed by KCC, twenty-six protests and objections to the abandonment were filed. On February 10, 1986, the ICC instituted an investigation into the application and set the proceeding for handling under the modified procedure. The ICC also reversed a prior order and instructed MP to submit data concerning overhead or bridge traffic. Evidence and arguments were presented to the ICC. Several interested parties filed verified statements concerning the impact of the potential abandonment of the track on the local economy and of other potential hardships on the area. Also, MP presented evidence relating to the income and the losses resulting from the operation of the line. The primary issue is whether the ICC’s decision to allow MP to abandon the line segment involved here was proper. The Administrative Procedure Act sets forth the standard of review as follows: “The reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law_” 5 U.S.C. § 706(2) (1977). Since the ICC’s decision is presumptively valid, this court’s review of the decision is limited to a determination of whether there is sufficient evidence to support the decision. Curtis, Inc. v. ICC, 662 F.2d 680, 685 (10th Cir.1981). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.” Id. Based on this standard of review, we must affirm the ICC’s decision. Bridge or Overhead Traffic The first argument that KCC sets forth is that the trial court erred in failing to consider revenues from the transportation of bridge or overhead traffic over the subject line. After considering the evidence, the ICC determined that “the bridge traffic is irrelevant to the abandonment of the line at issue here." We agree with this determination. The ICC determined that the overhead traffic could be effectively moved over a parallel line between Frankfort and Kansas City via Topeka. Thus, MP's revenues for the subject line would be unaffected by the revenues from the overhead traffic. If revenues are unaffected by abandonment, they should not be considered when determining to what extent a section of line is profitable. Illinois v. ICC, 722 F.2d 1341, 1345-46 (7th Cir.1983). "[L]ocal shippers who are unable to support a railroad cannot demand continued rail transportation simply because the branch is used for movement of through traffic which could be handled as expeditiously over other routes." Illinois v. ICC, 698 F.2d 868, 873 (7th Cir.1983), quoting Baltimore Ohio Railroad Co. Abandonment, 354 I.C.C. 240, 244 (1978). Revenue Evidence KCC argues that the ICC created a presumption that MP's revenue statistics were correct and improperly accepted actual transit revenues for the six months of 1985 as rebuttal. We cannot find that the ICC created a presumption in favor of MP that its statistics were correct. In a detailed discussion the ICC found that the protestants' figures were flawed or were presented without an explanation of the underlying facts on which they were based. For example, KCC included revenues from overhead traffic in its operations revenues. Thus, KCC's figures were defective. Two of the protestants submitted figures which also showed a loss to MP making it irrelevant whether those two protestants' figures were accepted over IVIP's figures. Further, the ICC did not accept MP's figures for the investment return on locomotives. The ICC allowed MP to substitute actual figures for the last six months of 1985. MP had originally submitted only estimates since the actual figures were unavailable. KCC argues that this decision constituted reversible error but concedes that actual figures are preferable to estimates. Further, the actual figures were higher than KCC's figures, and KCC has not argued that the actual figures were inaccurate. If the agency did commit an error, it did not prejudice KOC to its detriment and was thus harmless. Alternate Transportation KCC argues that the agency erred in finding that adequate alternate transportation was available. The KCC agrees that trucking is the only real alternative available. Only two to three percent of the grain from the area is transported by rail; the remaining grain is transported by trucks. None of the elevators contended that the abandonment would result in their closure. The court found trucking was an adequate alternative. KCC cites Georgia Public Service Commission v. United States, 704 F.2d 538 (11th Cir.1983), in support of their position. We agree that to have meaning, "adequate alternative transportation" must be interpreted to require transportation which is both logistically and economically feasible. Unlike Georgia Public Service where there was virtually no evidence to support a finding of alternative transportation, here there is substantial evidence to support the agency's finding. The protesting elevators' answers to MP's interrogatories indicate that the elevators regularly used motor service and that there existed at least six grain-hauling motor carriers in the area. None of the protesting elevators indicated that the abandonment of the line would result in closure of the elevator. Also between 97 and 98 percent of the grain is presently transported by motor carrier. In light of the evidence, the agency did not err in finding that adequate alternative transportation exists. Impact on Involved Communities KCC also argues that the agency erred in finding that the abandonment would have no serious adverse effect on the communities involved. KCC substantially makes the same argument that it did regarding adequate alternative transporta- tion; since no alternative transportation exists, the abandonment will have a serious adverse impact on the communities involved. We addressed KCC’s argument earlier. The agency considered the additional costs to the counties for upkeep and repair of roads and bridges. The MP averred that the costs proposed by the protestants were speculative and unsupported by the evidence. The speculative nature of the evidence is confirmed by the disparity among the protestants’ estimates. The agency also considered environmental issues and labor protection to evaluate the impact of the abandonment on the communities. KCC has not alleged that the agency’s findings regarding these two factors were in error. The agency’s decision regarding the impact on the communities involved is supported by substantial evidence. Perfection for Abandonment Lastly, KCC argues that the ICC erred in finding that MP did not perfect the line for abandonment. KCC urges that MP deliberately downgraded the line for abandonment by not matching motor carrier rates, by offering certain alternate routings, and by allowing car shortages to occur. The agency correctly found that MP did not perfect the subject section of line for abandonment. MP was not required to set rates competitive with those of motor carriers. The truck distances are shorter than the rail distances and many of the trucks are owned by the owner-operators who do not have terminal costs. Given these facts, MP has not been able to provide rates which are competitive with the motor carrier. Further, there was no showing that if MP had provided rates at or near the level of motor carrier that MP would have made a reasonable profit on the subject line. MP presented plausible reasons for its routing decision and car usage. Further, routing and car usage are discretionary management decisions. Given the business reasons for MP’s routing and car usage decisions, we cannot say the agency incorrectly found that MP did not perfect the line for abandonment. Conclusion A decision to allow an abandonment involves balancing “ ‘[t]he benefits to particular communities and commerce of continued operation [against] the burden thereby imposed upon other commerce.’ ” Georgia Public Service Commission at 541, quoting Colorado v. United States, 271 U.S. 153, 168, 46 S.Ct. 452, 455-56, 70 L.Ed. 878 (1926). In determining whether abandonment is proper, the agency must consider the profitability of the line as well as the affect on the communities involved. “Where there is substantial support in the record for the Commission’s findings, it is not the court’s function ‘to substitute its own conclusions for those which the Commission had fairly drawn from such findings.’ ” Illinois v. ICC, 698 F.2d at 871, quoting Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974). Here there is substantial support for the agency’s decision. It is apparent from the agency’s written opinion that it carefully considered the relevant factors and then balanced the competing interests. The agency then decided that abandonment of the line was proper. The ICC’s decision was in accord with the evidence and the law, and we must affirm. . In the original application filed in December 1985, MP sought to abandon 71.5 miles of track. In the revised application, MP sought to abandon only 66 miles of track. . Bridge or overhead traffic is traffic which does not originate or terminate at a point on the 66 miles of the subject railway. Question: Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_district

H

What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". UNITED STATES of America, Plaintiff-Appellee, v. Stacy Edward LUCAS, Defendant-Appellant. No. 88-1049. United States Court of Appeals, Ninth Circuit. Submitted April 11, 1989. Decided May 2, 1989. George R. Roylston, Roylston & Royl-ston, Tucson, Ariz., for defendant-appellant. Jan E. Kearney, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee. Before CHOY, WALLACE and WIGGINS, Circuit Judges. The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a). PER CURIAM: Lucas appeals from a conviction of escaping from a federal correctional institution located in Tucson, Arizona, in violation of 18 U.S.C. § 751 (1982). We have jurisdiction pursuant to 28 U.S.C. § 1291 (1982). Lucas claims on appeal that he was denied his sixth amendment right to the effective assistance of counsel due to his pretrial detention in a facility located in Phoenix, approximately 120 miles away from his court-appointed counsel in Tuscon. We review this claim de novo. See Weygandt v. Ducharme, 774 F.2d 1491, 1492-93 (9th Cir.1985). Ordinarily an ineffective assistance of counsel claim requires that the aggrieved party show that his “counsel’s performance was deficient” and that “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). But the “ ‘[a]ctual or constructive denial of the assistance of counsel altogether’ is not subject to the kind of prejudice analysis that is appropriate in determining whether the quality of a lawyer’s performance itself has been constitutionally ineffective.” Perry v. Leeke, - U.S. -, 109 S.Ct. 594, 600, 102 L.Ed.2d 624 (1989) (quoting Strickland, 466 U.S. at 692, 104 S.Ct. at 2067). In these limited circumstances “a showing of prejudice is not an essential component of a violation” of a “criminal defendant’s constitutional right to be represented by counsel.” Id. 109 S.Ct. at 599 (footnote omitted). Here, Lucas argues that the 120 miles between Phoenix and Tucson “effectively” prevented all communication with his counsel, thereby actually or constructively denying him the assistance of counsel altogether. He thus asserts that he was denied his fundamental right to be represented by counsel and need not establish prejudice to prove as much. We disagree. Unlike the circumstances involved in the cases that he cites, e.g., Geders v. United States, 425 U.S. 80, 91, 96 S.Ct. 1330, 1336-37, 47 L.Ed.2d 592 (1976) (violation of sixth amendment to prevent defendant from consulting with his attorney during a 17-hour overnight recess during trial), Lucas’s pretrial detention in a facility located two hours distant from the place of his trial did not prevent all communications between client and counsel. Lucas and his counsel were free to communicate by telephone; alternatively, Lucas’s counsel could easily endure the inconvenience of a two-hour drive to Phoenix. And in any event, Lucas communicated freely with his counsel following a day of pretrial motions held in Tucson. We thus believe that his detention in the facility located in Phoenix rather than the one in Tucson did not amount to the actual or constructive denial of the assistance of counsel for which a showing of prejudice is not required. See Perry, 109 S.Ct. at 600. Lucas has not seriously attempted to make a showing of prejudice, nor can he. Counsel was appointed for him on October 27, 1987. Trial was not held until December 15, 1987, so there was ample time for communication between Lucas and his counsel. Further, Lucas does not allege what purpose additional consultation beyond the opportunity in Tucson would have served. See Chavez v. Pulley, 623 F.Supp. 672, 685 (E.D.Cal.1985) (“brevity of consultation time between a defendant and his counsel alone cannot support a claim of ineffective assistance of counsel,” especially where he “fails to allege what purpose further consultation with his attorney would have served and fails to demonstrate how further consultation with his attorney would have produced a different result”); accord Murray v. Maggio, 736 F.2d 279, 282-83 (5th Cir.1984). Even if additional consultation was needed, Lucas has not shown how the distance between Phoenix and Tucson prevented it or how it impaired the quality of his representation. Cf. Caldwell v. United States, 651 F.2d 429, 433 n. 5 (6th Cir.) (“counsel for petitioner never explains how the geographic distance between the petitioner and his counsel either impaired the quality of representation below or resulted in an unfair trial”), cert. denied, 454 U.S. 904, 102 S.Ct. 412, 70 L.Ed.2d 222 (1981); United States v. Kirk, 534 F.2d 1262, 1281 (8th Cir.1976) (confining defendants during trial did not deny them the effective assistance of counsel because “they cite no specific instances of prejudice except for the inconvenience caused their attorneys of traveling thirty or so miles to communicate with their client”), cert. denied, 430 U.S. 906, 97 S.Ct. 1174, 51 L.Ed.2d 581 (1978); Rees v. Peyton, 341 F.2d 859, 864 (4th Cir.1965) (although confined during trial at a penitentiary instead of a much closer county jail, defendant was not prejudiced because he “was made readily and conveniently accessible to his counsel at the trial courthouse, and elsewhere, at all reasonable times”). Lucas simply has not met his burden of proving that his detention in Phoenix prejudiced his defense. In sum, Lucas was not actually or constructively denied all access to counsel, nor was he prejudiced by the burden placed on his counsel in traveling from Tucson to Phoenix for additional consultation. Accordingly, his conviction is AFFIRMED. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:

songer_rtcouns

A

What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant's right to counsel was violated (for some reason other than inadequate counsel)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". UNITED STATES of America, Plaintiff-Appellee, v. Austin Louis SMITH et al., Defendants-Appellants. Nos. 71-1743 to 71-1746. United States Court of Appeals, Tenth Circuit. July 26, 1972. W. Allen Spurgeon, Asst. U. S. Atty. (James L. Treece, U. S. Atty., with him on brief), for plaintiff-appellee. Richard B. Bauer, Littleton, Colo., for defendants-appellants. Before BREITENSTEIN, HILL, and DOYLE, Circuit Judges. BREITENSTEIN, Circuit Judge. A jury found the four defendants-appellants, inmates at the Federal Youth Center, Englewood, Colorado, guilty of sexually assaulting another inmate at the Youth Center in violation of 18 U.S. C. § 13 and 1963 Colo.Rev.Stat. § 40-2-31. They were sentenced to indeterminate terms under the Federal Youth Corrections Act, 18 U.S.C. § 5010(b). The assault occurred on January 23, 1971, and on the same day the four defendants were placed in segregated confinement. No preliminary hearing was held on the criminal charge. An indictment was returned on July 9, 1971, and defendants were arraigned shortly thereafter. The indictment was technically defective and was superseded by an August 25 indictment. The first indictment was thereafter dismissed. Trial was held September 7-8. Defendants were placed in segregated confinement for disciplinary reasons, for the protection of the victim, because of their previous harassment of other inmates, and to prevent the possibility of escape. Actions of prison officials in disciplining inmates are not subject to judicial review in the absence of arbitrariness or caprice. Graham v. Willingham, 10 Cir., 384 F.2d 367, 368. The actions taken here were prudent rather than arbitrary or capricious, and were violative of no Eighth Amendment rights. Ibid. The imposition by the court of indeterminate sentences under 18 U.S.C. § 5010(b) did not, when coupled with the segregated confinement, constitute double punishment for the same offense. The segregated confinement was for institutional reasons and not for punishment of the criminal offense which defendants had committed. Defendants say that segregated confinement was an arrest and that they were not promptly taken before a magistrate as required by Rule 5, F.R. Crim.P. We do not agree. When they were placed in segregated confinement, they were already in custody for unrelated convictions which are not now under attack. Their liberty was validly restrained and they were subject to all the impediments of imprisonment. Seizure, confinement, and the interference with personal liberty attendant thereon had occurred. Segregated confinement for institutional reasons is not an arrest. Cf. United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468, and Moran v. United States, 10 Cir., 404 F.2d 663, 666. Rule 5 does not apply when the person affected is in custody pursuant to an unrelated valid conviction. United States v. Reid, 7 Cir., 437 F.2d 1166, 1167. The next contention is that defendants were denied speedy trial and due process because of delay between offense and trial. Pre-indictment delay was five and one-half months and post-indictment delay was two months. Defendants interposed numerous motions to the indictment and made no request for speedy trial. No claim is made that the government delayed to attain tactical advantage. The constitutional arguments hinge on whether the delay substantially prejudiced defendants. United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468; Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, and United States v. Merrick, 10 Cir., 464 F.2d 1087. Defendants point to no exculpatory evidence which was lost to them. They had full power of subpoena. Three inmates of the Youth Center testified in their behalf. In our opinion they had a fair trial and were deprived of no constitutional rights. Defendants, who are Indians, argue that they were denied equal protection because there were no Indians present when they were interrogated by government agents, because there were no Indians in administrative positions at the Youth Center, and because there were no Indians on the trial jury. Equal protection condemns arbitrary and invidious discrimination; it does not require exact equality. Andrus v. Turner, 10 Cir., 421 F.2d 290, 292. There is no apparent relation between the contentions and the validity of the convictions. No claim is made that the statements to the agents were involuntary. There is no showing that Indians were purposefully denied participation as jurors because of race. See Swain v. Alabama, 380 U.S. 202, 203-204, 85 S.Ct. 824, 13 L.Ed.2d 759. The record is devoid of anything which shows arbitrary or invidious discrimination. The next arguments go to the appointment and competency of counsel. Defendants say that the court should have appointed an Indian lawyer. Selection of counsel “rests in the sound discretion of the court.” Tibbett v. Hand, 10 Cir., 294 F.2d 68, 73. An accused does not have the right to have a member of his own race appointed to represent him. Achtien v. Dowd, 7 Cir., 117 F.2d 989, 992. Defendants also say that the court erred in appointing only one lawyer for their defense. Joint representation becomes improper only in those cases where prejudice results so as to deny a defendant the effective assistance of counsel. Fryar v. United States, 10 Cir., 404 F.2d 1071, 1073, cert. denied 395 U.S. 964, 89 S.Ct. 2109, 23 L.Ed.2d 751. Before trial there was no suggestion that more than one lawyer would be needed. The record does not indicate that any defendant was prejudiced by joint representation. The court found that defendants had competent and efficient representation and we agree. The final claim is the denial of interpreters. The court held a thorough hearing on this point and found interpreters were unnecessary. The record convinces us that defendants understood and comprehended the proceedings. They did not need the help of interpreters. Affirmed as to each defendant. Question: Did the court rule that the defendant's right to counsel was violated (for some reason other than inadequate counsel)? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:

sc_petitionerstate

37

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. COMMITTEE FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY et al. v. REGAN, COMPTROLLER OF NEW YORK, et al. No. 78-1369. Argued November 27, 1979 Decided February 20, 1980 White, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Powell, and RehNQUist, JJ., joined. BlackmUN, J., filed a dissenting opinion, in which BrenNAN and Marshall, JJ., joined, post, p. 662. SteveNS, J., filed a dissenting opinion, post, p. 671. Leo Pfeffer argued the cause and filed a brief for appellants. Shirley Adelson Siegel, Solicitor General of New York, argued the cause for appellees Regan et al. With her on the brief were Robert Abrams, Attorney General, and John Q. Driscoll, Assistant Attorney General. Richard E. Nolan argued the cause for appellee schools. With him on the brief was Thomas J. Aquilino, Jr. Nathan Lewin and Dennis Rapps filed a brief for appellee Yeshivah Rambam. Me. Justice White delivered the opinion of the Court. The issue in this case is the constitutionality under the First and Fourteenth Amendments of the United States Constitution of a New York statute authorizing the use of public funds to reimburse church-sponsored and secular nonpublic schools for performing various testing and reporting services mandated by state law. The District Court sustained the statute. Committee for Public Education v. Levitt, 461 F. Supp. 1123 (1978). We noted probable jurisdiction, 442 U. S. 928 (1979), and now affirm the District Court’s judgment. I In 1970, the New York Legislature appropriated public funds to reimburse both church-sponsored and secular nonpublic schools for performing various services mandated by the State. The most expensive of these services was the “administration, grading and the compiling and reporting of the results of tests and examinations.” 1970 N. Y. Laws, ch. 138, § 2. Covered tests included both state-prepared examinations and the more common and traditional teacher-prepared tests. Although the legislature stipulated that “[njothing contained in this act shall be construed to authorize the making of any payment under this act for religious worship or instruction,” § 8, the statute did not provide for any state audit of school financial records that would ensure that public funds were used only for secular purposes. In Levitt v. Committee for Public Education, 413 U. S. 472 (1973) (Levitt I), the Court struck down this enactment as violative of the Establishment Clause. The majority focused its concern on the statute’s reimbursement of funds spent by schools on traditional teacher-prepared tests. The Court was troubled that, “despite the obviously integral role of such testing in the total teaching process, no attempt is made under the statute, and no means are available, to assure that internally prepared tests are free of religious instruction.” Id., at 480. It was not assumed that nonpublic school teachers would attempt in bad faith to evade constitutional requirements. Rather, the Court simply observed that “the potential for conflict ‘inheres in the situation,’ and because of that the State is constitutionally compelled to assure that the state-supported activity is not being used for religious indoctrination.” Ibid., quoting Lemon v. Kurtzman, 403 U. S. 602, 617 (1971). Because the State failed to provide the required assurance, the challenged statute was deemed to constitute an impermissible aid to religion. The Court distinguished its earlier holdings in Everson v. Board of Education, 330 U. S. 1 (1947), and Board of Education v. Allen, 392 U. S. 236 (1968), on grounds that the state aid upheld in those cases, in the form of bus rides and loaned secular textbooks for sectarian schoolchildren, was “of a substantially different character” from that presented in Levitt I. Levitt I, supra, at 481. Teacher-prepared tests were deemed by the Court to be an integral part of the teaching process. But obviously so are textbooks an integral part of the teaching process. The crucial feature that distinguished tests, according to the Court, was that, “ ‘[i]n terms of potential for involving some aspect of faith or morals in secular subjects, a textbook’s content is ascertainable, but a teacher’s handling of a subject is not.’ ” 413 U. S., at 481, quoting Lemon v. Kurtzman, supra, at 617. Thus, the inherent teacher discretion in devising, presenting, and grading traditional tests, together with the failure of the legislature to provide for a method of auditing to ensure that public funds would be spent exclusively on secular services, disabled the enactment from withstanding constitutional scrutiny. Almost immediately the New York Legislature attempted to eliminate these defects from its statutory scheme. A new statute was enacted in 1974, and it directed New York’s Commissioner of Education to apportion and to pay to nonpublic schools the actual costs incurred as a result of compliance with certain state-mandated requirements, including “the requirements of the state’s pupil evaluation program, the basic educational data system, regents examinations, the statewide evaluation plan, the uniform procedure for pupil attendance reporting, and other similar state prepared examinations and reporting procedures.” 1974 N. Y. Laws, ch. 507, § 3. Of signal interest and importance in light of Levitt I, the new scheme does not reimburse nonpublic schools for the preparation, administration, or grading of teacher-prepared tests. Further, the 1974 statute, unlike the 1970 version struck down in Levitt I, provides a means by which payments of state funds are audited, thus ensuring that only the actual costs incurred in providing the covered secular services are reimbursed out of state funds. § 7. Although the new statutory scheme was tailored to comport with the reasoning in Levitt I, the District Court invalidated the enactment with respect to both the tests and the reporting procedure. Committee for Public Education v. Levitt, 414 F. Supp. 1174 (1976) (Levitt II). The District Court understood the decision in Meek v. Pittenger, 421 U. S. 349 (1975), to require this result. In Meek, decided after Levitt I, this Court held unconstitutional two Pennsylvania statutes insofar as they provided auxiliary services and instructional material and equipment apart from textbooks to nonpublic schools in the State, most of which were sectarian. The Court ruled that in “religion-pervasive” institutions, secular and religious education are so “inextricably intertwined” that “[s]ubstan-tial aid to the education function of such schools . . . necessarily results in aid to the sectarian school enterprise as a whole” and hence amounts to a forbidden establishment of religion. 421 U. S., at 366. Levitt II was appealed to this Court. We vacated the District Court’s judgment and remanded the case in light of our decision in Wolman v. Walter, 433 U. S. 229 (1977). On remand the District Court ruled that under Wolman "state aid may be extended to [a sectarian] school’s educational activities if it can be shown with a high degree of certainty that the aid will only have secular value of legitimate interest to the State and does not present any appreciable risk of being used to aid transmission of religious views.” 461 F. Supp., at 1127. Applying this "more flexible concept,” ibid., the District Court concluded that New York’s statutory scheme of reimbursement did not violate the Establishment Clause. Our jurisdiction to review the District Court’s judgment lies under 28 U. S. C. § 1253. II Under the precedents of this Court a legislative enactment does not contravene the Establishment Clause if it has a secular legislative purpose, if its principal or primary effect neither advances nor inhibits religion, and if it does not foster an excessive government entanglement with religion. See Roemer v. Maryland Public Works Bd., 426 U. S. 736, 748 (1976) ; Committee for Public Education v. Nyquist, 413 U. S. 756, 772-773 (1973); Lemon v. Kurtzman, 403 U. S., at 612-613. In Wolman v. Walter, supra, this Court reviewed and sustained in relevant part an Ohio statutory scheme that authorized, inter alia, the expenditure of state funds “[t]o supply for use by pupils attending nonpublic schools within the district such standardized tests and scoring services as are in use in the public schools of the state.” Ohio Rev. Code Ann. § 3317.06 (J) (Supp. 1976). We held that this provision, which was aimed at providing the young with an adequate secular education, reflected a secular state purpose. As the opinion of Mr. Justice Blackmun stated, “[t]he State may require that schools that are utilized to fulfill the State’s compulsory-education requirement meet certain standards of instruction, . . . and may examine both teachers and pupils to ensure that the State’s legitimate interest is being fulfilled.” Wolman v. Walter, supra, at 240. See Levitt I, 413 U. S., at 479-480, n. 7; Lemon v. Kurtzman, supra, at 614. Mr. Justice Blackmun further explained that under the Ohio provision the nonpublic school did not control the content of the test or its result. This “serves to prevent the use of the test as a part of religious teaching, and thus avoids that kind of direct aid to religion found present in Levitt [I],” Wolman v. Walter, 433 U. S., at 240. The provision of testing services hence did not have the primary effect of aiding religion. Ibid. It was also decided that “the inability of the school to control the test eliminates the need for the supervision that gives rise to excessive entanglement.” Id., at 240-241. We thus concluded that the Ohio statute, insofar as it concerned examinations, passed our Establishment Clause tests. Ill We agree with the District Court that Wolman v. Walter controls this case. Although the Ohio statute under review in Wolman and the New York statute before us here are not identical, the differences are not of constitutional dimension. Addressing first the testing provisions, we note that here, as in Wolman, there is clearly a secular purpose behind the legislative enactment: “[T’]o provide educational opportunity of a quality which will prepare [New York] citizens for the challenges of American life in the last decades of the twentieth century.” 1974 N. Y. Laws, ch. 507, § 1. Also like the Ohio statute, the New York plan calls for tests that are prepared by the State and administered on the premises by nonpublic school personnel. The nonpublic school thus has no control whatsoever over the content of the tests. The Ohio tests, however, were graded by the State; here there are three types of tests involved, one graded by the State and the other two by nonpublic school personnel, with the costs of the grading service, as well as the cost of administering all three tests, being reimbursed by the State. In view of the nature of the tests, the District Court found that the grading of the examinations by nonpublic school employees afforded no control to the school over the outcome of any of the tests. The District Court explained that the state-prepared tests are primarily of three types: pupil evaluation program (PEP) tests, comprehensive (“end-of-the-course”) achievement tests, and Regents Scholarship and College Qualifications Tests (RSCQT). 461 F. Supp., at 1125. Each of the tests addresses a secular academic subject; none deals with religious subject matter. The RSCQT examinations are graded by State Education Department personnel, and the District Court correctly concluded that “the risk of [RSCQT examinations] being used for religious purposes through grading is non-existent.” Id., at 1128. The PEP tests, administered universally in grades 3 and 6 and optionally in grade 9, are graded by nonpublic school employees, but they “consist entirely of objective, multiple-choice questions, which can be graded by machine and, even if graded by hand, afford the schools no more control over the results than if the tests were graded by the State.” Ibid. The comprehensive tests, based on state courses of study for use in grades 9 through 12, are also graded on the premises by school employees, but “consist largely or entirely of objective questions with multiple-choice answers.” Id., at 1125. Even though some of the comprehensive tests may include an essay question or two, ibid., the District Court found that the chance that grading the answers to state-drafted questions in secular subjects could or would be used to gauge a student’s grasp of religious ideas was “minimal,” especially in light of the “complete” state procedures designed to guard against serious inconsistencies in grading and any misuse of essay questions. Id., at 1128—1129. These procedures include the submission of completed and graded comprehensive tests to the State Department of Education for review off the school premises. We see no reason to differ with the factual or legal characterization of the testing procedure arrived at by the District Court. As in Wolman v. Walter, 433 U. S., at 240, “[t]he nonpublic school does not control the content of the test or its result”; and here, as in Wolman, this factor “serves to prevent the use of the test as a part of religious teaching,” ibid., thus avoiding the kind of direct aid forbidden by the Court’s prior cases. The District Court was correct in concluding that there was no substantial risk that the examinations could be used for religious educational purposes. The District Court was also correct in its characterization of the recordkeeping and reporting services for which the State reimburses the nonpublic school. Under the New York law, “[e]ach year, private schools must submit to the State a Basic Educational Data System (BEDS) report. This report contains information regarding the student body, faculty, support staff, physical facilities, and curriculum of each school. Schools are also required to submit annually a report showing the attendance record of each minor who is a student at the school.” 461 F. Supp., at 1126. Although recordkeeping is related to the educational program, the District Court characterized it and the reporting function as “ministerial [and] lacking ideological content or use.” Id., at 1130. These tasks are not part of the teaching process and cannot “be used to foster an ideological outlook.” Ibid. Reimbursement for the costs of so complying with state law, therefore, has primarily a secular, rather than a religious, purpose and effect. IV The New York statute, unlike the Ohio statute at issue in Wolman, provides for direct cash reimbursement to the nonpublic school for administering the state-prescribed examinations and for grading two of them. We agree with the District Court that such reimbursement does not invalidate the New York statute. If the State furnished state-prepared tests, thereby relieving the nonpublic schools of the expense of preparing their own examinations, but left the grading of the tests to the schools, and if the grading procedures could be used to further the religious mission of the school, serious Establishment Clause problems would be posed under the Court’s cases, for by furnishing the tests it might be concluded that the State was directly aiding religious education. But as we have already concluded, grading the secular tests furnished by the State in this case is a function that has a secular purpose and primarily a secular effect. This conclusion is not changed simply because the State pays the school for performing the grading function. As the District Court observed, “[pjutting aside the question of whether direct financial aid can be administered without excessive entanglement by the State in the affairs of a sectarian institution, there does not appear to be any reason why payments to sectarian schools to cover the cost of specified activities would have the impermissible effect of advancing religion if the same activities performed by sectarian school personnel without reimbursement but with State-furnished materials have no such effect.” 461 F. Supp., at 1129. A contrary view would insist on drawing a constitutional distinction between paying the nonpublic school to do the grading and paying state employees or some independent service to perform that task, even though the grading function is the same regardless of who performs it and would not have the primary effect of aiding religion whether or not performed by nonpublic school personnel. In either event, the nonpublic school is being relieved of the cost of grading state-required, state-furnished examinations. We decline to embrace a formalistic dichotomy that bears so little relationship either to common sense or to the realities of school finance. None of our cases requires us to invalidate these reimbursements simply because they involve payments in cash. The Court “has not accepted the recurrent argument that all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends.” Hunt v. McNair, 413 U. S. 734, 743 (1973). Because the recordkeeping and reporting functions also have neither a religious purpose nor a primarily religious effect, we reach the same results with respect to the reimbursements for these services. Of course, under the relevant cases the outcome would likely be different were there no effective means for insuring that the cash reimbursements would cover only secular services. See Levitt I, 413 U. S., at 480; Committee for Public Education v. Nyquist, 413 U. S., at 774; Lemon v. Kurtzman, 403 U. S., at 619-622. But here, as we shall see, the New York law provides ample safeguards against excessive or misdirected reimbursement. Y The District Court recognized that “[w]here a state is required in determining what aid, if any, may be extended to a sectarian school, to monitor the day-to-day activities of the teaching staff, to engage in onerous, direct oversight, or to make on-site judgments from time to time as to whether different school activities are religious in character, the risk of entanglement is too great to permit governmental involvement.” 461 F. Supp., at 1130. After examining the New York statute and its operation, however, the District Court concluded that “[t]he activities subsidized under the Statute here at issue ... do not pose any substantial risk of such entanglement.” Ibid, (footnote omitted). The District Court described the process of reimbursement: “Schools which seek reimbursement must ‘maintain a separate account or system of accounts for the expenses incurred in rendering’ the reimbursable services, and they must submit to the N. Y. State Commissioner of Education an application for reimbursement with additional reports and documents prescribed by the Commissioner. . . . Reimbursable costs include proportionate shares of the teachers’ salaries and fringe benefits attributable to administration of the examinations and reporting of State-required data on pupil attendance and performance, plus the cost of supplies and other contractual expenditures such as data processing services. Applications for reimbursement cannot be approved until the Commissioner audits vouchers or other documents submitted by the schools to substantiate their claims. . . . The Statute further provides that the State Department of Audit .and Control shall from time to time inspect the accounts of recipient schools in order to verify the cost to the schools of rendering the reimbursable services. If the audit reveals that a school has received an amount in excess of its actual costs, the excess must be returned to the State immediately. . . Id., at 1126, quoting 1974 N. Y. Laws, ch. 507. We agree with the District Court that “[t]he services for which the private schools would be reimbursed are discrete and clearly identifiable.” 461 F. Supp., at 1131. The reimbursement process, furthermore, is straightforward and susceptible to the routinization that characterizes most reimbursement schemes. On its face, therefore, the New York plan suggests no excessive entanglement, and we are not prepared to read into the plan as an inevitability the bad faith upon which any future excessive entanglement would be predicated. VI It is urged that the District Court judgment is unsupportable under Meek v. Pittenger, 421 U. S. 349 (1975), which is said to have held that any aid to even secular educational functions of a sectarian school is forbidden, or more broadly still, that any aid to a sectarian school is suspect since its religious teaching is so pervasively intermixed with each and every one of its activities. Brief for Appellants 9-11. The difficulty with this position is that a majority of the Court, including the author of Meek v. Pittenger, upheld in Wolman a state statute under which the State, by preparing and grading tests in secular subjects, relieved sectarian schools of the cost of these functions, functions that they otherwise would have had to perform themselves and that were intimately connected with the educational processes. Yet the Wolman opinion at no point suggested that this holding was inconsistent with the decision in Meek. Unless the majority in Wolman was silently disavowing Meek, in whole or in part, that case was simply not understood by this Court to stand for the broad proposition urged by appellants and espoused by the District Court in Levitt II. That Meek was understood more narrowly was suggested by Me. Justice Powell in his separate opinion in Wolman: “I am not persuaded,” he said, “nor did Meek hold, that all loans of secular instructional material and equipment” inescapably have the effect of direct advancement of religion. 433 U. S., at 263. And obviously the testing services furnished by the State in Wolman were approved on the premise that those services did not and could not have the primary effect of advancing the sectarian aims of the nonpublic schools. With these indicators before it, the District Court properly put the two cases together and sustained the reimbursements involved here because it had been shown with sufficient clarity that they would serve the State’s legitimate secular ends without any appreciable risk of being used to transmit or teach religious views. This is not to say that this case, any more than past cases, will furnish a litmus-paper test to distinguish permissible from impermissible aid to religiously oriented schools. But Establishment Clause cases are not easy; they stir deep feelings; and we are divided among ourselves, perhaps reflecting the different views on this subject of the people of this country. What is certain is that our decisions have tended to avoid categorical imperatives and absolutist approaches at either end of the range of possible outcomes. This course sacrifices clarity and predictability for flexibility, but this promises to be the case until the continuing interaction between the courts and the States — the former charged with interpreting and upholding the Constitution and the latter seeking to provide education for their youth — produces a single, more encompassing construction of the Establishment Clause. The judgment of the District Court is Affirmed. The First Amendment provides that “Congress shall make no law respecting an establishment of religion. . . This Court has repeatedly held the Establishment Clause applicable to the States through the Fourteenth Amendment. E. g., Meek v. Pittenger, 421 U. S. 349, 351 (1975); Cantwell v. Connecticut, 310 U. S. 296, 303 (1940). The majority in Levitt I concluded: “We hold that the lump-sum payments under Chapter 138 violate the Establishment Clause. Since Chapter 138 provides only for a single per-pupil allotment for a variety of specified services, some secular and some potentially religious, neither this Court nor the District Court can properly reduce that allotment to an amount corresponding to the actual costs incurred in performing reimbursable secular services. That is a legislative, not a judicial, function.” 413 U. S., at 482. Chapter 507, 1974 N. Y. Laws, as amended by ch. 508, note following N. Y. Educ. Law §3601 (McKinney Supp. 1971-1979), provides in relevant part: “Section 1. Legislative findings. The legislature hereby finds and declares that: “The state has the responsibility to provide educational opportunity of a quality which will prepare its citizens for the challenges of American life in the last decades of the twentieth century. “To fulfill this responsibility, the state has the duty and authority to evaluate, through a system of uniform state testing and reporting procedures, the quality and effectiveness of instruction to assure that those who are attending instruction, as required by law, are being adequately educated within their individual capabilities. “In public schools these fundamental objectives are accomplished in part through state financial assistance to local school districts. “More than seven hundred thousand pupils in the state comply with the compulsory education law by attending nonpublic schools. It is a matter of state duty and concern that such nonpublic schools be reimbursed for the actual costs which they incur in providing services to the state which they are required by law to render in connection with the state’s responsibility for reporting, testing and evaluating. “§ 3. Apportionment. The commissioner shall annually apportion to each qualifying school, for school years beginning on and after July first, nineteen hundred seventy-four, an amount equal to the actual cost incurred by each such school during the preceding school year for providing services required by law to be rendered to the state in compliance with the requirements of the state’s pupil evaluation program, the basic educational data system, regents examinations, the statewide evaluation plan, the uniform procedure for pupil attendance reporting, and other similar state prepared examinations and reporting procedures. “§7. Audit. No application for financial assistance under this act shall be approved except upon audit of vouchers, or other documents by the commissioner as are necessary to insure that such payment is lawful and proper. “The state department of audit and control shall from time to time examine any and all necessary accounts and records of a qualifying school to which an apportionment has been made pursuant to this act for the. purpose of determining the cost to such school of rendering the services referred to in section three of this act. If after such audit it is determined that any qualifying school has received funds in excess of the actual cost of providing the services enumerated in section three of this act, such school shall immediately reimburse the state in such excess amount. “§9. In enacting this chapter it is the intention of the legislature that if section seven or any other provision of this act or any rules or regulations promulgated thereunder shall be held by any court to be invalid in whole or in part or inapplicable to any person or situation, all remaining provisions or parts thereof or remaining rules and regulations or parts thereof not so invalidated shall nevertheless remain fully effective as if the invalidated portion had not been enacted or promulgated, and the application of any such invalidated portion to other persons not similarly situated or other situations shall not be affected thereby.” PEP tests are “standardized reading and mathematics achievement tests developed and published by the Educational Department and based on New York State courses of study.” App. 28a. Comprehensive tests correspond to the following subject areas: biology; bookkeeping and accounting II; business law; business mathematics; chemistry; earth science; English; French; German; Hebrew; Italian; Latin; 9th-year mathematics; 10th-year mathematics; llth-year mathematics; physics; shorthand II and transcription; social studies; and Spanish. 461 F. Supp., at 1125, n. 3. The RSCQT tests are divided into two parts. Part 1 is a “test of general scholastic aptitude, containing questions intended to measure ability to think clearly and accurately.” App. 38a. Part 2 is “a test of subject matter achievement directly related to courses studied in high school.” Ibid. Clearly, the tests at issue are secular in character. The recordkeeping function, according to the parties’ stipulation of facts, involves “collection of data requested from homeroom teachers, pupil personnel services staff, attendance secretaries and administrators; compilation and correlation of data; and filling out and mailing of report.” App. 37a. The attendance-taking function is described in similar ministerial terms. Id., at 37a. Of interest is the District Court’s finding that “[t]he lion’s share of the reimbursements to private schools under the Statute would be for attendance-reporting. According to applications prepared by intervenor-defendant private schools for the 1973-1974 school year, between 85% and 95% of the total reimbursement is accounted for by the costs attributable to attendance-taking, of which all but a negligible portion represents compensation to personnel for this service.” 461 F. Supp., at 1126. As Mr. Justice Blackmun wrote in Roemer v. Maryland Public Works Bd., 426 U. S. 736, 747 (1976) (footnote omitted): “The Court has not been blind to the fact that in aiding a religious institution to perform a secular task, the State frees the institution's resources to be put to^ sectarian ends. If this were impermissible, however, a church could not be protected by the police and fire departments, or have its public sidewalk kept in repair. The Court never has held that religious activities must be discriminated against in this way.” Cf. New York v. Cathedral Academy, 434 U. S. 125, 134 (1977) (“[T]his Court has never held that freeing private funds for sectarian uses invalidates otherwise secular aid to religious institutions . . .”). As the District Court wrote: “The services for which the private schools would be reimbursed are discrete and clearly identifiable. A teacher’s taking of attendance, administration of examinations, and recordkeeping can hardly be confused with his or her other activities. Although there might be a possibility of fraud or mistake in the records submitted by private schools of the teachers’ time spent on such activities, the careful auditing procedures anticipated by § 7 of the Statute should provide an adequate safeguard against inflated claims. In addition, since the services subsidized under the Statute are highly routinized, costs of the services for a given size of class should vary little from school to school, thus enabling the State to check claims filed by private schools against records maintained by hundreds of public schools under State supervision.” 461 F. Supp., at 1131 (footnote omitted). We find no merit whatever in appellants’ argument, which was not made below, that the extent of entanglement here is sufficient to raise the danger of future political divisiveness along religious lines. Brief for Appellants 16-18. Wolman was decided without reference to any such potential discord. Moreover, the New York plan reimburses “actual costs.” Thus it cannot be maintained that the New York system will provoke religious battles over legislative appropriations, an eventuality that could conceivably occur under a system of state aid involving direct appropriations. Cf. Committee for Public Education v. Nyquist, 413 U. S. 756, 794-798 (1973). Question: What state is associated with the petitioner? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:

songer_civproc1

52

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. The MAYTAG COMPANY, a corporation, Plaintiff-Appellant, v. The MURRAY CORPORATION OF AMERICA, a corporation, Defendant-Appellee. No. 14728. United States Court of Appeals Sixth Circuit. June 5, 1963. Patrick H. Hume, Chicago, 111. (Patrick H. Hume, Clyde F. Willian, Byron, Hume, Groen & Clement, Chicago, 111., on the brief), for appellant. Arthur W. Dickey, Detroit, Mich. (Arthur W. Dickey, Robert L. Boynton, Harness, Dickey & Pierce, Detroit, Mich., on the brief), for appellee. Before CECIL, Chief Judge, WEICK, Circuit Judge, and TAYLOR, District Judge. CECIL, Chief Judge. The plaintiff-appellant, The Maytag Company, brought this action in the United States District Court for the Eastern District of Michigan, Southern Division, against the defendant-appellee, The Murray Corporation of America, for infringement of a patent. The parties will be referred to as plaintiff and defendant, respectively. The patent in question, No. 2,717,456, was issued to Thomas R. Smith .and assigned by him to the plaintiff. The defendant denied infringement and charged that the patent was invalid. The District Judge found the patent to be valid, except for claim 15 which he held to be too broad and an over statement of the invention. He found further that there was no infringement and the complaint was dismissed. The plaintiff appeals from the findings of the court that claim 15 was invalid and that there was no infringement. The defendant urges this Court to sustain the judgment of the District Court either on the ground of invalidity or non-infringement. The trial judge found that claims 2 and 3 of the patent were not infringed by virtue of being limited to the specific type of heating means shown in the patent. The plaintiff did not appeal from the findings of the court on these two claims. The defendant did not file a cross-appeal and the plaintiff claims that the question of invalidity can not now be raised on this appeal. We hold that this question is properly before us. Bede v. Baker & English, Inc., 274 F.2d 833, 835, C.A. 6; Stelos Co. v. Hosiery Motor-Mend Corp., 295 U.S. 237, 239, 55 S.Ct. 746, 79 L.Ed. 1414; Merco Nordstrom Valve Co. v. W. M. Acker Organization, Inc., 131 F.2d 277, C.A. 6; Guiberson Corp. v. Equipment Engineers, Inc., 252 F.2d 431, 432, C.A. 5; Graham v. Cockshutt Farm Equipment, Inc., 256 F.2d 358, 359, C.A. 5. The paramount question in this case, as stated by counsel for plaintiff, is infringement. While an affirmance of the District Court on the ground of non-infringement would dispose of the appeal, the Supreme Court has said that due to the greater public importance of the validity of a patent it is the better practice to inquire fully into that issue. Sinclair & Carroll Co., Inc. v. Interchemical Corporation, 325 U.S. 327, 330, 65 S.Ct. 1143, 89 L.Ed. 1644. We will consider first the question of validity. The subject of the plaintiff’s patent and the accused devices of the defendant all involve clothes driers of the type commonly used in the home. The defendant has made, sold and used three models of its drier, which are identified as CDF, CDH and CDK. The parties agree that all three models are essentially the same in respect to the particulars material to this action. They will be referred to as the “accused device.” The machines of both parties operate as “closed” systems and we will limit our discussion to that type of drier, although there is a type that operates as an “open” system. Briefly stated, the essential feature of the closed system is that the atmosphere within the drier is enclosed from the outside atmosphere and heated to evaporate moisture which is removed by a condenser disposed internally of the system. The open system draws air from outside the machine itself, which is sometimes referred to as ambient atmosphere. This outside air is heated, mingled with the clothing to be dried and then expelled to the outside of the washer. The plaintiff’s patent is known as a combination patent and is admittedly composed of old elements. The crucial elements of this combination are: 1. A substantially imperforate casing defining a chamber; 2. A tumbler or drum to agitate the clothing; 3. Walls of such casing which openly face the tumbler or drum; 4. Means for heating the chamber; 5. A water film condenser. The requisites for the validity of a patent are novelty, utility and invention. Aluminum Company of America v. Sperry Products, Inc., 285 F.2d 911, 917, C.A. 6, cert. denied, 368 U.S. 890, 82 S.Ct. 139, 7 L.Ed.2d 87. “The combination of old parts or elements, in order to constitute a patentable invention, must perform or produce a new and different function or operation than that theretofore performed or produced by them; it is not sufficient that the combination be superior to what went before in producing a more convenient and more economical mechanism.” Bede v. Baker & English, Inc., supra, 274 F.2d at 839, citing General Motors Corp. v. Estate Stove Co., 203 F.2d 912, 917, C.A. 6; Sec. 103, Title 35, U.S.C. The defendant claims that the patent in suit is lacking in invention by reason of prior art. The test of invention where old elements are used in the alleged invention is whether those elements are used in a manner different from the previously known use in such a way that the alleged invention would not have been obvious to one skilled in the art. Allied Wheel Products v. Rude, 206 F.2d 752, 760, C.A. 6; Aluminum Company of America v. Sperry Products, Inc., supra; Ohmer Fare Register Co. v. Ohmer, 238 F. 182, 186-187, C.A. 6; Wintermute v. Hermetic Seal Corporation, 279 F.2d 60, 62, C.A. 3. Invention under this test is a question of fact. Sterling Aluminum Products, Inc. v. Bohn Aluminum & Brass Corp., 298 F.2d 538, 539-540, C.A. 6; Wickman v. Vinco Corporation, 288 F.2d 310, 312, C.A. 6; Cold Metal Products Company v. E. W. Bliss Company, 285 F.2d 244, 248, C.A. 6, cert. denied, 366 U.S. 911, 81 S.Ct. 1085, 6 L.Ed.2d 235; Aluminum Company of America v. Sperry Products, Inc., supra; Stubnitz-Greene Spring Corp. v. Fort Pitt Bedding Co., 110 F.2d 192, 196, C.A. 6; Ohmer Fare Register Co. v. Ohmer, supra, 238 F. at 187; Schafer v. Watson, 109 U.S.App.D.C. 360, 288 F.2d 144, 145, C.A.D.C.; Rota-Carb Corporation v. Frye Manufacturing Company, 313 F.2d 443, 444, C.A. 8. The patent in suit, as issued, sets forth seven objects of the invention as claimed by Mr. Thomas R. Smith, its inventor. Summarizing these objects, briefly, it may be stated that the inventor’s contribution to the prior art of “closed system” laundry driers is: (1) The condensation of moisture and the elimination of lint by the utilization of a water film condenser while relying completely on vapor pressure to circulate the air by “random flow,” and (2) thereby, the elimination of the need for baffles, protective shields and channeling ducts which increased the cost of the drier and accumulated lint under unsanitary and dangerous conditions. Consideration of the status of the prior art of closed laundry driers and its relation to the patent in suit raises a close question of fact as to whether Mr. Smith’s device achieved invention. The trial judge carefully considered all of the evidence with reference to prior art, particularly the Bradley patent, the claims of the parties and the law applicable to the facts. His opinion is reported at 193 F.Supp. 535. The trial judge found that the specification of the patent in suit disclosed the invention contended for by plaintiff. He further found “In plaintiff’s patent a new and surprisingly simple method of operation is disclosed for the first time. Although all the structural elements are old, in the peculiar combination disclosed by the patent they cooperate in a new and different manner, bringing about a surprising result which the prior art inventors were unable to conceive or anticipate.” Id. 193 F.Supp. at 541. The above quoted finding is a factual finding and describes invention. We cannot say that this finding of fact is clearly erroneous. Findings of fact of the trial court in a patent case cannot be set aside unless clearly erroneous. Rule 52(a), F.R.C.P.; Graver Tank & Mfg. Co., Inc. v. Linde Air Products Co., 336 U.S. 271, 274, 69 S.Ct. 535, 93 L.Ed. 672; Aluminum Company of America v. Sperry Products, Inc., supra, 285 F.2d at 917; Sterling Aluminum Products, Inc. v. Bohn Aluminum & Brass Corp., supra, 298 F.2d at 539; General Electric Company v. Sciaky Bros., Inc., 304 F.2d 724, 731, C.A. 6; Jiffy Enterprises, Inc. v. Sears, Roebuck & Co., 306 F.2d 240, 243, C.A. 3, cert. denied, 371 U.S. 922, 83 S.Ct. 289, 9 L.Ed.2d 230, citing R. M. Palmer Company v. Luden’s Inc., 236 F.2d 496, 498, C.A. 3; Hoge Warren Zimmerman Co. v. Nourse & Co., 293 F.2d 779, 780, C.A. 6; Thermo King Corporation v. White’s Trucking Service, Inc., 292 F.2d 668, 678, C.A. 5; Welsh Co. of California v. Strolee of California, Inc., 290 F.2d 509, 511, C.A. 9. We sustain the finding of the trial court that the patent in suit is valid as to claims 7, 8, 9, 12, 16 and 17. The terms of claim 15 of the plaintiff’s patent (plaintiff’s Ex. 1A), which the District Court held to be invalid, are obviously so broad that they cannot be construed so as to be confined to the invention disclosed by plaintiff’s patent (No. 2,717,456). As the trial judge said, this claim would embrace an “open” as well as a “closed” system drier. For the reason that claim 15 overstates the invention and claims a monopoly greater than that to which the inventor is entitled, we conclude that the claim is invalid. Plaintiff alleges that defendant has infringed plaintiff’s patent by manufacturing, selling and using clothes driers embodying his patented invention. Specifically, plaintiff asserts that defendant’s commercial clothes drier models CDF, CDH and CDK infringe upon claims 7, 8, 9, 12, 15, 16 and 17. (Claim 15 alleged to have been infringed has been disposed of previously in this opinion.) The District Court determined that the accused device did not infringe. On this appeal the plaintiff contends that the defendant’s machine comes within the plain scope of the claims alleged, and, therefore, that infringement is established. The plaintiff further asserts that the accused device and the patented machine are, for all material purposes, structurally and functionally equivalent. It claims that infringement cannot be avoided by adopting a subcomponent (here a blower heater bypass tube) which is not critical to the patented invention. We turn then to the general principles of patent infringement law applicable to the facts of this case. The Supreme Court has defined an infringement as “a copy of the thing described in the specification of the patentee, either without variation, or with such variations as are consistent with its being in substance the same thing. If the invention of the patentee be a machine, it will be infringed by a machine which incorporates in its structure and operation the substance of the invention; that is, by an arrangement of mechanism which performs the same service or produces the same effect in the same way, or substantially the same way. * * * That two machines produce the same effect will not justify the assertion that they are substantially the same, or that the devices used are, therefore, mere equivalents for those of the other.” Westinghouse v. Boyden Power Brake Company, 170 U.S. 537, 569, 18 S.Ct. 707, 723, 42 L.Ed. 1136. Cited in Aluminum Company of America v. Sperry Products, Inc., supra, 285 F.2d at 923. The statutory enactment on infringement is Sec. 271(a), Title 35, U.S.C.: “Except as otherwise provided in this title, whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.” This infringement provision was first enacted in the 1952 patent statute. It left intact the entire body of case law on direct infringement. Aro Manufacturing Co., Inc. v. Convertible Top Replacement Co., Inc., 365 U.S. 336, 342, 81 S.Ct. 599, 5 L.Ed.2d 592, rehearing denied, 365 U.S. 890, 81 S.Ct. 1024, 6 L.Ed. 2d 201. The question of infringement is generally regarded as a question of fact. Hamilton Mfg. Corp. v. Toledo Guild Products, 210 F.2d 237, 238, C.A.6; Aluminum Co. of America v. Thompson Products, Inc., 122 F.2d 796, 799, C.A.6. Accordingly, upon review of the trial court’s determination of no infringement, the clearly erroneous rule, Rule 52 (a), F.R.C.P., is applicable. See also Graver Tank & Mfg. Co., Inc. v. Linde Air Products Co., 339 U.S. 605, 609-610, 70 S.Ct. 854, 94 L.Ed. 1097. Proceeding then to determine whether the lower court was clearly erroneous, we first consider the claims alleged to be infringed. “In determining whether an accused device or composition infringes a valid patent, resort must be had in the first instance to the words of the claim. If accused matter falls clearly within the claim, infringement is made out and that is the end of it.” Graver Tank & Mfg. Co., Inc. v. Linde Air Products Co., 339 U.S. 605, 607, 70 S.Ct. 854, 855, 94 L.Ed. 1097. See Parmelee Pharmaceutical Company v. Zink, 285 F.2d 465, 469, C.A.8. In determining whether the accused device reads within the claims, we look at claim 9 which is fairly representative of all the claims in issue. Claim 9 provides: “A drier for damp clothing, comprising a substantially imperforate casing defining a chamber and having an access opening therein, a closure for such opening, a tumbler in said chamber for agitating the clothing, said casing comprising walls openly facing said tumbler, means for heating said chamber to evaporate the moisture in the clothing, means for conducting cooling water in a relative thin and wide film over the interior of a portion of said walls to condense the evaporated vapor, and means for directing the cooling water and condensate to drain.” Upon a reading of these claims, it is apparent that the Maytag drier consists of the following essential elements or component parts previously enumerated: (1) A substantially imperforate casing defining a chamber. (2) A tumbler or drum to agitate the clothing. (3) Walls of such casing which openly face the tumbler or drum. (4) Means for heating the chamber. (5) A water film condenser. In both the plaintiff’s and defendant’s machines, the drying operation is accomplished by the recirculation of heated air through the perforated tumbler and wet fabrics, past a water film condenser that runs from a side position of the stationary casing in a quiescent wide film to a drain at the bottom. This water film is in an open confronting relation to the perforated tumbler. In the plaintiff’s machine this water film is used for the elimination of lint. The plaintiff’s patented machine uses no mechanical means for the circulation of air. Rather, circulation is accomplished by the vapor pressure difference — the hot, moisture laden air naturally moving towards a cooler surface. No ducts or baffles are employed to channel the air. No forced air circulation is used. This operation is characterized as “random flow.” The defendant’s machine provides a fan or a pump for recirculating the air through a bypass at the top of the casing, in which the heater is installed. This fan returns the air into the chamber after it has been reheated in the bypass tube. By this forced circulation of air through the heater bypass direction is imparted to the flow of air within the chamber. Defendant characterized this method as “sequential flow.” Up to eighty percent of the lint is collected on a lint screen at the opening of this heater bypass. The remaining twenty percent of the lint moves with the moisture being condensed at the water film and is discharged out the drain. The water film condenser in the accused device is similarly situated and operates in the same manner as the plaintiff’s water film. Considering the essential elements enumerated in the claims, therefore, the defendant’s machine has a tumbler in open confronting relationship to a water film condenser, elements 2, 3 and 5. The elements for heating the chamber (element 4) are in a bypass tube or channel separate from the drying operation. Claim 9, previously reproduced as a representative claim, says “means for heating said chamber to evaporate the moisture in the clothing.” Therefore, the location of the heater is not relevant. Element 4 is present in the accused device, since the drying function is being performed by some means for heating. Issue is joined, however, on element 1, “substantially imperforate casing defining a chamber.” Defendant contends that since there is an opening in the chamber wall of its machine leading to and from the heater bypass tube, the accused machine cannot be said to have a “substantially imperforate casing.” Contrary to this interpretation the plaintiff contends that the term “substantially imperforate” means imperforate to the ambient or outside atmosphere and does not encompass holes or openings which allow air to be recirculated through chambers and ducts within a closed system. The crux of the infringement controversy is the definition of the language “substantially imperforate casing.” In the construction of this term, Judge Freeman found “that defendant’s machine does not utilize the ‘substantially imperforate casing’ (or walls thereof) recited by claims * * * 7, 8, 9, 12, 16 and 17 (element 1, supra).” Maytag Company v. Murray Corporation of America, D.C., 193 F.Supp. 535, 544. In the laundry drier field the art is crowded. This is not the case of a pioneer patent. This is a combination patent consisting of a variety of old elements. The patentee was a narrow improver. Accordingly, the patentee cannot prevent others from making improvements on the prior art unless they use substantially the very novelty which is the basis of his patent. National Latex Products Company v. Sun Rubber Company, 274 F.2d 224, C.A.6, cert. denied, 362 U.S. 989, 80 S.Ct. 1078, 4 L.Ed.2d 1022; Remington Rand, Inc. v. Meilink Steel Safe Co., 140 F.2d 519, 521, C.A.6; Industrial Instrument Corporation v. Foxboro Company, 307 F.2d 783, 785, C.A.5, rehearing denied, 686. 310 F.2d “The claim of a patent must be read in the light of the invention disclosed and cannot be given a construction broader than the teachings of the patent as shown by the drawings and specifications.” Blanc v. Curtis, 119 F.2d 395, 397, C.A.6. See Aluminum Co. of America v. Thompson Products, Inc., supra, 122 F.2d at 800. Considering the invention disclosed and the state of the prior laundry drier art, this disputed term must be given a strict construction. Fife Manufacturing Company v. Stanford Engineering Co., 299 F.2d 223, 226, C.A.7. “Substantially imperforate casing” would exclude any perforations, holes or openings which are designed or utilized to direct an air flow outside the drying chamber. We hold that the trial court’s finding that the term “substantially imperforate” meant devoid of any openings in the drying chamber was correct. The openings at the entrance to the blower-heater bypass tube, where the lint screen was located, and at the exit, where the heated air was returned to the chamber, “perforated” the main casing of the accused device. Accordingly, the accused device clearly does not fall within the asserted claims. Having determined that the “accused device” does not read upon the claims of the patent, the plaintiff can prevail on the infringement issue only if the doctrine of equivalents is applicable. Accordingly, we proceed to the consideration of equivalency. The Supreme Court has recently reaffirmed the continuing validity of the Doctrine of Equivalents. Graver Tank & Mfg. Co., Inc. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097. At p. 607, 70 S.Ct. at p. 855 the Court said “courts have also recognized that to permit imitation of a patented invention which does not copy every literal detail would be to convert the protection of the patent grant into a hollow and useless thing. Such a limitation would leave room for — indeed encourage —the unscrupulous copyist to make unimportant and insubstantial changes and substitutions in the patent which, though adding nothing, would be enough to take the copied matter outside the claim, and hence outside the reach of law. One who seeks to pirate an invention, like one who seeks to pirate a copyrighted book or play, may be expected to introduce minor variations to conceal and shelter the piracy. Outright and forthright duplication is a dull and very rare type of infringement. To prohibit no other would place the inventor at the mercy of verbalism and would be subordinating substance to form. It would deprive him of the benefit of his invention and would foster concealment rather than disclosure of inventions, which is one of the primary purposes of the patent system.” See Royal Typewriter Co. v. Remington Rand, Inc., 168 F.2d 691, 692, C.A.2, cert. denied, 335 U.S. 825, 69 S.Ct. 50, 93 L.Ed. 379. The essence of the doctrine of equivalents is that one may not practice a fraud on a patent “ * * * if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape,” Graver Tank & Mfg. Co., Inc. v. Linde Air Products Co., supra, 339 U.S. at 608, 70 S.Ct. at 856. “What constitutes equivalency must be determined against the context of the patent, the prior art, and the particular circumstances of the case. Equivalence, in the patent law, is not the prisoner of a formula and is not an absolute to be considered in a vacuum. It does not require complete identity for every purpose and in every respect. In determining equivalents, things equal to the same thing may not be equal to each other and, by the same token, things for most purposes different may sometimes be equivalents. Consideration must be given to the purpose for which an ingredient is used in a patent, the qualities it has when combined with the other ingredients, and the function which it is intended to perform. An important factor is whether persons reasonably skilled in the art would have known of the interchangeability of an ingredient not contained in the patent with one that was.” Id. 339 U.S. at 609, 70 S.Ct. at 856. Speaking specifically about infringement of a combination patent, the Sixth Circuit has stated in Aluminum Company of America v. Sperry Products, Inc., supra, 285 F,2d at 923: “[infringement of a combination patent occurs only through a combination comprising every one of its elements or a mechanical equivalent.” Further, an improver could not appropriate the basic patent of another, for the improver without a license is an infringer. Id. 285 F.2d at 924, the court said: “If the infringing device performs the same function as the patented device, it is immaterial that it also performs some other function. It is still nonetheless an equivalent of the patented device, and an appropriation of the patented invention.” The essence of the invention disclosed by the plaintiff’s patent was the “random flow” of air, initiated by the vapor pressure difference. Plaintiff asserts that the utilization of fans and duct work is non-essential since the drying process is actually completed by the flow of air caused by the vapor pressure differential. The trial court determined that in the accused device the drying process was accomplished by reason of a directional or “sequential” flow of air. The court found that the defendant did not rely on the vapor pressure difference to accomplish this process. The question of equivalency then is this: Although direction is imparted to the air flow by the blower in the bypass tube, does the defendant still rely principally upon the vapor pressure differential to accomplish the drying process in his machine? The range of equivalents depends upon and varies with the degree of invention. Continental Paper Bag Company v. Eastern Paper Bag Company, 210 U.S. 405, 415, 28 S.Ct. 748, 52 L.Ed. 1122. Here where the patent is narrow and the art is crowded the range of equivalents is similarly narrow. Parmelee Pharmaceutical Company v. Zink, supra, 285 F.2d at 472; Fife Manufacturing Company v. Stanford Engineering Co., supra, 299 F.2d at 226. In considering the range of equivalents we consider the prior art as one of the determinative factors. It is apparent to one-skilled in the laundry drier art that two branches have evolved. The first type is that of the forced air circulation type. Fans or blowers are-situated outside the cylindrical fixed casing in which the clothes tumbler rotates. The necessary accompanying equipment of housing and duct work acts to channel' the air into, through, and out of the main casing in which the clothes tumbler is operating. This type of machine is best represented by the prior Constantine (No. 2,590,295) and Pugh (Nos. 2,451,692 and 2,453,859) patents. The accused device follows this branch of the prior art. The second category of the prior art eliminates forced air circulation. This-eliminates the accompanying equipment of blower, housing and duct work which is exterior to the cylindrical casing in which the clothes tumbler rotates. All' the necessary elements for the drying process are contained within this imperforate chamber, namely, the clothes tumbler, the heating elements, and the condensing elements. This type of machine is represented by the Erickson et al. (No. 2,701,421), Graham (No. 2,686,372), and Hammel et al. (No. 2,644,245) patents. The machine of the patent in suit is of this type. We conclude that the patent in-suit and the accused device are not equivalent. The two machines operate from entirely different premises. The finding-that defendant’s machine does not employ the “random flow” of air which constitutes the essence of the invention is correct. The judgment of the District. Court is in all respects affirmed. . Claim 7: “* * * a substantially imperforate container * * * defining a drying chamber. * * * ” Claim 8: “ * * * a substantially imperforate casing * * * defining a chamber. * * * ” Claim 9: “ * * * a substantially imperforate casing defining a chamber. Claim 12: “ * * * a substantially imperforate casing defining a drying chamber. * * * ” Claims 16 and 17: “ * * * said casing including an imperforate wall. $ * * 3» Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:

songer_applfrom

E

What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant, v. The BROTHERHOOD OF RAILROAD TRAINMEN et al., Appellees. No. 21236. United States Court of Appeals Fifth Circuit. March 16, 1965. Monroe E. Clinton, Denison, Tex., Ralph Elliott, Sherman, Tex., W. A. Thie, Dallas, Tex., for appellant. William P. Fonville, Hart Willis, Jr., Dallas, Tex., for appellee. Before MARIS RIVES and BROWN, Circuit Judges. Of the Third Circuit, sitting by designation. MARIS, Circuit Judge. The plaintiff, Missouri-Kansas-Texas Railroad Company, on June 10, 1962 brought this action in the District Court for the Eastern District of Texas to enjoin a strike of its brakemen and switch-men called for June 11th by the defendant, the Brotherhood of Railroad Trainmen, on account of the alleged refusal or failure of the plaintiff to correct hazardous and unsafe conditions caused by the lack of maintenance. The conditions complained of were, inter alia, the growth of weeds and other vegetation to such heights and density as to obscure the ground; the accumulation of debris on the ground; the growth of trees and shrubbery to such height on the rights-of-way as to brush the sides of the engines and cars in passing; the deterioration of rails; and the existence of filthy and unsanitary conditions in locker and wash rooms. A temporary restraining order was issued enjoining the defendant Brotherhood, its officers, members and locals, -from calling or participating in the strike. The plaintiff then amended its complaint to allege that no demand had been made by defendants for any agreement, or for an amendment to the existing agreement, relating to hazardous or unsafe conditions and that on June 13, 1962 the plaintiff had submitted the controversy to the National Railroad Adjustment Board. The temporary restraining order was continued in force until October 26, 1963 when the district court dissolved it and dismissed the complaint, holding that under the provisions of the Norris-LaGuardia Act, 29 U.S.C.A. §§ 101 et seq., the court lacked jurisdiction to grant the injunctive relief prayed for. From the order dissolving the temporary restraining order and dismissing the complaint the plaintiff appealed. The action of the district court was based upon its conclusion that the dispute between the parties was a “major dispute”, i. e., a dispute concerning the making or amendment of a collective agreement, which was within the jurisdiction of the National Mediation Board under the Railway Labor Act and not a “minor dispute”, i. e., a dispute growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions, which under the Act would be within the jurisdiction of the National Railroad Adjustment Board. The significance of the distinction, so far as the present case is concerned, lies in the fact that, while the Norris-LaGuardia Act may well operate to deprive a district court of jurisdiction to grant injunctive relief in a “major” railway labor dispute as to which the procedure prescribed by the Railway Labor Act has been exhausted, it is settled that the Act does not deprive a district court of jurisdiction to enjoin a strike arising out of a “minor” dispute which is within the jurisdiction of the National Railroad Adjustment Board and which has been submitted to the Board. Brotherhood of Railroad Trainmen v. Chicago River & I. R. Co., 1957, 353 U.S. 30, 77 S.Ct. 635,1 L.Ed.2d 622; Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas R. Co., 1960, 363 U.S. 528, 80 S.Ct. 1326, 4 L.Ed. 2d 1379. Accordingly the question for our decision is whether the district court erred in concluding that the dispute between the parties in this case is a “major dispute” as to which the Norris-LaGuardia Act might apply and not a “minor dispute” as to which the court was empowered to grant injunctive relief to the plaintiff. The distinction which the Railway Labor Act makes between the two kinds of disputes was outlined by the Supreme Court in Elgin, J. & E. R. Co. v. Burley, 1945, 325 U.S. 711, 722-723, 65 S.Ct. 1282, 1289-1290, 89 L.Ed. 1886, as follows : “The difference between disputes over grievances and disputes concerning the making of collective agreements is traditional in railway labor affairs. * * * “The statute first marks the distinction in Section 2, which states as among the Act’s five general purposes: ‘(4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; (5) to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.’ The two sorts of dispute are sharply distinguished * * * it is clear from the Act itself, from the history of railway labor disputes and from the legislative history of the various statutes which have dealt with them, that Congress has drawn major lines of difference between the two classes of controversy. “The first relates to disputes over the formation of collective agreements or efforts to secure them. * * * They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past. “The second class, however, contemplates the existence of a collective agreement already concluded or, at any rate, a situation in which no effort is made to bring about a formal change in terms or to create a new one. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case. In the latter event the claim is founded upon some incident of the employment relation * * * the claim is to rights accrued, not merely to have new ones created for the future.” [emphasis added] See also Order of Railway Conductors v. Pitney, 1946, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318. We are satisfied that the dispute between the present parties is of the second class referred to by the Supreme Court in the Elgin case, i. e., a “minor dispute” growing out of grievances because of the alleged failure of the plaintiff to accord the members of the defendant Brotherhood the safe working conditions to which they are entitled. It is true that there is no express written provision in the existing collective agreement between the parties with respect to the working conditions of which the defendant complains. But the common law duty of the plaintiff to use reasonable care in furnishing its employees with a safe place to work is clear, Bailey v. Central Vermont R. Co., 1943, 319 U.S. 350, 352-353, 63 S.Ct. 1062, 87 L.Ed. 1444. The members of the defendant Brotherhood who are employees of the plaintiff are, therefore, entitled to compliance by the plaintiff with that existing obligation. If, however, the plaintiff has failed to perform that duty its employees are required by the Railway Labor Act to submit their grievances in that regard to the National Railroad Adjustment Board for adjustment. See Illinois Central R. Co. v. Brotherhood of Locomotive Firemen & Enginemen, 7 Cir. 1964, 332 F.2d 850. It follows that the district court erred in dismissing the complaint. The judgment of the district court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. . On December 3, 1963 the district court granted the plaintiff’s motion for an injunction pending appeal and the defendants were enjoined from calling a strike for the reasons assigned in the complaint and conditions were imposed upon the plaintiff, l.e., removing debris, cutting all weeds, vegetation and trees within six feet of the end of ties, cleaning locker and wash rooms and repairing specified equipment. . 45 U.S.C.A. §§ 151 et seq. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:

sc_issue_1

43

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. UNITED STATES v. BRUNO. No. 67. Argued November 22, 1946. Decided December 9, 1946. Stanley M. Silverberg argued the cause for the United States. With him on the brief were Solicitor General McGrath, Robert L. Stern, George Moncharsh, David London, Irving M. Gruber and Albert J. Rosenthal. George R. Sommer argued the cause and filed a brief for respondent. Mr. Justice Douglas delivered the opinion of the Court. A criminal information was brought against Bruno for having wilfully sold waste paper at prices higher than the ceilings established by Maximum Price Regulation 30. The information contained five counts, each count charging a sale of a carload lot in 1944 at prices above the established ceilings. The jury found Bruno guilty on all five counts. He was sentenced to imprisonment for six months and fined $500. The judgment of conviction was reversed by the Circuit Court of Appeals. 153 F. 2d 843. The case is here on a petition for a writ of certiorari which we granted because of an asserted conflict in principle between the decision below and United States v. Seidmon, 154 F. 2d 228, in the Seventh Circuit Court of Appeals. Bruno was in charge of a business, owned by a relative, which bought and sold waste paper. Carrano was a middleman who bought waste paper from Bruno on orders from Carrano’s customers. The paper was shipped by Bruno direct to the customers, Carrano paying Bruno the price. In each of the five sales challenged here, Carrano ordered from Bruno a grade of paper known as No. 1 assorted kraft. In each, Bruno invoiced the shipment as such and charged the ceiling price for that grade of waste paper. Carrano paid Bruno the invoice price. It appears that the orders were subject to inspection and approval of the waste paper by the customers; that they customarily made the inspections on receipt of the shipments; and that if the paper was below the grade at which it had been invoiced, the customers would pay Carrano the lower ceiling price, Carrano debiting Bruno with the difference. Each of the five shipments in question was inspected by the customer on its arrival. It was discovered that each shipment was largely composed of corrugated paper, a grade carrying a lower ceiling price. In three cases, the customers paid Carrano only for the quality of waste paper received. Carrano thereupon debited Bruno with the difference. In two cases, the customer did not complain of the upgrading and Bruno retained the over-charges. Moreover, the debits to Bruno in the three instances mentioned followed on the heels of an investigation by the Office of Price Administration. It also appears that the debits were not shown on Bruno’s books. His ledger showed sales, not at the invoice price, but at lower prices. The concealed amounts were explained by Bruno as constituting his commissions on the sales. The District Court charged the jury that “before you can find him guilty, there must have been in his mind an intention not to set a price and then have it adjusted after-wards according to the truth of the situation, but an intent to fix this price and charge it and get away with it, — an intent to commit the crime, the formation of a purpose in his mind when he did this thing, to get more money for that paper than the ceiling price established by law.” The court also charged that there could be no conviction if Bruno did not sell the waste paper “with the intent of receiving higher than ceiling price, and did not actually receive higher than ceiling price.” We think it was proper to submit the case to the jury. The evidence seems to us ample to support the conviction. There was false grading in each invoice. The sales were not made at a price to be determined on the customers’ inspection of the grade. They were made at specific invoice prices which were above the ceiling. The goods were delivered at those prices; and those were the prices actually paid. In some instances there was a subsequent adjustment of the price to conform to the price ceiling for the grade actually shipped. But in others there was not. And bearing on the integrity of the system were two other facts — (1) the debits made followed the OPA investigation; (2) the inflated prices were not disclosed on Bruno’s books. In a seller’s market upgrading may be a convenient device for black market operations. As the Circuit Court of Appeals noted, when paper is scarce the seller may send not what is ordered but what he has, on the assumption that manufacturers will be glad to take any kind of paper they can get. In view of the inadequacy of the supply, buyers cannot always be expected to reject upgraded shipments or insist upon price adjustments. The facts of this case sustain that theory, for in two instances no price adjustment was sought or made. In view of all the circumstances, the jury could well conclude that the system adopted by Bruno was designed to bring him more for the goods than was lawful. Reversed. Section 205 (b), Emergency Price Control Act of 1942, 56 Stat. 23, 33, 50 U. S. C. App. Supp. Ill § 925 (b). See 7 Fed. Reg. 9732, 8 Fed. Reg. 13049, 17483. The Circuit Court of Appeals seemed to proceed on the assumption that in no instance did the ultimate price which was paid exceed the ceiling price. The preceding part of the charge was: “In order that there may be a crime here, there must have been an intent on the part of this defendant to commit that crime, which was to receive a price for the paper which he sold which was in excess of the ceiling price. Now, if actually there had been paid to him more than the ceiling price, but it was the intent and intention of all persons respecting it, not to accept that as the final price necessarily, but to accept it subject to adjustment which would be made upon the examination of the paper actually delivered and the establishment of the price set by law for that paper, that is, if they had the idea that the only price to be received was that which the law set for the paper actually delivered, and that actually was what was paid, then there was no intent on his part to break the law. But if he sold this paper to the dealer, the wholesale dealer for a price which was above the ceiling price, and that was the price that he intended to get, and if you find as a fact that the only reason he didn’t get it was because he didn’t get away with it and there was a discovery without his having intent to do the honest decent thing, and that was the only reason he didn’t get it, still he would have had an intent to commit the crime and would have effectively committed it when he received above-ceiling price which he intended to receive, if he did so intend, and if the only reason that he didn’t get the ceiling price was because he was found out.” Question: What is the issue of the decision? 01. involuntary confession 02. habeas corpus 03. plea bargaining: the constitutionality of and/or the circumstances of its exercise 04. retroactivity (of newly announced or newly enacted constitutional or statutory rights) 05. search and seizure (other than as pertains to vehicles or Crime Control Act) 06. search and seizure, vehicles 07. search and seizure, Crime Control Act 08. contempt of court or congress 09. self-incrimination (other than as pertains to Miranda or immunity from prosecution) 10. Miranda warnings 11. self-incrimination, immunity from prosecution 12. right to counsel (cf. indigents appointment of counsel or inadequate representation) 13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty) 14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts) 15. line-up 16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations) 17. double jeopardy 18. ex post facto (state) 19. extra-legal jury influences: miscellaneous 20. extra-legal jury influences: prejudicial statements or evidence 21. extra-legal jury influences: contact with jurors outside courtroom 22. extra-legal jury influences: jury instructions (not necessarily in criminal cases) 23. extra-legal jury influences: voir dire (not necessarily a criminal case) 24. extra-legal jury influences: prison garb or appearance 25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment) 26. extra-legal jury influences: pretrial publicity 27. confrontation (right to confront accuser, call and cross-examine witnesses) 28. subconstitutional fair procedure: confession of error 29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy) 30. subconstitutional fair procedure: entrapment 31. subconstitutional fair procedure: exhaustion of remedies 32. subconstitutional fair procedure: fugitive from justice 33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case) 34. subconstitutional fair procedure: stay of execution 35. subconstitutional fair procedure: timeliness 36. subconstitutional fair procedure: miscellaneous 37. Federal Rules of Criminal Procedure 38. statutory construction of criminal laws: assault 39. statutory construction of criminal laws: bank robbery 40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy) 41. statutory construction of criminal laws: escape from custody 42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury) 43. statutory construction of criminal laws: financial (other than in fraud or internal revenue) 44. statutory construction of criminal laws: firearms 45. statutory construction of criminal laws: fraud 46. statutory construction of criminal laws: gambling 47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951 48. statutory construction of criminal laws: immigration (cf. immigration and naturalization) 49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation) 50. statutory construction of criminal laws: Mann Act and related statutes 51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol 52. statutory construction of criminal laws: obstruction of justice 53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements) 54. statutory construction of criminal laws: Travel Act, 18 USC 1952 55. statutory construction of criminal laws: war crimes 56. statutory construction of criminal laws: sentencing guidelines 57. statutory construction of criminal laws: miscellaneous 58. jury trial (right to, as distinct from extra-legal jury influences) 59. speedy trial 60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure) Answer:

sc_caseorigin

027

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. FEDERAL TRADE COMMISSION v. BROWN SHOE CO., INC. No. 118. Argued April 25, 1966. Decided June 6, 1966. Ralph S. Spritzer argued the cause for petitioner. On the brief were Solicitor General Marshall, Assistant Attorney General Turner, Robert S. Rifkind, Howard E. Shapiro, Milton J. Grossman, James Mcl. Henderson, Thomas F. Howder and Gerald J. Thain. Robert H. McRoberts argued the cause for respondent. With him on the brief were Gaylord C. Burke and Edwin S. Taylor. Mr. Justice Black delivered the opinion of the Court. Section 5 (a) (6) of the Federal Trade Commission Act empowers and directs the Commission “to prevent persons, partnerships, or corporations . . . from using unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce.” Proceeding under the authority of § 5, the Federal Trade Commission filed a complaint against the Brown Shoe Co., Inc., one of the world’s largest manufacturers of shoes with total sales of $236,946,078 for the year ending October 31, 1957. The unfair practices charged against Brown revolve around the “Brown Franchise Stores’ Program” through which Brown sells its shoes to some 650 retail stores. The complaint alleged that under this plan Brown, a corporation engaged in interstate commerce, had “entered into contracts or franchises with a substantial number of its independent retail shoe store operator customers which require said customers to restrict their purchases of shoes for resale to the Brown lines and which prohibit them from purchasing, stocking or reselling shoes manufactured by competitors of Brown.” Brown’s customers who entered into these restrictive franchise agreements, so the complaint charged, were given in return special treatment and valuable benefits which were not granted to Brown’s customers who did not enter into the agreements. In its answer to the Commission’s complaint Brown admitted that approximately 259 of its retail customers had executed written franchise agreements and that over 400 others had entered into its franchise program without execution of the franchise agreement. Also in its answer Brown attached as an exhibit an unexecuted copy of the “Franchise Agreement” which, when exec.uted by Brown’s representative and a retail shoe dealer, obligates Brown to give to the dealer but not to other customers certain valuable services, including among others architectural plans, costly merchandising records, services of a Brown field representative, and a right to participate in group insurance at lower rates than the dealer could obtain individually. In return, according to the franchise agreement set out in Brown’s answer, the retailer must make this promise: “In return I will: “1. Concentrate my business within the grades and price lines of shoes representing Brown Shoe Company Franchises of the Brown Division and will have no lines conflicting with Brown Division Brands of the Brown Shoe Company.” Brown’s answer further admitted that the operators of “such Brown Franchise Stores in individually varying degrees accept the benefits and perform the obligations contained in such franchise agreements or implicit in such Program,” and that Brown refuses to grant these benefits “to dealers who are dropped or voluntarily withdraw from the Brown Franchise Program The foregoing admissions of Brown as to the existence and operation of the franchise program were buttressed by many separate detailed fact findings of a trial examiner, one of which findings was that the franchise program effectively foreclosed Brown’s competitors from selling to a substantial number of retail shoe dealers. Based on these findings and on Brown’s admissions the Commission concluded that the restrictive contract program was an unfair method of competition within the meaning of § 5 and ordered Brown to cease and desist from its use. On review the Court of Appeals set aside the Commission’s order. In doing so the court said: “By passage of the Federal Trade Commission Act, particularly § 5 thereof, we do not believe that Congress meant to prohibit or limit sales programs such as Brown Shoe engaged in in this case. . . . The custom of giving free service to those who will buy their shoes is widespread, and we cannot agree with the Commission that it is an unfair method of competition in commerce.” 339 F. 2d 45, 56. In addition the Court of Appeals held that there was a “complete failure to prove an exclusive dealing agreement which might be held violative of § 5 of the Act.” We are asked to treat this general conclusion as though the court intended it to be a rejection of the Commission’s findings of fact. We cannot do this. Neither this statement of the court nor any other statement in the opinion indicates a purpose to hold that the evidence failed to show an agreement between Brown and more than 650 franchised dealers which restrained the dealers from buying competing lines of shoes from Brown’s competitors. Indeed, in view of the crucial admissions in Brown’s formal answer to the complaint we cannot attribute to the Court of Appeals a purpose to set aside the Commission’s findings that these restrictive agreements existed and that Brown and most of the franchised dealers in varying degrees lived up to their obligations. Thus the question we have for decision is whether the Federal Trade Commission can declare it to be an unfair practice for Brown, the second largest manufacturer of shoes in the Nation, to pay a valuable consideration to hundreds of retail shoe purchasers in order to secure a contractual promise from them that they will deal primarily with Brown and will not purchase conflicting lines of shoes from Brown’s competitors. We hold that the Commission has power to find, on the record here, such an anticompetitive practice unfair, subject of course to judicial review. See Atlantic Rfg. Co. v. FTC, 381 U. S. 357, 367. In holding that the Federal Trade Commission lacked the power to declare Brown’s program to be unfair the Court of Appeals was much influenced by and quoted at length from this Court’s opinion in Federal Trade Comm’n v. Gratz, 253 U. S. 421. That case, decided shortly after the Federal Trade Commission Act was passed, construed the Act over a strong dissent by Mr. Justice Brandéis as giving the Commission very little power to declare any trade practice unfair. Later cases of this Court, however, have rejected the Gratz view and it is now recognized in line with the dissent of Mr. Justice Brandéis in Gratz that the Commission has broad powers to declare trade practices unfair. This broad power of the Commission is particularly well established with regard to trade practices which conflict with the basic policies of the Sherman and Clayton Acts even though such practices may not actually violate these laws. The record in this case shows beyond doubt that Brown, the country’s second largest manufacturer of shoes, has a program, which requires shoe retailers, unless faithless to their contractual obligations with Brown, substantially to limit their trade with Brown’s competitors. This program obviously conflicts with the central policy of both § 1 of the Sherman Act and § 3 of the Clayton Act against contracts which take away freedom of purchasers to buy in an open market. Brown nevertheless contends that the Commission had no power to declare the franchise program unfair without proof that its effect “may be to substantially lessen competition or tend to create a monopoly” which of course would have, to be proved if the Government were proceeding against Brown under § 3 of the Clayton Act rather than § 5 of the Federal Trade Commission Act. We reject the argument that proof of this § 3 element must be made for as we pointed out above our cases hold that the Commission has power under § 5 to arrest trade restraints in their incipiency without proof that they amqunt to an outright violation of § 3 of the Clayton Act or other provisions of the antitrust laws. This power of the Commission was emphatically stated in F. T. C. v. Motion Picture Adv. Co., 344 U. S. 392, at pp. 394-395: “It is . . . clear that the Federal Trade Commission Act was designed to supplement and bolster the Sherman Act and the Clayton Act ... to stop in their incipiency acts and practices which, when full blown, would violate those Acts ... as well as to condemn as ‘unfair methods of competition’ existing violations of them.” We hold that the Commission acted well within its authority in declaring the Brown franchise program unfair whether it was completely full blown or not. Reversed. 38 Stat. 719, as amended, 15 U. S. C. §45 (a)(6) (1964 ed.). Section 5 (a)(1) of the Federal Trade Commission Act provides that “Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce, are declared unlawful.” In its opinion the Commission found that the services provided by Brown in its franchise program were the “prime motivation” for dealers to join and remain in the program; that the program resulted in franchised stores purchasing 75% of their total shoe requirements from Brown — the remainder being for the most part shoes which were not “conflicting” lines, as provided by the agreement; that the effect of the plan was to foreclose retail outlets to Brown’s competitors, particularly small manufacturers; and that enforcement of the plan was effected by teams of field men who called upon the shoe stores, urged the elimination of other manufacturers’ conflicting lines and reported deviations to Brown who then cancelled under a provision of the agreement. Compare Brown Shoe Co. v. United States, 370 U. S. 294. See, e. g., Federal Trade Comm’n v. R. F. Keppel & Bro., Inc., 291 U. S. 304, 310; Trade Comm’n, v. Cement Institute, 333 U. S. 683, 693; Atlantic Rfg. Co. v. FTC, 381 U. S. 357, 367. See, e. g., Fashion Guild v. Trade Comm’n, 312 U. S. 457, 463; Atlantic Rfg. Co. v. FTC, 381 U. S. 357, 369. Section 1 of the Sherman Act, 26 Stat. 209, 15 U. S. C. § 1 (1964 ed.), declares illegal “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations . . . .” Section 3 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 14 (1964 ed.), provides in relevant part: “It shall be unlawful for any person engaged in commerce . . . to . . . make a . . . contract for sale of goods . . . for . . . resale within the United States ... on the condition, agreement, or understanding that the . . . purchaser thereof shall not use or deal in the goods ... of a competitor or competitors of the . . . seller, where the effect of such . . . condition, agreement, or understanding may be to substantially lessen competition or tepd to create a monopoly in any line of commerce.” See cases cited in note 4, supra. Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:

songer_state

06

What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". VON SEGERLUND et al. v. DYSART et al. No. 10339. Circuit Court of Appeals, Ninth Circuit. Aug. 30, 1943. Rupert B. Turnbull and L. H. Phillips, both of Los Angeles, Cal., for appellants. Hiram E. Casey and S. Bernard Wager, both of Los Angeles, Cal., for appellee. Before WILBUR, GARRECHT, and HEALY, Circuit Judges. GARRECHT, Circuit Judge. ' The pivotal question herein is whether or not, in a case where a judgment creating a lien on only the real property of an alleged insolvent was obtained prior to the four-month period immediately preceding the filing of an involuntary petition in bankruptcy, a levy on the debtor’s personal property made within the four-month period created a lien the permitting of which constituted an act of bankruptcy. On March 22, 1937, a judgment in favor of Mary T. Christensen and against Stella Dysart, the appellee, was docketed in the office of the county clerk of McKinley County, New Mexico, and thereupon became a lien upon the appellee’s real property in that county. On August 25, 1938, a judgment in favor óf E. H. Youngblood against the appellee was filed in the same county. On September 8, 1937, and on December 13, 1939, writs of execution were served under the Christensen judgment by levying upon the appellee’s personal property. On July 5, 1941, July 29, 1941, and October 17, 1941, petitions to have the appellee declared a bankrupt were filed by about forty unsecured creditors, who are the appellants herein. On July 7, 1941, by virtue of an alias writ issued under the Christensen judgment on May 5, 1941, and a levy thereunder made on June 6, 1941, personal property of the appellee was sold by the sheriff of McKinley County, New Mexico. It was the permitting of this execution, levy and sale, which occurred within the statutory four-month period, that appellants contend constituted the act of bankruptcy. In the court below, the appellants offered in evidence authenticated copies of the judgments, executions, notices of sale, sheriff’s returns of sale, and other proceedings in the Christensen and Youngblood cases, supra. An objection on behalf of the appellee to the introduction of the Christensen exhibit was sustained. The Youngblood exhibit was admitted for the sole purpose of showing that at the date the Youngblood judgment was secured the appellee was the owner, of real property that stood in her name in McKinley County, New Mexico. The appellants then made an offer of proof to show that each of the petitioning creditors had provable claims against the appellee; that those claims aggregated more than $500; that on the dates on which the three petitions in involuntary bankruptcy were filed, during the respective four-month periods immediately prior thereto, and on the dates of the alleged acts of bankruptcy, the appellee was insolvent. These offers of proof were denied. The court ruled that even if insolvency were proved, there would be lacking the other two elements essential to establish the act of bankruptcy alleged — the existence of a lien and the failure to discharge it. The foregoing rulings are alleged to constitute error, and upon that contention the present appeal is bottomed. A connected case, involving the same alleged bankrupt, some of the same petitioning creditors, and the same Christensen and Youngblood judgments, has already been before this court. Dysart v. Von Segerlund et al., 118 F.2d 482, decided March 22, 1941. We there held that, though there was evidence that the alleged bankrupt permitted an execution to be issued on November 21, 1939, and to be levied on her property on December 13, 1939, there was no evidence that the lien thus obtained, if any, was not vacated within thirty days from the date thereof or at least five days before the date set for any sale or other disposition of the property, as required by the Bankruptcy Act. Since the date of that decision, however, another act of bankruptcy, as we have seen, is alleged to have been committed. The provision of the Bankruptcy Act pertinent to this case is 11 U.S.C.A. § 21, sub. a(3), which reads as follows: “§ 21. Acts of bankruptcy “a. Acts of bankruptcy by a person shall consist of his having * * * (3) suffered or permitted, while insolvent, any creditor to obtain a lien upon any of his property through legal proceedings and not having vacated or discharged such lien within thirty days from the date thereof or at least five days before the date set for any sale or other disposition of such property.” The appellants contend that the levy of execution on personal property of the alleged bankrupt on June 6, 1941, followed by the sale of that property on July 7, 1941, created a lien thereon within four months preceding the filing of the creditors’ petitions, which lien was not discharged by the debtor. The appellee, on the other hand, asserts that when a judgment has become a hen and four months are permitted to elapse, the right to claim that a lien has been secured under that judgment within the meaning of § 21 (a) (3) has been “exhausted”. A judgment lien as it exists in the United States is a creature of statute, and in the absence of statute does not give rise to a lien until an execution is delivered to the sheriff. 34 C.J. 568, 569, § 870. “Except in the few jurisdictions where a judgment does not of itself bind land, a judgment attaches as a lien without the use of any process, except as to property which is not commonly subject to the lien of a judgment, but can be made so by the levy of an execution, as trust property or personalty * * * ” Id., pp. 584, 585, § 892. “The lien [of a judgment] does not attach to personal property except where a statute so provides.” Id., pp. 587, 588, § 898. See also 31 Am.Jur., Judgments, § 308, p. 23. A levy on the property of a judgment debtor ordinarily gives the execution creditor a lien thereon. 33 C.J.S., Executions, p. 289, § 123; 1 Collier on Bankruptcy (Fourteenth Edition), § 3.308, p. 449. Liens obtained by a levy on personal property do not usually require the aid of equity for their enforcement. The foregoing principles are found incorporated in the statutes and jurisprudence of most states. The statutes of New Mexico seem to follow the general law relating to judgment liens and levy liens, although in some respects in that state both the statutory enactments and the jurisprudence on the subject are somewhat meager. It was stipulated by counsel, however, that, under the laws of New Mexico as they existed at the time the judgment was docketed, such docketing created a lien on the real property of the judgment debtor. This stipulation is apparently based upon § 76-110 of the New Mexico Statutes Annotated of 1929, which reads as follows: “Any money judgment rendered in the supreme or district court shall be docketed by the clerk of the court in a book kept for the purpose, and shall be a lien on the real estate of the judgment debtor from the date of the filing of a transcript of the docket of such judgment in such book in the office of the county clerk of the county in which such real estate is situate.” From the foregoing section it is clear — and counsel for the appellee so concede — that in New Mexico a judgment is not “an automatic lien on personal property”. Neither the statutes of New Mexico nor the record herein are quite so specific regarding the lien created on personal property as the result of a levy under a writ of execution. Both sides, however, assume that in New Mexico the general law is followed, and that a levy does create a lien on personalty. Counsel for the appellee contend, however, that permitting the procurement of the lien so created, which came into existence more than four months after the creation of the “original” lien on the real property of the judgment debtor, cannot constitute an act of bankruptcy. Be that as it may, regardless of any stipulation or avowals in the record, this court may take judicial notice of the statutes of New Mexico, as interpreted by its highest court. Lamar v. Micou, 114 U.S. 218, 223, 5 S.Ct. 857, 29 L.Ed 94; Bowen v. Johnston, 306 U.S. 19, 23, 59 S.Ct. 442, 83 L.Ed. 455. Independent research has convinced us that New Mexico follows the general law regarding the creation of a lien on personalty as the result of a levy under a writ of execution. Section 21-213 of the New Mexico Statutes Annotated of 1941 reads as follows: “The lien of the levy upon the property shall continue until the debt is paid, and the clerk, unless otherwise directed by the plaintiff, shall forthwith issue another execution, reciting the return of the former execution, the levy and failure to sell, and directing the sheriff to satisfy the judgment out of the property unsold, if the same is sufficient, if not, then out of any other property of the debtor, subject to execution.” [Italics our own.] The foregoing section has' been carried over verbatim from the 1929 code, supra, vdiere it appeared as § 46-122, under the heading of “Alias writ”. And it was under an “alias writ” that the levy of June 6, 1941, was made. An examination of the entire chapter in which the foregoing section appears makes it clear that the “property” referred to therein means personalty as well as realty. It is equally clear that each levy creates a new lien upon the property affected by it. We are thus brought to a consideration of the final and crucial question in this case; namely, is a lien thus created by a levy upon personal property during the four months’ period preceding the filing of a petition in involuntary bankruptcy, under a judgment that itself created a lien upon the debtor’s real property more than four months prior to such filing, the kind of lien that is denounced in § 21 (a) (3) ? At the outset, it is well to recall the three elements that go to make the act of bankruptcy condemned by the clause in question. In the oft-quoted case of Citizens Banking Co. v. Ravenna Nat. Bank, 234 U.S. 360, 364, 365, 34 S.Ct. 806, 808, 58 L.Ed. 1352, those elements are thus stated: “Looking at the terms of this provision, it is manifest that the act of bankruptcy which it defines consists of three elements. The first is the insolvency of the debtor; the second is suffering or permitting a creditor to obtain a preference through legal proceedings; that is, to acquire a lien upon the property of. the debtor by means of a judgment, attachment, execution or kindred proceeding, the enforcement of which will enable the creditor to collect a greater percentage of his claim than other creditors of the same class; and the third is the failure of the debtor to vacate or discharge the lien and resulting preference five days before a sale or final disposition of any property affected. Only through the combination of the three elements is the act of bankruptcy committed. Insolvency alone does not suffice, nor is it enough that it be coupled with suffering or permitting a creditor to obtain a preference by legal proceedings. The third element must also be present, else there is no act of bankruptcy within the meaning of this provision.” [Italics our own] See also In re D. F. Herlehy Co. D.C., 247 E. 369, 373, 374. While the clause under discussion has been amended since the decision in the Ravenna Bank case, supra, for the purposes of the instant case the language used in that decision is apposite. It will be observed that it is the creation,, the obtaining, the acquisition of a lien within the statutory period that must not be permitted. The' continuation of a lien that was created more than four months before the filing of the petition is not denounced. In Globe Bank & Trust Co. v. Martin, 236 U.S. 288, 299, 35 S.Ct. 377, 381, 59 L.Ed. 583, the court said: “The difference, having the provisions of the act in view, between the beginning of a proceeding to assert liens that existed more than four months before the filing of the petition in bankruptcy, and the attempt to create them by attachment and other proceedings within four months, has been recognized in decisions of this court.” [Italics our own] The importance of the time of creation of a lien in determining whether or not the permitting of it is condemned by the statute was well emphasized by Judge Lowell in Re Blair, D.C., 108 F. 529, 530: “Under some circumstances, all liens obtained through legal proceedings are avoided, in whatever part of the suit or by whatever form of proceeding they are created. If the lien is created by the levy, then the lien of the levy is avoided; if created by the judgment, then the lien of the judgment is avoided; if created by the attachment, then the lien of the attachment is avoided; but, if the lien created by the attachment is saved, that lien may be enforced by appropriate proceedings, even though such proceedings include a judgment and levy made within the limited time.” [Italics our own] The decision in Re Blair was cited with approval in the leading cases of Metcalf v. Bárker, 187 U.S. 165, 174, 23 S.Ct. 67, 47 L.Ed. 122, and Straton v. New, 283 U.S. 318, note page 326, 51 S.Ct. 465, note page 468, 75 L.Ed. 1060. See also 1 Remington on Bankruptcy (Fourth Edition), § 150.70, p. 242, et seq.; id., 1942 Supplement, § 150 and note, pp. 68-69; id., Vol. 4, § 1889, p. 930. Counsel have not cited any decision that is squarely in point. The books, however, are not entirely barren of precedents. Perhaps the most lucid statement of the rule that we regard as controlling in this case is to be found in Re Bailey, D.C., 144 F. 214, 215. In that case Judge Wolverton, of the United States District Court of Oregon, used the following language: “A judgment itself does not necessarily constitute a lien upon any property, unless made so by statute. Usually, as it respects personal property, it only becomes a lien by virtue of an execution and a levy thereunder. From the time of the levy, the lien is deemed to attach, and not before. Collier on Bankruptcy (4th Ed.) p. 419. It can make no difference, therefore, in this case, that the judgment was obtained long prior to the filing of the petition in bankruptcy. The levy was made some time prior to August 1, 1903, and less than four months preceding the filing of such petition.” ■ Thirty years after the decision in Re Bailey was handed down, it was cited with approval on this same point by the United States Circuit Court of Appeals for the Second Circuit. In Adler v. Greenfield, 83 F.2d 955, 956, the court said: “It makes no difference that the judgment was obtained more than four months prior to the filing of the petition in bankruptcy. The judgment alone gives no lien against the debtor’s personal property until the execution against it is delivered to the proper officer to be executed. New York Civil Practice Act, § 679. Here the property was transferred to the bankrupt, within the meaning of the statute, and since the levy and sale were made within the four months preceding the bankruptcy, it was voidable by the trustee. [Cases cited]”. Again, in Nogi v. Greenwood, D.C., 1 F.Supp. 60, 62, we find the following language: “A judgment is not a lien on personal property of the debtor; it is only the enforcement of such judgment that can possibly create a preference. The mere entry of judgment cannot.” And in a more recent case we find the same principle thus succinctly stated: “In the case of judgments, judgment creditors obtain no lien against personal property until execution and levy.” In re Richenell Fabric Mfg. Co., Inc., D.C., 31 F.Supp. 645, 647. The date of the levy fixes the date when the lien is created. So in the instant case, Mrs. Christensen obtained no lien on the appellee’s personal property affected by the levy of June 6, 1941, until a deputy sheriff of McKinley County actually levied execution upon that property, as reported by him in his amended return of execution. The judgment that the creditor had obtained in 1937 operated automatically as a lien only upon the real property of the appellee. As far as the specific personal property in question is concerned, a judgment lien was not dormant, not quiescent, not in a state of suspended animation: it simply did not exist. The very language of § 21 (a) (3) shows that it contemplates the possibility of the creation of a lien on part of the property of a debtor, while the rest of his estate, both real and personal, may remain unencumbered. The debtor, while insolvent, is forbidden to permit any creditor to obtain a lien upon “any” of his property, without discharging “such” lien at least five days before the date set for the sale of “such” property. 1 Collier on Bankruptcy, Fourteenth Edition, § 3.310, p. 454. Lest the foregoing paragraph be thought to state a truism, it should be remembered that the appellee insists that once a lien is “obtained upon any property of the debtor through legal proceedings * * * wherein the judgment has become a lien”, and the four-month period has expired, “then the right to have the procurement of a lien upon such judgment as an act of bankruptcy has been exhausted.” Counsel cite no authorities supporting this theory of “exhaustion”. Perhaps this statement in the brief embodies the fallacy upon which, as we think, the appellee’s argument is based. One cannot “exhaust” what has never existed. Until the levy of June 6, 1941, there never was imposed upon the appellee’s personal property any lien whatsoever resulting either directly or indirectly from the Christensen judgment. Counsel for the appellee devote one-third of their brief to a quotation from this court’s opinion in the case of Northwestern Pulp & Paper Co. v. Finish Luth B. Concern, 51 F.2d 340, 342-345. That opinion has been widely cited in the books, and we are in complete accord with the conclusions arrived at therein. The facts in the Northwestern Pulp case, however, were quite different from those that now confront us. The following excerpts from that opinion, which the appellee seems to have overlooked, make clear at once the essential difference between the two cases: “The preference complained of is alleged to be that the respondent allowed Thomas and Meservy, one of its creditors * * * to secure a judgment by default in the circuit court of Multnomah county, Ore.; allowed said creditor to secure an execution on the judgment on all of the respondent’s timber lands. * * * “In the amended petition, however, the creditors attempted to set forth an additional act of bankruptcy. They alleged, in substance, that the respondent suffered judgment to be entered against it in favor of the Pacific Coast Credit Association on September 21, 1929; that said judgment was entered on the docket of the circuit court of Clatsop county * * *; and that a sale under execution out of said court was had. * * * “It will be seen that both judgments against the alleged bankrupt were docketed and therefore, according to the law of Oregon, became valid liens, long before the four-month period had commenced to nm. Section 2-1601, Oregon Laws, 1930 Compilation.” [Italics our own.] 51 F.2d at pages 341, 342. There is no suggestion in that case that any personalty was seized in the executions, there levied. In fact, the record is affirmatively otherwise. The opinion itself, as we have seen, states that the first execution was on timber lands; and the transcript in that case discloses that the amended petition alleged that, in the Pacific Coast Credit Association litigation, the respondent “permitted execution to issue out of said circuit court and a large amount of real property, to wit, more than A50 acres,, to be sold under said execution,” etc. Thus we see at once that the case most relied ttpon by the appellee does not apply to the situation here presented. It is interesting to note that the learned judge below at first adopted a view of law which was in accord with our conclusions herein, and that counsel for the appellee agreed with him. This can be gleaned from the following colloquy: “The Court. Under your theory automatically when her judgment was secured it became a lien upon her real property. “Mr. Casey. Yes. “The Court. All right. But if it did not become a lien on her personal property, the mere fact that the lien was impressed on her real property would not destroy or would not be the starting point for the rights as to a lien on personal property which could not arise until a levy later on. “Mr. Casey. I agree with you there.” [Italics our own.] But counsel proceeded “to go a step further” and to attempt to construe the legal philosophy upon which the clause in question is based. Since we have already fully set forth the appellee’s contentions, it is-not necessary to summarize them further. Suffice it to say, we believe that at that point counsel fell into error, and carried, the learned judge with him. Accordingly, we hold that the court below should have accepted the appellants’ offer of proof, and should have permitted them to introduce evidence tending to show that, within the statutory four-month period, the appellee, while insolvent, permitted a judgment creditor to levy upon her personal property and failed to discharge the lien thus acquired within thirty days from the date thereof or at least five days before the date of sale. The judgment is reversed and the case is remanded for further proceedings not inconsistent with the views expressed in this opinion. Reversed and remanded. At random, we may mention: California (C.C.P.1931, § 674; C.C. § 3057; Johnson v. Gorham, 6 Cal. 195, 65 Am.Dec. 501; Balzano v. Traeger, 93 Cal.App. 640, 643, 644, 270 P. 249; 11 Cal.Jur. § 24, p. 69, and 15 Cal.Jur. § 235, pp. 217-218); Florida (Claude D. Reese, Inc., v. United States, 5 Cir., 75 F.2d 9); Michigan (3 Compiled Laws 1929, § 14541 and annotation thereto); New York (In re New Lots Sash & Door Corporation, D.C., 3 F.Supp. 570; Elkay Reflector Corporation v. Savory, Inc., 2 Cir., 57 F.2d 161, 162; New York Civil Practice Act, § 679); Oregon (Code of 1930, § 2-1601). Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:

songer_genresp1

B

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. John P. O’CONNELL, R. A. Gallo and Charles Doyle, etc., et al., Plaintiffs-Appellees, Wayne W. Delaney, Dorrence E. Neu, Glen L. Thompson and John A. Bish, etc., et al., Intervenors-Plaintiffs-Appellees, v. ERIE LACKAWANNA RAILROAD COMPANY, a corporation, Defendant, and Brotherhood of Railroad Trainmen, an Unincorporated Association et al., Defendants-Appellants. No. 244, Docket 31809. United States Court of Appeals Second Circuit. Argued Jan. 3, 1968. Decided March 5, 1968. Lee Leibik, Chicago, 111. (Ruth Wey- and, Chicago, 111., on the brief), for plaintiffs-appellees and intervenorsplaintiffs-appellees. Arnold B. Elkind, New York City, for defendants-appellants. Before LUMBARD, Chief Judge, MOORE and FRIENDLY, Circuit Judges. LUMBARD, Chief Judge: Defendants appeal from a judgment which found strict union shop clauses in a railroad collective bargaining agreement void and enjoined the appellants from requiring membership in the appellant union as a condition of continued employment. Appellees successfully argued on motion for preliminary injunction before Judge Herlands, 268 F.Supp. 397 (S.D.N.Y.1967), and on motion for summary judgment and a permanent injunction before Judge Palmieri, that the union shop clause appellants negotiated with the railroad violates the clear language of Section 2, Eleventh of the Railway Labor Act, 45 U.S.C. 152, Eleventh, and that the union and railroad could not lawfully condition employment upon membership in appellant union even though the union is the sole bargaining agent for all of the railroad’s employees. Jurisdiction is based upon 28 U.S.C. § 1337 and the Declaratory Judgment Act, 28 U.S.C. § 2201. Appellants concede that if the words of Section 2, Eleventh of the Railway Labor Act are given their natural meaning, the agreement is invalid. However, they ask the court to avoid “the melancholy irrationalism of interpreting subsection (c) literally.” We agree with Judge Herlands that there is no compelling indication of legislative intent contrary to the clear words of the statute, nor are the results of construing the words as they were written so absurd as to require the strained construction for which appellants contend. We affirm. The suit was brought by the Switch-men’s Union- of North America, AFL-CIO, and three yard service employees of the Erie Lackawanna Railroad Company on behalf of the more than 500 members of the Switchmen’s Union employed by the Erie Lackawanna against defendant-appellant Brotherhood of Railway Trainmen and Erie Lackawanna. Prior to the merger of the Delaware, Lackawanna & Western R.R. Co. and the Erie Railroad in 1960, plaintiff Switch-men’s Union had been the recognized bargaining representative of the yard foremen, helpers and switch-tenders employed by the Lackawanna Railroad. Appellant Brotherhood represented these same crafts and classes on the Erie Railroad. Following enactment of the Union Shop Amendment to the Railway Labor Act in January 1951, both unions entered union shop contracts with the railroads with which they had collective bargaining agreements. They incorporated into the contracts the language of Section 2, Eleventh of the Railway Labor Act as amended, 45 U.S.C. 152, Eleventh (1964), and construed the union shop provisions so that membership in either Switchmen’s Union or Order of Railway Conductors satisfied the membership requirement of the Brotherhood’s contract and membership in the Brotherhood satisfied the membership and requirement of the Switchmen’s contract. When the two railroads merged in 1960, the National Mediation Board conducted an election among all the yard service employees of the merged railroads. The Brotherhood won from the Switchmen’s Union by 43 votes out of a total of 1943 votes cast. In a representation election in November 1967 the Brotherhood received 941 votes to the Switchmen’s Union’s 695. From 1960 until March 1967, appellant Union and defendant railroad construed and applied the union shop provisions of the contract so that membership in either the Switch-men’s Union or Order of Railway Conductors satisfied the membership requirement. On March 14, 1967 the Erie Lackawanna and appellant entered a collective bargaining agreement which provided: “It is agreed, as a condition of continued employment, that within sixty calendar days following the beginning of such employment, all conductors, ticket collectors, baggagemen, and trainmen of the Erie Lackawanna Railroad Company, former DL&W District, yard service employees engaged in yard service in the New York Terminal Yards * * * represented by the Brotherhood of Railroad Trainmen (Eastern District) shall become and remain members of the said Brotherhood: Provided, that this agreement shall not require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member or with respect to employees to whom membership has been denied or terminated for any reason other than the failure of the employee to tender the periodic dues, initiation fees and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership in the Brotherhood of Railroad Trainmen.” On April 4,1967 the same parties entered a similar contract with respect to employees of the Erie District requiring them to become and remain members of appellant union as a condition of continued employment. In granting a preliminary injunction against enforcement of this union shop provision, Judge Herlands found that the union shop agreements entered in 1967 violated the Railway Labor Act because they failed to permit employees to satisfy the membership requirements of the contract through membership in any union national in scope admitting to membership employees within the crafts or classes covered by the First Division of the National Railroad Adjustment Board. 268 F.Supp. 397 (SDNY 1967). After the preliminary injunction was granted, the Order of Railway Conductors and Brakemen and four of its members suing on behalf of the more than 225 members of the Order employed by the Erie Lackawanna were granted leave to intervene. On July 25, 1967, Judge Palmieri granted plaintiffs’ motion for summary judgment and subsequently issued a permanent injunction. He denied defendants’ cross-motion for summary judgment and entered judgment for plaintiff on appellant’s counterclaim. We believe that the legislative history of the section shows that it was meant to permit membership in any union national in scope admitting to membership employees within the crafts or classes covered by the First Division of the National Railroad Adjustment Board to satisfy the union shop requirement of a contract pursuant to section 2, Eleventh of the Railway Labor Act. The Seventh Circuit recently has reached the same conclusion, Birkholz v. Dirks, 391 F.2d 289 (7th Cir. Feb. 12, 1968). In 1934 the railway unions agreed to amendments to the Railway Labor Act which prohibited all union shop agreements in order to reduce the strength of company unions. S.Rep.No. 2262, 81st Cong., 2d Sess., pp. 2-3 (1950); U. S. Code Congressional Service 1950, p. 4319; Hearings on H.R. 7789 before Committee on Interstate and Foreign Commerce, 81st Cong., 2d Sess., pp. 3-4, 7-8, 16-17 (1950). See Pennsylvania R. R. Co. v. Rychlik, 352 U.S. 480, 489, 77 S.Ct. 421, 1 L.Ed.2d 480 (1957). By 1950 with the virtual elimination of company unions, the situation had changed so that twenty-one railway labor organizations, acting through the Railway Labor Executives Association, sponsored a bill to permit railway unions to enter union shop agreements similar to those authorized under the National Labor Relations Act, 29 U.S.C. §§ 157, 158. The bill which was originally introduced, S. 3295, 81st Cong., 2d Sess., H.R. 7789, 81st Cong., 2d Sess. (1950), contained only one limitation: that the contracting labor organization must not deny any employee membership or expel him because of membership in any other labor organization. George M. Harrison, spokesman for the Association, testified that the reason for the provision was to permit an employee to retain membership in the union representing the craft or class in which he was mainly employed after temporary promotion or demotion to a different craft or class. He said: “Unlike most collective-bargaining representatives in outside industry, there are those in the railroad industry which recognize and protect the rights of employees who, because of the nature of their work, move back and forth across craft or class lines, and consequently move from the rules and working conditions of one collective-bargaining agreement to another. Good examples are those employees in the firemen’s craft or class and those in the engineers’ craft or class. The ordinary line of promotion for a fireman is to the position of engineer, and in a reduction of forces the engineer returns to a fireman’s position. These two crafts or classes usually are represented by different organizations. Conceivably, either the firemen’s or engineers’ organizations, or any other organization concerned with the movement of employees back and forth from one craft or class to another, could deny membership to employees who are members of another labor organization, and under a union-shop agreement endeavor to compel a carrier to discharge an employee whom the union would not accept because of his membership in another union. “[I]t was deemed advisable to make this restriction absolutely clear so that employment could not be denied because a union refused to accept an employee into membership because he belonged to another union. That is the purpose of the phrase on lines 14 and 15 of page 2.” Hearings on S. 3295 Before a Subcomm. of the Comm. on Labor and Public Welfare, 81st Cong., 2d Sess., 18-19. See also Hearings on H.R. 7789 before the Comm. on Interstate and Foreign Commerce, 81st Cong., 2d Sess., 13. However, this wording still created a problem for the railroad operating unions and they opposed the bill because it would have permitted a union to demand that employees working in the craft or class which the union represented belong to the union which was their bargaining representative as well as to the union to which they already belonged. As Mr. Justice Harlan said in Penn. RR v. Rychlik, 352 U.S. 480, 490, 77 S.Ct. 421, 426, 1 L.Ed.2d 480 (1957): “[T]he hearings on the bill revealed a problem, peculiar to the railroad industry, in establishing the union shop. Labor in this industry is organized largely on craft rather than industrial lines. Engineers, firemen, trainmen, switchmen, brakemen, and conductors, for example, each are separately organized for the purposes of bargaining. And normally different unions represent different crafts; thus, on the same railroad, firemen might be represented by the Brotherhood of Firemen and Enginemen, and engineers by the Brotherhood of Locomotive Engineers. Yet seasonal and other factors produce a high degree of job mobility for individual employees in the industry, that is, of shuttling back and forth between crafts. For example, a fireman may be temporarily promoted to engineer for a short time, or a conductor might have to serve temporarily as brakeman. Under the ordinary union-shop contract, such a change from craft to craft, even though .temporary, would mean that the employee would either have to belong to two unions — one representing each of the crafts — or would have to shuttle between unions as he shuttles between jobs. The former alternative would, of course, be expensive and sometimes impossible, while the latter would be complicated and might mean loss of seniority and union benefits.” Defendant Trainmen’s Union proposed an amendment to the bill to provide for inter-craft mobility without dual-unionism: “provided that when two or more crafts or classes are closely related as respects the work performed by each and employment rights in more than one of them are held by the same employee, or promotions from one of such crafts or classes to another are had, the requirement for membership shall be satisfied by membership in the organization of the employee’s choice, which is the duly designated or recognized craft or class representative of any one of them.” Hearings on S. 3295 at 68-69; Hearings on H.R. 7789 at 32-33. Rejection of appellant’s proposal and later adoption of the different language contained in Section 2, Eleventh (c) is a strong indication that Congress did not intend the result which appellant urges upon us. While the bill was reported to both the Senate and the House without any provision for inter-craft mobility, S.Rep. No. 2262, 81st Cong., 2d Sess. (1951), H.R.Rep. No. 2811, 81st Cong., 2d Sess. (1951), members of the committees which had considered the bills met with representatives of the Railway Labor Executives’ Association and the American Federation of Labor and agreed that when the bills were presented on the floor the committees would also offer an amendment stating, “Provided further, that no such agreement shall require membership in more than one labor organization;” 96 Cong.Rec. 15735 (Senate 1950); 96 Cong.Rec. 17052 (House 1951). In presenting this amendment to the Senate, Senator Hill stated, “An employee could belong to as many different unions as he wished to belong to. But he cannot be required to belong to one. If he belongs to one, he meets the provisions of the statute, and he cannot be required to pay dues to or to belong to more than one union.” 96 Cong.Rec. 15736. Four of the operating unions, including the Brotherhood of Railway Trainmen and the Order of Railway Conductors, opposed the bill as amended. The Switchmen’s Union supported the bill as amended. Consideration of the bill was postponed while the unions opposing the bill were given an opportunity to agree upon an amendment. 96 Cong.Rec. 16189 (1950). Three of the four unions agreed to support the bill if amended to included the language now contained in Section 2, Eleventh (c). 96 Cong.Rec. 16261, 16330 (1950). Only the Brotherhood of Locomotive Engineers opposed adoption of the bill. Their opposition was based upon a belief that the bill would “guarantee that the young man who has served his apprenticeship as a locomotive fireman shall never be required to become a member of the Brotherhood of Locomotive Engineers.” 96 Cong.Rec. 17052 (1951). On December 7, 1950 Senators Taft and Hill offered the amendment drafted by the Brotherhood of Locomotive Firemen and Enginemen, the Order of Railway Conductors and Brotherhood of Railroad Trainmen and it was adopted by the Senate the same day. 96 Cong.Rec. 16268 (1950). Senator Holland noted that the debate over the amendment had given notice to the Senate that the amendment made membership in any union among the operating brotherhoods sufficient. 96 Cong.Rec. 16322 (1950). The Senate passed S. 3295, as amended, on December 11, 96 Cong.Rec. 16378 (1950). On January 1, 1951 the House agreed to consider S. 3295 in place of H.R. 7789, a similar bill. The debate in the House makes it clear that the Representatives understood the bill to make membership in any of the unions sufficient. Representative Scott, a member of the Interstate and Foreign Commerce Committee, said, “[The bill] provides that in transportation groups such as engineers, firemen, and so forth, membership in any organization, national in scope, which accepts such employees as members shall fulfill requirements of union membership.” Representative Harris, who served as spokesman for the House Committee, explained the history of the Senate amendment and stated that it “leaves to the individual employee in the operating service the choice of operating union to which he will belong, and this specifically resolves any doubt concerning a possible requirement of dual membership.” 96 Cong.Rec. 17059 (1951). And Congressman O’Hara endorsed the statement of the Brotherhood of Locomotive Engineeers that the amendment would mean that an Engineer would never have to join the Engineer’s Union. 96 Cong.Rec. 17052 (1951). Neverthless appellants argue that the Supreme Court has limited the application of the proviso to situations where both unions are bargaining agents for crafts or classes of employees on the same railroad. We do not consider the language in Pennsylvania R. R. Co. v. Rychlik, 352 U.S. 480, 77 S.Ct. 421, 1 L.Ed.2d 480 (1957) which appellant relies upon to be dispositive. The Court held that “Section 2, Eleventh (c) allows alternative union membership only in those unions which have already qualified under Section 3, First of the Act, as electors of the union representatives on the National Railroad Adjustment Board, and not membership in any union which happens to be, as a matter of fact, national in scope and organized in accordance with the Railway Labor Act.” 352 U.S. at 485, 77 S.Ct. at 424. The issue of the scope of Eleventh (c) as applied to unions qualified under Section 3, First, of the Act was not before the Court. It only decided that membership in a union which was not so qualified did not satisfy the union shop provisions of the Act. However, appellant points to other language at page 489, at page 426 of 77 S.Ct. of the opinion: “[T]he sole aim of the provision was to protect employees from the requirement of dual unionism in an industry with high job mobility, and thus to confer on qualified craft unions the right to assure members employment security, even if a member should be working temporarily in a craft for which another union is the bargaining representative,” and to a statement at pages 492 and 493 at page 427 and 428 of 77 S.Ct. that, “The only purpose of Section 2, Eleventh (c) was a very narrow one: to prevent compulsory dual unionism when an employee temporarily changes crafts. The aim of the Section, which was drafted by the established unions themselves, quite evidently was not to benefit rising new unions by permitting them to recruit members among employees who are represented by another labor organization. Nor was it intended to provide employees with a general right to join unions other than the designated bargaining representative of their craft, except to meet the narrow problem of intercraft mobility.” While the Court described the section as having only one purpose, prevention of compulsory dual unionism and provision for intercraft mobility, there are two aspects to the operation of the proviso reflecting the two situations in which intercraft mobility might lead to the dual unionism problem. First, when an employee changes crafts his new craft may be represented by a different union. Under the statute the employee clearly does not have to change unions. The second situation in which the problem arises, which was not discussed in Rychlik, is when so many employees change crafts without changing unions that the bargaining agent for the craft no longer has majority membership in the craft. For example, when there are many layoffs so many engineers may be performing firemen’s jobs that there are more engineers than firemen in firemen's positions. The result might be that the Brotherhood of Locomotive Engineers will get the contracts for both firemen and engineers and the Brotherhood of Locomotive Firemen and Enginemen will no longer have a contract with the railroad. In this situation the firemen may still want to be members of the Locomotive Firemen’s Brotherhood which is their traditional craft union. The second aspect of the operation of Eleventh (c) is to permit these firemen, now a minority, to satisfy the union shop requirement by membership in their craft union, even though it is no longer their bargaining agent. The annual reports of the National Mediation Board to Congress from 1934 to 1950 show that during this period there were 544 instances on 64 different railroads in which, through demotions or promotions due to changed employment conditions or through union recruiting, a minority union in a craft achieved a majority and as a result took over the contract traditionally held by another union. It was with this history in mind that the operating unions drafted the amendment to the bill which became § 2, Eleventh (c). Obviously the amendment which the unions drafted was intended to make it clear that an employee would be able to satisfy union shop requirements by retaining membership in an operating union whether or not it was the collective bargaining agent for the craft or class in which he was working and whether or not it was the bargaining agent for any craft or class. In any event, the Supreme Court noted in its opinion in the Rychlik case, that in deciding the case it did not reach the questions which had been decided by this Court. 352 U.S. at 485, 77 S.Ct. 421. Our opinion, remanding to the district court for a finding on whether the union which Rychlik joined was “national in scope” within the meaning of the Act, was predicated upon holding that membership in any such union would satisfy the requirement of § 152, Eleventh (c). 229 F.2d 171, 174 (2d Cir. 1956). We see no reason to hold otherwise. No argument has been advanced which compels overruling of our decision in Rychlik, as limited by the Supreme Court’s holding to unions qualified under Section 3, First of the Act. We are not persuaded by the contrary holding of the Third Circuit in Rohrer v. Conemaugh & Black Lick Railroad Company, 359 F.2d 127 (1966), which the Seventh Circuit also has declined to follow, Birkholz v. Dirks, 391 F.2d 289 (7th Cir., Feb. 12, 1968). Further, the Supreme Court’s decision in Felter v. Southern Pacific Co., 359 U.S. 326, 79 S.Ct. 847, 3 L.Ed.2d 854 (1959) implies that an employee can satisfy the union shop requirement by membership in any of the recognized railroad unions for the First Division, since the Court assumed that Felter had validly changed his union membership although it was clear that he left the union which was his collective bargaining agent and it was not clear that his new union represented any of the railroad’s employees. It is true, as appellant contends, that as in the National Labor Relations Act, the purpose of the union shop is to prevent employees from being “free riders.” See International Association of Machinists v. Street, 367 U.S. 740, 760-764, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1951). But we cannot say that the scheme adopted by Congress, which permits membership in any of the unions which jointly share the duty of administering the machinery of the National Railway Labor Act, is inconsistent with that purpose. It is quite conceivable that Congress intended to implement its scheme through a system of reciprocal gains and losses among the various operating unions. While the Brotherhood of Railroad Trainmen does not collect dues from some of the employees of the Erie Lackawanna whom it represents, concededly it collects dues from employees of other railroads who are represented by other operating unions. See 367 U.S. at 764 n. 15, 81 S.Ct. 1784. We are unable to find any justification for appellant’s contention that it is entitled to a strict union shop despite the language of the Act because it is the sole collective bargaining agent for all employees on the railroad. Appellant’s cause of action for libel, pleaded in its answer as a counterclaim, was dismissed below because it “could become an issue only if the contract complained of were held to be valid as a matter of law.” We disagree. The alleged libels described the union shop agreement as a “Slave Labor Agreement” and described membership in appellant as “Dictatorship with no voice in the affairs of their Union.” No matter what the status of the union shop agreement, reference to a competing union as a “dictatorship” could constitute a libel. However, this cause of action does not arise out of the same transaction or occurrence as appellees’ claim. As a permissible counterclaim it must be supported by independent jurisdictional grounds. 6 Moore, Federal Practice par. 13.19 [1]. See Lesnik v. Public Industrials Corporation, 144 F.2d 968, 975-976 (2d Cir. 1944). We find appellant’s counterclaim lacking in this respect and affirm its dismissal for lack of jurisdiction over the subject matter. The judgment is affirmed. . Section 2 “Eleventh. Notwithstanding any other provisions of this Act, or of any other statute of law of the United States, or Territory thereof, or of any State, any carrier or carriers as defined in this Act and a labor organization or labor organization duly designated and authorized to represent employees in accordance with the requirements of this act shall be permitted— “(a) to make agreements, requiring, as a condition of continued employment, that within sixty days following the beginning of such employment, or the effective date of such agreements, whichever is the later, all employees shall become members of the labor organization representing their craft or class; * * * “(c) The requirement of membership in a labor organization in an agreement made pursuant to sub-paragraph (a) of this paragraph shall be satisfied, as to both a present or future employee in engine, train, yard or liostling service, that is, an employee engaged in any of the services or capacities covered in the First Division of Subsection (h) of Section 153 of this chapter, defining the jurisdictional scope of the First Division of the National Railroad Adjustment Board, if said employee shall hold or acquire membership in any one of the labor organizations, national in scope, organized in accordance with this chapter, and admitting to membership employees of a craft or class in any of said services; * * * Provided, however, That as to an employee in any of said services on a particular carrier at the effective date of any such agreement on a carrier, who is not a member of any one of the labor organizations, national in scope, organized in accordance with this chapter and admitting to membership employees of a craft or class in any of said services, such employee, as a condition of continuing his employment, may be required to become a member of the organization representing the craft in which he is employed on the effective date of the first agreement applicable to him: Provided, further, That nothing herein or in any such agreement or agreements shall prevent an employee from changing membership from one organization to another organization admitting to membership employees of a craft or class in any of said services.” Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

songer_geniss

G

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". AUTOMOTIVE PARTS CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 9278. Circuit Court of Appeals, Sixth Circuit. April 6, 1943. Howard Morgan Jones, of Columbus, Ohio, for petitioner. Muriel S. Paul, of Washington, D. C. (Samuel O. Clark, Jr., Sewall Key, Samuel H. Levy, and Muriel S. Paul, and pf Washington, D. C., on the brief), for respondent. Before SIMONS, HAMILTON, and MARTIN, Circuit Judges. HAMILTON, Circuit Judge. This is a proceeding for review of a decision of the United States Board of Tax Appeals (now United States Tax Court). A single issue is presented, whether the petitioner was entitled to a dividends paid credit of $25,000 under Section 26(c) (1) of the Revenue Act of 1936, 26 U.S.C.A. Int. Rev.Acts, page 836, by reason of an alleged written contract executed prior to May 1, 1936, expressly dealing with the payment of dividends within the meaning of Section 26(c). Petitioner is a corporation organized and existing under and by virtue of the laws of the State of Ohio. In October 1934, the estate of H. G. Root, deceased, owned 628 shares of petitioner’s outstanding stock and petitioner wished to acquire this stock for its treasury. In October 1934, petitioner’s president, with the knowledge and informal unrecorded consent of its Board of Directors, commenced negotiations with the American Brake-Blok Corporation to borrow from it $25,000 to be used in the part purchase of the Root shares. Petitioner obtained the written consent of the owners of two-thirds of its other outstanding stock to purchase the Root shares at $150 per share. On November 1, 1934, the Brake-Blok Corporation telegraphed petitioner’s president in reference to the negotiations for the loan that “your creditors should have protection of provision regarding future dividends of Auto Parts during period notes are outstanding.” By letter of November 2, 1934, petitioner’s president stated inter alia: “In regard to the matter of dividends, I will be perfectly willing to enter into any reasonable agreement thereon, keeping in mind the point that I have heretofore entered into obligations with friends who have advanced me money for my first purchase, said obligations totalling approximately $18,000.00, payable one-third or approximately $6,000.00 each year for three years. This figure includes the accumulated interest. “I look to dividends upon my present holdings (after the estate stock is purchased and retired) to liquidate this indebtedness. This reservation as to dividends will not affect the. status of your loan upon the figures formerly presented to you for the reason that said dividend sum has entered into my calculations since a time prior to conferring with you and was also covered in the copy of the cash budget which I mailed to you with my letter and financial statement. * * * “I would also appreciate your mailing me a copy of the agreement which you think we should enter into covering this whole transaction.” By letter of November 8, 1934, to petitioner’s president, Brake-Blok stated inter alia, “We understand the situation regarding dividends and are entirely satisfied.” The stock in question was purchased, the loan consummated from the Brake-Blok Company and applied thereon. Petitioner’s Board of Directors knew of the negotiations conducted by its president with the American Brake-Blok Corporation and the terms and conditions thereof, but no record of the knowledge of the Board of Directors or of the other stockholders was incorporated in the minutes of petitioner’s Board of Directors. However, on December 31, 1934, the Board of Directors passed a resolution authorizing the purchase of the stock at $150 per share and that the surplus of the corporation be utilized for that purpose. The members of petitioner’s Board of Directors were the sole owners of its capital stock. On December 31, 1934, petitioner, by its president, notified the American Bake-Blok Corporation by letter that petitioner’s Board of Directors had taken final action to complete the purchase of the Root stock and that they were sending by mail eight of petitioner’s notes, together with check for $50.04 interest due on the notes from December 13th to December 31st. On December 30, 1935, petitioner’s Board of Directors declared a dividend of $6,084 on petitioner’s outstanding common stock payable at the close of business December 1, 1935. The last installment on petitioner’s obligation on the Brake-Blok loan was paid on January 2, 1937. Petitioner filed its income tax return for the calendar year 1936, and claimed a dividends paid credit of $25,000 on account of the heretofore-mentioned alleged contract restricting the payment of dividends under Section 26(c) (1) of the Revenue Act of 1936. On audit and review, the Commissioner of Internal Revenue disallowed the claimed credit finding as a fact that the petitioner had not prior to May 1, 1936, executed a written contract expressly dealing with the payment of dividends within the meaning of the applicable statute and found a deficiency in taxes of $1,834.07. On appeal, the Board of Tax Appeals sustained the Commissioner. The question for our determination is whether petitioner is entitled to the credit claimed by it because it was prohibited by a contract between petitioner and the Brake-Blok Corporation from paying dividends. Section 26(c) (1) of the Revenue Act of 1936, ch. 690, 48 Stat. 1648, 26 U.S.C.A. Internal Revenue Acts, page 836, provides that a corporation shall be allowed this credit only when the distribution of a dividend would be in violation of a provision of a written contract executed by the corporation prior to May 1, 1936. The Board rested its decision on the ground that the telegrams and letters on which petitioner relies as establishing the contract were written prior to December 3rd and 8th, 1934, the first dates on which petitioner’s stockholders authorized it to purchase the shares of stock in question and on the further ground that the entire terms of the contract were contained in BrakeBlok’s letter of December 7, 1934, and that as this letter contained no statement restricting the payment of dividends, no written contract relating to dividends was made. The distinction between a definite proposal or acceptance and a mere preliminary step in the negotiation of a contract is not always easy of determination. From the nature of the subject the question whether certain acts or conduct constitute a definite proposal or acceptance upon which a binding contract may be predicated without any further action on the part of the person from whom it proceeds, or whether it constitutes a mere preliminary step which is not susceptible without further action by such party of being converted into a binding contract, depends upon the nature of the particular acts or conduct in question and the circumstances attending the transaction. The facts in the case at bar show that the intent of the parties was to make the so-called preliminary negotiations a binding part of the contract without further action. The parties expressly stated “as far as a contract goes we feel an exchange of letters can easily cover our transaction with you.” The Board of Directors of petitioner on December 31, 1934, declared a dividend of $6,084 which was approximately the amount petitioner’s president stated to the lender he would have to have in dividends to meet his outstanding obligations. On December 31, 1934, the Board of Directors of petitioner passed a resolution providing that the holders of the company’s notes the proceeds of which were used to purchase the stock in question should be permitted to attend all directors’ meetings and sit therein and that any note holder should have the right to make an audit of the company’s affairs and records at any time until said notes were paid. A binding agreement between parties may be connoted from several different writings which, when connected, show the subject matter, terms and consideration and all of the papers in the series, if not in conflict, constitute the terms of the contract. In our opinion, the telegram and letters between petitioner and its creditor, the Brake-Blok Corporation, were more than an exchange of tentative ideas or preliminary negotiations regarding a restriction on the payment of dividends and the documents are sufficiently definite and explicit to constitute a written, enforceable contract by petitioner’s creditor, -which would have been violated by respondent had it paid dividends in excess of $6,000. The order of the Board is reversed and the cause remanded for further proceedings consistent with this opinion. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:

songer_concur

0

What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who either wrote a concurring opinion, joined a concurring opinion, or who indicated that they concurred in the result but not in the opinion of the court. Lewis J. RUSKIN, Collateral Trustee, v. Charles H. GRIFFITHS, Trustee in Reorganization. No. 219, Docket 25317. United States Court of Appeals Second Circuit. Argued March 11, 1959. Decided Aug. 26, 1959. Washington, Circuit Judge, dissented in part. Paul, Weiss, Rifkind, Wharton & Garrison, New York City, Ruskin & Rosen-baum, Chicago, 111. (Simon H. Rifkind, New York City, Harry H. Ruskin, Chicago, 111., John E. Massengale, New York City, Irving Younger, Forest Hills, N. Y., of counsel), for appellant, Lewis J. Ruskin. Frederick P. Close, White Plains, N. Y. (Martin Drazen, White Plains, N. Y., of counsel), for Trustee in Reorganization, appellee. Louis J. Weinshenker, New York City (Edward A. Gorenstein, Walter Goodman, Chicago, 111., of counsel), for Richard Goodman, stockholder. Richard Goodman, pro se. Thomas G. Meeker, General Counsel, David Ferber, Asst. General Counsel, Pace Reich, Washington, D. C., Melvin Katz, Attorneys, SEC, Chicago, III., Richard V. Bandler, Special Counsel; Kiva Berke, New York City, Attorney, for Securities and Exchange Commission. Before WASHINGTON, WATERMAN, and MOORE, Circuit Judges. WATERMAN, Circuit Judge. On May 19, 1954 Lewis J. Ruskin, his wife, and the Rexall Drug Company sold all the stock of a retail drug store chain known as Ford Hopkins Company to General Stores Corporation. The purchase price was $2,800,000, of which $735,000 was to be paid in cash and the balance by notes to Ruskin and Rexall payable in installments until 1964. As security for these notes all the stock of Ford Hopkins and all the stock of Stineway Drug Company, another drug store chain owned by General Stores, was transferred to Ruskin as trustee for himself and for Rexall under a “Collateral Agreement” entered into simultaneously with the execution of the notes. Ruskin, as trustee under this agreement, had the right to elect a majority, or, after default, all the members of the Boards of Directors of these corporations. The notes were to accrue interest on principal at the rate of 4% per annum, but the collateral agreement provided that in case of an “event of default” as defined in that agreement the then total unpaid amount could be declared due and payable forthwith, and interest would then accrue upon overdue payments at the rate of 6% rather than at 4%. One “event of default” provided for in the agreement was as follows: “[I]f any proceedings before Control Date involving General or any subsidiary (other than Ford of Stineway) thereof or any successors thereto, and after Control Date involving General, Ford or Stineway or any subsidiary thereof or successors thereto, are commenced by or against such company under any bankruptcy, reorganization, arrangement, insolvency or readjustment of debt, dissolution or liquidation law or statute of the Federal Government or any state government, * * * ; then, in any such event, the holder or holders of any of the Notes then outstanding or the Trustee may, at their or his option, declare such Notes to be, and thereupon such Notes shall become, forthwith, due and payable * * * ”. The agreement also provided that the trustee was to be entitled to “reasonable compensation” for all the services he might render in the execution of the trusts and, in connection therewith, for his attorneys and counsel. This compensation was to constitute a prior lien on the trust estate and on all funds in the hands of the trustee. In October 1954 the debtor, General Stores, filed a petition for arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C.A. § 701 et seq. However, instead of accelerating the debt because' of this petition, Ruskin entered into a standby agreement with debtor, dated November 1, 1954, wherein he agreed that unless certain specified conditions occurred he would not foreclose prior to July 18, 1955. On March 7, 1955, the United States District Court for the Southern District of New York granted similar motions by a shareholder of debt- or and by the Securities and Exchange' Commission to dismiss debtor’s petition unless it was amended so as to comply with the requirements of Chapter X of the Bankruptcy Act. In re General Stores Corporation, D.C.S.D.N.Y.1955, 129 F.Supp. 801. One month later we affirmed that decision, General Stores-Corporation v. Shlensky, 2 Cir., 1955, 222 F.2d 234. On August 17,1955, Lewis J. Ruskin as trustee under the collateral agreement, Lewis J. Ruskin individually, and Rexall Drug Company notified the debtor that they elected to declare the notes “forthwith due and payable because of an event of default occurring and existing under said collateral agreement by reason of the proceedings involving General Stores Corporation under Chapter XI of the Bankruptcy Act * * * commenced by General Stores Corporation and pending to this date in the United States District Court for the Southern District of New York.” The Supreme Court of the United States affirmed our decision in General Stores Corporation v. Shlensky on March 26, 1956, 350 U.S. 462, 76 S.Ct. 516, 100 L.Ed. 726, and about one month later the debtor filed an amended petition asking for reorganization under Chapter X of the Bankruptcy Act. The district court approved the amended petition on May 1, 1956 and appointed a reorganization trustee. This appeal stems from a petition filed by Ruskin, as trustee under the collateral agreement, seeking a determination of the amount of his claim on the unpaid notes, principal and interest, and of the amount of his lien for his own and his attorneys’ compensation. Ruskin claimed unpaid accrued interest at 4% to August 17, 1955, the date of the acceleration, and 6% thereafter. As compensation for his services as trustee Ruskin sought, at the rate of $35,000 per annum, $112,715.-13 for the period October 18, 1954 to January 7, 1958. He also sought $180,-000 as compensation for his attorneys. The court below decided that the post-default interest rate should remain at 4% rather than be increased to 6%; awarded Ruskin $24,215 as total compensation for his own services as collateral trustee, and granted attorneys’ fees in the amount of $60,000. In re General Stores Corporation, D.C.S.D.N.Y.1958, 164 F.Supp. 130. The parties seem to agree that the debtor is solvent. From these several determinations Ruskin appeals. The reorganization trustee, a stockholder of the debtor, and the Securities and Exchange Commission .are all in opposition. The Claim for Increased Interest Although the contract between the parties explicitly provided that interest was to be at 6% rather than 4% .after acceleration, the district court refused to allow the additional 2% interest. Relying upon Vanston Bondholders Protective Committee v. Green, 1946, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162, rehearing denied 1947, 329 U.S. 833, 67 S.Ct. 497, 498, 91 L.Ed. 706, it held that Ruskin was not entitled to the benefit of his variable interest contract. We disagree with that holding. In Vanston the Supreme Court disallowed an indenture trustee’s claim against an insolvent debtor for interest on interest payments provided for in the trust indenture. The interest on interest accrued because the district court, pursuant to its administration of an equity receivership, had ordered both the debtor and the receiver not to pay simple interest coupons that fell due under the indenture after the court assumed jurisdiction. Even if we agreed with the court below that a Supreme Court precedent dealing with an obligation for interest on interest falling due because of an equity court’s stay order is equally applicable to a claim based upon a contractual provision for additional simple interest arising because the debtor sought the intervention of the bankruptcy laws, a question we need not now decide, we would still have to distinguish Vanston on what we find was a basic ground of that decision. In Van-ston the debtor was insolvent, and in our case it appears the debtor is solvent. In Empire Trust Co. v. Equitable Office Bldg. Corp., 2 Cir., 1948, 167 F.2d 346, we avoided a resolution of the effect of Vanston upon parties to a reorganization proceeding involving a solvent corporation, but the issue is squarely before us now, and we hold that the Supreme Court did not intend that the principle enunciated by it in Vanston, in a contest between creditors, should be applied to a contest between a debtor’s creditor and its stockholders. The Supreme Court held in Vanston that since the district court had taken over the debtor’s assets for the purpose of preserving and protecting them “pending a ratable distribution among all the creditors according to their interests as of the date the receivership began,” [329 U.S. 156, 67 S.Ct. 242] it would have been contrary to that purpose and inequitable to the junior creditors to have junior creditors suffer and the mortgage bondholders enriched because of a stay order required to further the receivership aim. This result naturally followed from an examination of the usual rules that deal with simple interest claims in bankruptcy and in reorganization proceedings, In re Wisconsin Cent. Ry. Co., D.C.D.Minn.1950, 93 F.Supp. 579, 582, affirmed United States Trust Co. of New York v. Zelle, 8 Cir., 1951, 191 F.2d 822, certiorari denied 1952, 342 U.S. 944, 72 S.Ct. 558, 96 L.Ed. 703. Thus, with respect to simple interest the Supreme Court said: “The general rule in bankruptcy and in equity receivership has been that interest on the debtors’ obligations ceases to accrue at the beginning of proceedings. Exaction of interest, where the power of a debtor to pay even his contractual obligations is suspended by law, has been prohibited because it was considered in the nature of a penalty imposed because of delay in prompt payment —a delay necessitated by law if the courts are properly to preserve and protect the estate for the benefit of all interests involved * * * Courts have felt that it would be inequitable for anyone to gain an advantage or suffer a loss because of such delay.” 329 U.S. at pages 163, 164, 67 S.Ct. at page 240. However, the Court carefully noted that this rule with respect to simple interest did not apply where the contest was between a creditor and stockholder of the debtor: “But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit payment of this additional interest to the secured creditor rather than to the debtor.” 329 U.S. at page 164, 67 S.Ct. at page 241. Since the result the Court reached stemmed from the equitable principles developed with respect to creditors’ claims for simple interest in bankruptcy and equity receivership proceedings, and since it explicitly noted that these principles favored the debtor’s creditors over its stockholders, the Court could hardly have meant that the rule it was declaring was to be applied in the case of a solvent debtor. The district court decided that a result opposite to the one we reach here is dictated by that language in the Vanston opinion which states: “It is manifest that the touchstone of each decision on allowance of interest in bankruptcy, receivership and reorganization has been a balance of equities between creditor and creditor or between creditors and the debtor.” 329 U.S. at page 165, 67 S.Ct. at page 241. It seems to us, however, that when this language is read in context it does not support the decision of the district court. It follows after a discussion of two differing situations, “To allow a secured creditor interest where his security was worth less than the value of his debt was thought to be inequitable to unsecured creditors * * * But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit payment of this additional interest to the secured creditor rather than to the debtor” 329 U.S. at page 164, 67 S.Ct. at page 240. and refers only to that discussion. See In re Realty Associates Securities Corporation, 2 Cir., 1947, 163 F.2d 387, 392 (dissenting opinion of Clark, J.), certiorari denied 1947, 332 U.S. 836, 68 S.Ct. 218, 219, 92 L.Ed. 409. Of the many cases cited to us only two seem worthy of attention. In re Schafer’s Bakeries, D.C.E.D.Mich.1957, 155 F.Supp. 902, relied upon by the district court, might be persuasive authority for the decision below if it were clear that that case involved a solvent debtor. However, there is nothing in the opinion to indicate that it did, and, since the plaintiff’s claim for interest on interest was successfully contested by an “Unsecured Creditors’ Committee,” it would seem that the debtor was actually an insolvent one. Certainly the court never pointed out whether the debtor there was solvent or insolvent, or discussed this distinction. On the other hand, in In re International Hydro-Electric System, D.C.D.Mass.1951, 101 F. Supp. 222, 224, the Massachusetts district court carefully considered this very problem when it held: “[I]t is important that IHES is not at the present time insolvent. It has assets more than sufficient to meet all claims of its creditors. No benefit will be given to the debenture holders at the expense of any other class of creditors. The burden of this payment will fall entirely on the interest of the stockholders. They cannot complain that they are treated inequitably when their interest is cut down by the payment of a sum to which the debenture holders are clearly entitled by the express provisions of the trust indenture. The situation here differs from that in Vanston Bondholders Protective Committee v. Green * * * where the payment of interest on deferred interest payments was not allowed even though called for by the trust indenture, because the payment would have reduced the share of subordinate creditors in the reorganization of an insolvent corporation.” A variable interest provision in event of a stated default such as we have here is not a penalty, nor should it be considered unconscionable. Compare Union Estates Co. v. Adlon Const. Co., 1917, 221 N.Y. 183, 116 N.E. 984, 12 A.L.R. 363, with Newburger-Morris Co. v. Talcott, 1916, 219 N.Y. 505, 510, 114 N.E. 846, 3 A.L.R. 287. It can be beneficial to a debtor in that it may enable him to obtain money at a lower rate of interest than he could otherwise obtain it, for if a creditor had to anticipate a possible loss in the value of the loan due to his debtor’s bankruptcy or reorganization, he would need to exact a higher uniform interest rate for the full life of the loan. The debtor has the benefit of the lower rate until the crucial event occurs; he need not pay a higher rate throughout the life of the loan. Undoubtedly the debtor filed its petition under Chapter XI because it believed it beneficial to itself to do so, and in a case such as this, where there is no showing that the creditor entitled to the increased interest caused any unjust delay in the proceedings, it seems to us the opposite of equity to allow the debtor to escape the expressly-bargained-for result of its act. RusJcin’s Claim for Compensation Under the Collateral Agreement Article VIII, Section 1(2) of the collateral agreement provided as follows: “Section 1. The Trustee accepts the Trust of this Collateral Agreement upon the following terms and conditions to which General and the holder and holders of the Notes secured hereby agree: ****«•«• “(2) The Trustee shall be entitled to reasonable compensation for all services rendered in the execution of the trusts hereby created, to be paid, for services prior to the existence of one or more of the events of default mentioned in Section 1 of Article VI hereof by the holders of the Notes ratably, and for services after the existence of one or more of the events of default mentioned in Section 1 of Article VI hereof, by General; and for such payment, the Trustee shall have a lien on the Trust Estate and all funds in the hands of the Trustee, in priority to the rights and claims of the holder or holders of said Notes.” Pursuant to this section Ruskin claims $112,715.13 from debtor for his services from October 18, 1954 computed to January 7, 1958, at $35,000 per annum. These services allegedly consisted of directing the policy of closing small volume or marginal stores and opening large volume self-service stores; directing the acquisition of the Wright and Lawrence chain of drug stores; directing the development of “system stores” and the placing of higher profit margin items in the rack jobbing operations in the grocery chains when the profits of the so-called “Huron division” servicing these grocery chains began to diminish because of direct drug purchases by these chains; directing the weekly meetings of “operating committees” wherein Ruskin counseled and guided the company executives; making personal visits to the offices of the subsidiaries in Chicago ten or eleven times a year for four days at a time; while at home in Arizona, keeping in constant contact with the executives and studying reports sent to him; and generally keeping in touch with industry trends and directing the companies’ policies. Looking at the question of compensation in terms of what it found were the requirements of Article VIII, Section 1(2) of the collateral agreement — i. e., that the services be rendered in the “execution of the trusts” and the compensation be “reasonable” — the district court allowed Ruskin a total of $24,215. In an order entered July 1, 1958, upon what was in effect a petition for a rehearing, the district court reaffirmed this allowance. The fixing of allowances is not only the most thankless task in all of the problems of judicial reorganization, it is also the most delicate. Scribner & Miller v. Conway, 2 Cir., 1956, 238 F.2d 905; Finn v. Childs Co., 2 Cir., 1950, 181 F.2d 431. Consequently an appellate court would be less than wise if it did not rely heavily for guidance in such matters upon the SEC which functions as a responsible and disinterested public agency, Scribner & Miller v. Conway, supra; Finn v. Childs Co., supra, and the district court whose intimate knowledge of the whole reorganization gives it a peculiar advantage, Johnson v. Carolina Scenic Stages, 4 Cir., 1957, 242 F.2d 263; Finn v. Childs Co., supra; Milbank, Tweed & Hope v. McCue, 4 Cir., 1940, 111 F.2d 100. And see Surface Transit Inc. v. Saxe, Bacon & O’Shea, 2 Cir., 266 F.2d 862. In this case the rate of compensation recommended by the SEC would have entitled Ruskin to a sum somewhat less than $20,000. Since this is approximately $5,000 less than the district court awarded him it would require a strong showing by Ruskin in order for us to award him an additional sum, or to remand this case to the district court for reconsideration. While the district court pointed out that [164 F.Supp. 142] “the services of the collateral trustee to some extent contributed to the stabilization in management of the two subsidiaries concerned,” and that “in part the success of these corporations during the period in question came from attention which the collateral trustee’s control effected,” it found that there was no convincing evidence to show that all or even a large portion of Ruskin’s activities were necessary to properly execute the purpose of his trust — i. e., the purpose of seeing that the note holders were properly secured. Also the court found that there was no substantial evidence to indicate that an executive capable of conducting the necessary supervision of the two subsidiaries was not in their employ, or could not have been hired by them, and therefore services rendered by Ruskin for which he sought compensation as a trustee were unnecessary. After an examination of the record we are not convinced that the district court’s findings and award are clearly erroneous. Claim for Compensation for Attorneys' Fees Ruskin’s last contention on this appeal is that the district court did not allow him sufficient compensation for attorneys’ fees. His claim for $180,000 for the period between October 15, 1954 and December 13, 1957 was predicated under Section 1(3) of Article VIII of the collateral agreement. That section provides : “The Trustee may employ agents, attorneys and counsel in the execution of said trusts, who may also be the attorneys and counsel of the holder or holders of said Notes, and of Ford and Stineway, or their successors, or any one or more of them, and the reasonable compensation of the Trustee’s attorneys and counsel and of any other person as the Trustee may employ in the administration and management of the trusts hereunder, and all other reasonable expenses necessarily incurred or actually disbursed hereunder, General agrees to pay to the Trustee on demand; and for such payment, the Trustee shall have a lien on the Trust Estate, and on all funds in the hands of the Trustee, in priority to the rights and claims of the holder or holders of said Notes.” $80,000 of the claim was for the Chicago law firm of Ruskin & Rosenbaum and $100,000 was for the New York firm of Paul, Weiss, Rifkind, Wharton & Garrison. After careful consideration of the items of Ruskin’s claim and upon the advice of the SEC, the district court allowed Ruskin & Rosenbaum the sum of $5,000 for the period between October 15, 1954 and April 30, 1956, and made a joint award of $55,000 for the combined services of Ruskin & Rosenbaum and Paul, Weiss, Rifkind, Wharton & Garrison for the period from on or about April 30, 1956 to December 15, 1957. Ruskin contends that the district court committed error in making these awards because it applied a wrong standard in evaluating counsel’s services. He argues that the court rewarded these two firms only for services that brought forth actual benefits accruing to the debt- or’s estate rather than for the services which, pursuant to contract, they rendered to him as collateral trustee. We find nothing in the district court’s opinion which would indicate that it applied the standard which Ruskin contends it did apply. Rather, all the indications we find are to the contrary. Thus: “There is inadequate proof to indicate that the extensive time involved in preparing lengthy briefs was necessary for the protection of the collateral trustee and his trust * * * ” 164 F.Supp. at page 145. “Here, we are concerned with a trust in which the fundamental premise on which the allowance is made must be based upon what is fair and reasonable under the circumstances of the particular case. The necessity of the services depends in the first instance upon whether or not the proceedings initiated were reasonably essential to the protection of the trust. The amount allowed should bear a reasonable relationship to the demands of the situation.” 164 F.Supp. at page 146. The district court fully realized that it was making an award under a contract between the debtor and Ruskin. It was also aware, and rightly so, that the award would be paid from a reorganization debtor’s assets. Newman & Bisco v. Realty Associates Securities Corp., 2 Cir., 1949, 173 F.2d 609; Butzel v. Webster Apartments Co., 6 Cir., 1940, 112 F.2d 362. Consequently, in order to avoid that “vicarious generosity” which the courts have so often deplored, Finn v. Childs Co., 2 Cir., 1950, 181 F.2d 431, it considered in detail the services rendered by the two firms. In making the allowances it found and properly took into account that there was some duplication of services rendered by the New York and Chicago firms, Finn v. Childs Co., supra; Newman & Bisco v. Realty Associates Securities Corp., supra; that certain of the services rendered related to matters that did not need legal action or require advice of counsel; that the issues dealt with by counsel were not complex, Newman & Bisco v. Realty Associates Securities Corp., supra; In re McGrath Mfg. Co., D.C.D.Neb.1951, 95 F.Supp. 825; that approximately half of the recorded time spent by the New York firm was contributed by a junior associate, Finn v. Childs Co., supra; that during the period for which compensation was being sought for them by the collateral trustee, the Chicago firm was receiving an annual retainer of $15,000 from Ford Hopkins. Ruskin does not demonstrate that these findings of the district court were clearly erroneous. Nor does he show that the court’s award made on the basis of those findings, an award in accord with the recommendation of the SEC, was an improper one. With respect to SEC recommendations in such matters, we said in Finn v. Childs Co., supra, 181 F.2d at page 438: “[T]he figures presented by the S.E.C. are not ‘mere casual conjectures,’ but are ‘recommendations based on closer study than a district judge could ordinarily give to such matters.’ Frank, supra, 18 N.Y.U.L. Q.Rev. 317, 1941. We agree with District Judge Kirkpatrick’s apt statement ‘that the Commission is about the only wholly disinterested party in the proceeding and that, while it may not be entirely familiar with “the problems of making both ends meet in a law office” referred to by counsel, its experience has made it thoroughly familiar with the general attitude of the Courts and the amounts of allowances made in scores of comparable proceedings.’ In re Philadelphia & Reading Coal & Iron Co., D.C.E.D.Pa., 61 F.Supp. 120, 124.” We cannot say that here the broad discretion with which the district judge, in the first instance, must of necessity be empowered in this type of case, see Johnson v. Carolina Scenic Stages, 4 Cir., 1957, 242 F.2d 263, has been abused. Accordingly, we affirm that portion of the district court’s order disposing of the claims of the collateral trustee for compensation for himself and for allowance with which to compensate his attorneys; we reverse the portion of that order that denies interest on the unpaid installment notes at a rate in excess of 4% per an-num from August 17, 1955 forward; and the cause is remanded for further proceedings not inconsistent with this opinion. Question: What is the number of judges who concurred in the result but not in the opinion of the court? Answer:

songer_casetyp1_7-3-4

G

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

songer_typeiss

C

What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. GREENE et al. v. O’CONNOR et al. No. 85. Circuit Court of Appeals, Second Circuit. Dec. 6, 1937. Joseph R. Truesdale, of New York City (Murray C. Bernays, Abraham Friedman, and Raymond H. Berry, all of New York City, of counsel), for appellants. Hays, Wolf, Kaufman & Schwabacher, of New York City (Wolfgang S. Schwabacher, Solomon I. Sklar, and Sydney C. Weinstein, all of New York City, of counsel), for appellees Rubenfeld and Sklar, executor. Alexander D. Smith, of New York City (Maurice Smith, of New York City, of counsel), for appellee O’Connor. Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges. L. HAND, Circuit Judge. This is an appeal from a decree dismissing on the merits a bill in equity filed by the receivers of the Metropolitan Dairy Products, Inc., against five individuals and two corporations, to rescind a sale by that company to the defendants, Rubenfeld and Sobel — together with one, Leiter, not a party- — of all the shares of stock of two companies, the corporate defendants. (It will be convenient to disregard the plaintiffs, and to speak of the Metropolitan Dairy Products, Inc., as itself the plaintiff, and of the two defendant companies, whose shares were sold, as the Middletown Companies.) The equity of the bill is that Leiter and O’Con-nor, who were directors of the. plaintiff, disposed of the Middletown shares in dereliction of their fiduciary duty, and that Rubenfeld and Sobel, by confederating with them, rendered themselves equally liable to an accounting. The facts as found by the judge were as follows. For some time before 1927 Rubenfeld, Leiter and Sobel owned all the Middletown shares; somewhat later they took in one, Max, and in October, 1928, all but Leiter sold out their interests to Klein, Goodman and Abrams, both companies being then valued at $388,-000. In April, 1929, Klein, Goodman and Abrams in turn sold their shares to O’Con-nor at the same figure; whereupon he and Leiter, who had thus become the sole owners, organized the plaintiff, to which they assigned the Middletown shares in exchange for 100,000 of the plaintiff’s shares; O’Con-nor taking 63,750 and Leiter 36,250. Leiter became the president, and managed the business; O’Connor, a promoter, was vice-president. .In the following July the plaintiff, through O’Connor, bought the shares of another dairy, Tietjen & Steffen, valued at $167,670, which it paid for with 50,000 shares of its stock; in August it contracted to buy the assets of a retail dairy known as the Kent Model Dairy for $100,000. Through Leiter’s long experience in the business, he-had acquired a personal goodwill among the customers of the Middletown Companies, though it does not appear that this was while he was acting as their director or officer. Because of this good-will his possible competition was feared in case he left the companies, though he was proving unsatisfactory to O’Connor, who neither liked nor trusted him. By November the companies were short of funds, and Rubenfeld and Sobel wished to reacquire them; therefore, on November 21st with Leiter, whom they needed for the reason just given, they submitted an offer to the plaintiff — to be accepted by December 10th— to buy the Middletown shares for $343,000 (with certain adjustments not necessary to mention); $160,000 payable in cash, $80,-000 by a demand note, and the balance in time notes, running over about two and a half years. The ninth article of this offer made it a condition that “satisfactory arrangements” should be “made between Howard O’Connor and the said mentioned- Isador Leiter for the payment to the said Isador Leiter of his share or interest in Metropolitan Dairy Products, Inc. and the return to him simultaneously with the passing of title herein to the businesses mentioned of the said demand note for $80,000.” Although the offer lapsed on December 10th, apparently the negotiations were not dropped; for by December 18th one, Garey— O’Connor’s lawyer, who had been retained not long before — had agreed with Leiter upon $5.20 as the price for his remaining shares in the plaintiff, 27,500. O’Connor had been selling the shares at much higher figures ranging from $14 down to $6.25, and Garey had had difficulty in beating down the price, but after this figure had been agreed on, Leiter, Rubenfeld and Sobel made a new offer to the plaintiff, which came before a meeting of the board of directors on December 23d. They were to pay $200,000 in cash (subject to adjustments), and Leiter was to “donate” his shares in the plaintiff as an “inducement” to the bargain. Leiter was not present at the meeting and did not vote, and Garey testified that the directors were fully informed of the original offer, of the price at which Leiter’s shares were appraised, of the necessity of selling the properties because, the earnings had been decreasing, ■of the lack of confidence in the integrity .and ability of Leiter, and of the necessity of his continued connection with the Middletown Companies because of the danger to them from his competition. The directors, so informed, accepted the proposal, and .appointed a special committee to prepare the contract, which was completed by January ,2d. One, Weinberg — the lawyer for Rubenfeld, Sobel and Leiter — insisted that the ■shareholders should assent, and a meeting was called on January 14th for the 24th, •at which the minutes of the directors’ meeting of the 23d, the contract of January 2d and Leiter’s letter were read. The directors’ •minutes did not record the original offer of November 21st, and only stated that a cash price of $200,000 together with Leiter’s “donation” of his shares had been offered for the Middletown shares. The shareholders confirmed the contract by a large vote, and their action was later ratified on April 17th .at the annual shareholders’ meeting. On .these findings the judge held that all facts relevant to the transaction had been disclosed, and that the plaintiff had not been overreached. The only debatable question of fact is as to the completeness of the disclosure at the directors’ meeting on December 23d, and as to how the parties had in fact understood the ninth article of the offer of November 21st. As to both the judge accepted the word of Garey, and although there was contrary testimony, we see no reason to disturb the finding. Indeed, it seems to us for the following reasons that the documentary evidence confirmed it. The plaintiff’s case presupposed that the original offer was better than the contract, and was for that reason suppressed; that •was its chief count against the transaction as a whole. .If it was not in fact better, the argument disappears, for there was no •reason to suppress what would have been harmless if disclosed. The first question is therefore what the ninth article really meant; The plaintiff says that O’Connor was not only to make “satisfactory arrangements * * * for the payment” of Leiter’s interest, but was to buy it himself; and that he would have had to pay $80,000 into the treasury in order to “return” the note. If so, the article was drawn very badly, for it was totally unnecessary to “return” the nóte; Leiter could have paid it — or, indeed, any of the other notes — as soon as he received the cash. The words do not naturally mean that O’Connor should take it up, and it is curious, if he was to do so, that his duty should have been so ill defined. True, it is difficult to see why the note should have been given if the plaintiff was to “return” it at once; but it is equally difficult to see why it should have been given, if O’Connor must pay it and “return” it. However, so far as the language was equivocal, the parties cleared it up in O’Connor’s letter of January 4, 1930. That was written, as it shows on its face, to allow the buyers to take $343,000 as their tax “basis,” if they sold the Middletown shares; it said that the “real deal” was for $343,000 in cash, and by “real deal” it of course meant not the original offer, but the actual sale. Confessedly upon the sale Leiter’s shares were accepted instead of cash, and the only possible conclusion is that the parties considered them cash. If they did so then, they presumably did so in the original offer, and the ninth article meant what Garey said everyone agreed that it meant. A reason why the contract of sale, unlike the offer, did not state the consideration as wholly cash is reasonably explained by the fact that in the plaintiff’s income tax return, Leiter’s shares were valued not at $5.20, but at about $3.19, that being their cost on the corporate books; and that in this way the whole transaction was made to show a loss, and was so accepted by the taxing officers. The formal change to a sale for $200,000, accompanied by a collateral promise by Leiter to “donate” his shares as an “inducement” from a sale for $343,-000, of which Leiter’s shares were to be taken at an agreed price, was of no moment whatever, once the share price was fixed at $5.20. From all this we conclude that the sale was in substance the same as the offer, that there was no motive to conceal it, and that the judge’s finding— which might indeed stand without it — was clearly right. Yet although the original offer was disclosed, it does not follow that everything else was, or that the valuation of Leiter’s shares was justified. Their book value was not $143,000. The balance sheet of the plaintiff after the Middletown shares are deducted is in evidence; it shows assets of $558,000 and liabilities of $41,000, or a net value of $517,000, which gives to each of the 150,000 shares a book value of about $3.-25, and creates an excess allowance of nearly 54,000 for Leiter’s 27,500 shares. The defendants justify this by saying that the shares were worth more than their book value, that it was desirable to get rid of Leiter, and that the Middletown shares, owing to his power effectively to compete with the companies, had the agreed value only in case he went along with them. It is true that the shares had always sold for more than $3.25; indeed, even after the October slump one, Claggett, was still offering them for $14.50 a share, though it does not appear that he sold any. Moreover, in January, 1930, the market had somewhat recovered from its first sharp drop and it may be that $5.20 was still a possible price. But that aside, it was legitimate for the plaintiff to pay a substantial sum to get rid of Leiter, if it could not safely-discharge him; and in fact it could not safely discharge him. So far as concerned O’Con-nor, we cannot see any possible answer to this, nor can we say that the allowance— even assuming that the value of the plaintiff’s shares was no more than their book value — was unfair or beyond what directors might honestly fix. The situation might be different as to Leiter, who by hypothesis profited by his potential ability to compete with the Middletown Companies. It is true that he is not a party, but, as we have said, the bill charges that Rubenfeld and Sobel, who actually divided the profit with him, became confederates in this abuse of his position, and are charged with the same liability as he. That depends upon whether it is improper for a corporate officer to profit by a surrender of his power to make competitive use of a good-will which is his own property. It is of course true that a fiduciary may not compete with his beneficiary (Restatement of Trusts § 170 Comment a); but so far as we can find, that duty ends .with the relation, and we can see no reason why it should not, at least if the good-will was not acquired during, and by means of, his position, so as itself to be impressed with the trust. The only cases we have been able to find, accord with this view, and, indeed, do not even impose the suggested limitation. Bristol v. Scranton (C.C.) 57 F. 70, affirmed (C.C.A.3) 63 F. 218; Heinz v. National Bank of Commerce (C.C.A.8) 237 F. 942, 953; Stover v. Gamewell F. A. Tel. Co., 164 App.Div. 155, 149 N.Y.S. 650. The plaintiff replies that while this may be true after the director resigns, he may not make use of his power as a threat before he does. There is not a scintilla of evidence that Leiter ever threatened to compete if he was not taken along by Rubenfeld and Sobel, but it would make no difference if he had. If he might lawfully -use his good-will competitively after he retired, he might lawfully bargain with the plaintiff about it before, provided all was open and at arm's length. It was like his other property, for, as we have already said, there is no evidence that he acquired it while acting as an officer of the Middletown Companies. Therefore, the case in this aspect depends upon whether the desirability of getting rid of Leiter, and his power to injure the Middletown Companies was fully disclosed at the meeting "of December 23d. Garey says it was, and in this he was not contradicted; clearly we should not disturb that finding. We think, therefore, that the defendants satisfied the burden of proving that everything essential was disclosed to the directors, and that there was no overreaching. That ends the case, because the charter gave the directors power to' sell the shares without the assent of the shareholders. The plaintiff argues that nevertheless, if all was not disclosed to the shareholders at their meeting, the sale may be rescinded, because, although the directors might have acted alone, they did not choose to do so, and the condition which they imposed was hedged by the same limitations as their own action. There is, however, no evidence that the directors ever required the shareholders’ assent. The original offer had said that all formalities must be approved by Weinberg; and the contract, that all papers and “legal proceedings” should be approved by the respective counsel of both parties; but it was Weinberg, not the directors, who insisted upon the shareholders’ assent. He or his clients might forego that which he alone had demanded; as for the plaintiff, it was concluded by its directors, and could be held, if the buyers were content. We agree with Judge Woolsey that the whole case “is based principally on innuendo”; it has no solid support whatever. Decree affirmed. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:

songer_appel2_2_3

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "other". Your task is to determine what subcategory of private association best describes this litigant. Richard TURNER, Individually and as Agent for the Black Youth Club, and the Southern Christian Leadership Conference, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and the United States of America, Respondents, Radio Station WSNT, National Association of Broadcasters, Intervenors. Richard TURNER, Individually and as Agent for the Black Youth Club, et al., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Radio Station WSNT, Inc., National Association of Broadcasters, Intervenors. Nos. 74-1298, 74-1299. United States Court of Appeals, District of Columbia Circuit. Argued 17 April 1975. Decided 23 June 1975. Paul Gewirtz, Washington, D. C., with whom Joseph Onek, Washington, D. C., was on the brief for petitioners. Joseph A. Marino, Associate Gen. Counsel, Federal Communications Commission, with whom Ashton R. Hardy, Gen. Counsel and C. Grey Pash, Jr., Counsel, Federal Communications Commission were on the brief, for respondent. R. Michael Senkowski, Counsel, Federal Communications Commission also entered an appearance for respondent. John B. Summers, Washington, D. C., was on the brief for intervenor, National Association of Broadcasters. John Borsari and George R. Borsari, Jr., Washington, D. C., entered appearances for intervenor Radio Station WSNT, Inc. A. Before MacKINNON and WILKEY, Circuit Judges, and JAMESON, Senior District Judge for the District of Montana. Sitting by designation pursuant to 28 U.S.C. § 294(d). Opinion for the Court filed by Circuit Judge WILKEY. WILKEY, Circuit Judge: Richard Turner and others filed a petition in 1970 before the Federal Communications Commission (FCC) seeking to deny renewal of the license of WSNT, Inc., to operate WSNT-AM in Sanders-ville, Georgia. Petitioners alleged racial discrimination in WSNT’s operation and ' a failure adequately to serve the entire Sandersville community, which is 60 percent black. In an opinion and order dated 11 March 1971, the FCC designated WSNT’s renewal application for hearing pursuant to section 309(e) of the Communications Act. Prior to the scheduled hearing, the petitioners and the licensee reached a settlement and as a result petitioners urged that WSNT’s renewal application be granted. Petitioners also requested that WSNT be required to reimburse the legal expenses incurred in prosecuting the petition to deny. At the same time that it granted WSNT’s renewal application, the Commission denied Turner’s request that WSNT be ordered to reimburse its expenses, on the authority of KCMC, Inc. While Turner’s appeal of the Commission's denial was pending, this court, in Office of Communication of United Church of Christ v. FCC, reversed the KCMC decision. Upon the joint request of the parties, Turner’s appeal was remanded to the Commission for further consideration in light of the opinion in United Church of Christ. On remand the Commission concluded that it was without legal authority to require WSNT to reimburse Turner’s expenses and that reimbursement was not warranted on the facts of this case. While conceding that its powers under sections 4(i) and 303(r) of the Communications Act were broad, it was persuaded that the authority to order reimbursement of legal expenses should not be implied “absent specific statutory authority.” The Commission in its opinion dealt with the issue as follows: [T]he shifting of attorney’s fees is not a new concept. The fact is that fee shifting was well known to Congress when the Act was adopted, and Congress did not choose to number it specifically among the Commission’s regulatory tools. Moreover, any attempt to infer such power from general grants of authority has to be considered in the light of the traditional rule in this nation’s courts against awards of attorney’s fees, the strict limitations on the Commission’s powers under the Act to require broadcast li•censees to pay out money, and the fact that Congress has not hesitated in other circumstances to authorize fee awards explicitly when it has determined such authorization to be warranted. 18. The federal courts have awarded attorney’s fees in certain classes of cases not covered by statute, and Turner argues by analogy that the Commission has authority to do the same thing. But the “foundation” for this practice in the courts is “the original authority of the ■ chancellor to do equity in a particular situation,” Spra-gue v. Ticonic National Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 780, 83 L.Ed. 1184 (1939), and the Commission has no such equitable authority. Instead, the Commission must find its authority in its enabling statutes. Regents v. Carroll, 338 U.S. 586, 70 S.Ct. 370, 94 L.Ed. 363 (1949); Illinois Citizens Committee v. FCC, supra. We affirm the Commission’s order. Congress, and not the Commission, can authorize an exception to the “American Rule” that litigants bear the expense of their litigation. The reasoning of the Supreme Court in Alyeska Pipeline Co. v. Wilderness Society is fully applicable to litigation before the Federal Communications Commission. Congress has no more extended a “roving commission” to the FCC than it has to the Judiciary “to allow counsel fees as costs or otherwise whenever the [Commission] might deem them warranted.” The Commission in its opinion noted that “Congress has not hesitated in other circumstances to authorize fee awards explicitly when it has determined such authorizations to be warranted.” In fact, two provisions of the Communications Act specifically provide for the award of attorney’s fees in court litigation. In conclusion, we wish clearly to distinguish our prior opinion in United Church of Christ. It is one thing to approve a voluntary agreement in which a litigant has agreed to reimburse his adversary his expenses and attorney’s fees in an appropriate case. It is quite another for an agency to order a litigant to bear his adversary’s expenses. Before an agency may so order, it must be granted clear statutory power by Congress. Affirmed. . Radio Station WSNT, Inc., 27 F.C.C.2d 993 (1971). . 25 F.C.C.2d 603 (1970). . 150 U.S.App.D.C. 339, 465 F.2d 519 (1972). . 45 F.C.C.2d 377 (1974). . 45 F.C.C.2d at 381-82 (footnotes omitted). . - u.S. -, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). ' . Id. at-, 95 S.Ct. at 1623. . 47 U.S.C. § 206, relating to actions against common carriers, was a part of the original Communications Act. 47 U.S.C. § 331(b) was a part of the 1973 sports anti-blackout amendment. 47 U.S.C. § 206 is mentioned in note 33 of the Alyeska opinion as an example of a statutory exception to the American rule. - U.S. at-, 95 S.Ct. 1612, n.33, 43 U.S.L.W. at 4568 n.33. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "other". What subcategory of private association best describes this litigant? A. Civic, social, fraternal organization B. Political organizations - Other than political parties Examples: Civil rights focus; Public Interest - broad, civil liberties focus (ACLU) or broad, multi-issue focus (Common Cause, Heritage Foundation, ADA) or single issue - Environmental ENV, Abortion, etc. (prolife, pro-abortion), elderly, consumer interests: Consumer Federation of America, Consumer's Union, National Railroad Passenger Association; PAC C. Political party D. Educational organization - Private, non-profit school E. Educational organization - Association, not individual school - PTA or PTO F. Religious or non-profit hospital or medical care facility (e.g., nursing home) G. Other religious organization (includes religious foundations) H. Charitable or philanthropic organization (including foundations, funds, private museums, private libraries) I. Other J. Unclear Answer:

songer_appfed

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. H. E. FLETCHER CO., Respondent. No. 5874. United States Court of Appeals First Circuit. Heard Dec. 5, 1961. Decided Jan. 24, 1962. James C. Paras, Atty., N. L. R. B., Washington, D. C., with whom Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Melvin J. Welles, Atty., N. L. R. B., Washington, D. C., were on brief, for petitioner. Henry V. Atherton, Boston, Mass., with whom Warren D. Oliver, Boston, Mass., John P. Carleton, Manchester, N. H., Herrick, Smith, Donald, Farley & Ketchum, Boston, Mass., and McLane, Carleton, Graf, Greene & Brown, Manchester, N. H., were on brief, for respondent. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. HARTIGAN, Circuit Judge. This is a petition for enforcement of an order of the National Labor Relations Board entered May 12, 1961 pursuant to the Board’s decision, 131 N.L.R.B. No. 71. The Board found that the respondent, H. E. Fletcher Co., (hereinafter called the Company), had violated Section 8(a) (5) and (1) of the Labor Management Relations Act, 1947, 29 U.S.C.A. § 158 (a) (5) and (1) by refusing to bargain with respect to wages with the Union representing its employees and also by refusing to bargain with said Union on and after February 10, 1960 as the exclusive bargaining representative of the employees. The Board’s order requires the Company to cease and desist from refusing to bargain collectively with the Union, to bargain upon request with the Union as the exclusive bargaining agent of its employees and to post appropriate notices. A brief outline of the facts of the labor dispute as found by the Trial Examiner and adopted by the Board is as follows. The respondent is engaged in the quarrying and processing of granite. On September 12, 1958 the United Stone and Allied Products Workers of America, AFL-CIO (hereinafter called the Union), was certified as the collective bargaining representative for a unit of production and maintenance employees at respondent’s plant at Westford, Massachusetts. On September 30, 1958 the Union submitted a proposed contract to the Company. This contract, which was the only written agreement which the Union ever submitted to the Company, included demands for a union shop, an extensive seniority system and for a grievance procedure terminating in compulsory arbitration. On what, for present purposes, has come to be the critical provision in that contract — namely, wages — this contract sought a blanket increase in hourly wage rates of fifteen cents over the existing maximum rate paid in each job classification, together with a provision for a cost-of-living escalator clause. This agreement also provided that all information used in computing bonuses should be made available to the Union by the Company and that the method of computing the bonus should be the subject of time study by the Union. It will be helpful, at this point, to review briefly the various methods of compensation which were in effect at the Company at the time that the Union offered its first (and only) written proposal. After extensive study and with the advice and assistance of its employees, the Company established a detailed and comprehensive job evaluation plan in 1953. The plan which has been continually in effect since that date was aimed at establishing (and compensating accordingly) the relative value in terms of productive output of the various jobs in the plant. Each job was analyzed in terms of a pervasive list of attributes which thereafter, by means of a conversion factor, was utilized in determining the top hourly dollar rate for a given job. New employees were hired at a figure somewhere below the “top rate” (depending on the supervisor’s appraisal of his qualifications and aptitudes) and would thereafter have the opportunity to advance toward the maximum rate through an intermediate range, presumably, as their skills increased. In addition to the hourly wage rates base upon this job evaluation plan, respondent also had established bonus and incentive programs. The Company maintained an individual incentive program which would reward the individual worker with bonuses predicated on the attainment of certain “points” through achieving established standards of productive output. The respondent also maintained a group or departmental bonus incentive plan and a plant-wide incentive plan known as the “pool.” Payments under the pool for any particular year rested in the sole discretion of respondent’s treasurer and, the determination of amounts to be paid under both plans involved factors which the Company maintained that for competitive reasons it would be unwilling to disclose. Between September 30, 1958 and February, 1959 the Company and the Union engaged in many collective bargaining meetings. Although the record does not reflect what transpired at these meetings, we may fairly assume that at least some of the discussion related to the subject of wages. On February 20, 1959 a meeting was held at which the Company submitted a draft of a contract as a counterproposal to the Union’s contract. On the issue of wages, the Company proposed that the employees’ wage rate should be their “current operator’s rate” and that the Company be permitted “in its discretion [to] increase the operator’s rate” of any employee. The Company proposed contract was subsequently rejected in its entirety by the Union’s membership. On April 15, 1959 another meeting was held, at which the Company presented a second counterproposal. On the question of wages, this agreement reiterated the Company’s previous position — relative to the hourly wage — that employees should continue to receive their current operator’s rate so long as they continued on the same job and that it be given discretion to increase the operator’s rate of an individual employee and to fix such rates in newly established jobs. The agreement provided, however, that before changing any operator’s rate or fixing the operator’s rate for any newly established job, the Company would give notice to the Union and, if requested by ■the Union, consult with its representatives on such matters. In this counterproposal the Company agreed to continue its existing individual incentive system and agreed to make available to the Union information as to the methods used in establishing new or changed standards and awarding points to compute these bonuses. With respect to the two remaining bonus or incentive programs — the department program and the plant-wide or “pool” system — the Company made two alternate proposals. Initially, the Company offered to continue both incentive programs if the Union would waive its right to inquire into matters relating to the operation of the plan. Under the second alternative, both plans would be discontinued. In a note appended to this second alternative, the Company indicated that competitive reasons would preclude it from continuing the operation of these plans if it had to divulge their inner-workings. However, the Company stated that “it was aware that the Union might not wish to agree to such a waiver.” This note concluded: “The Company has stated its willingness to consider and discuss any incentive plan which the Union might wish to propose as a substitute for either or both of the present incentive plans. •Jv •K* ‘Jr ** The Union rejected respondent’s counterproposal on wages and, two days later, on April 17, 1959, called a strike which lasted some four months. On July 6, 1959, during the course of the strike, the respondent entered into a settlement agreement with the Board’s Regional Director, disposing of certain unfair labor practice charges filed by the Union against the Company. Under the terms of the settlement agreement the Company, inter alia, agreed to “[bjargain collectively upon request with the [Union] as the exclusive representative of [its] employees.” On August 4, 1959, the General Counsel of the Board approved the agreement and shortly thereafter the strike was terminated. On September 3, 1959, the Company and the Union met in the first of the two collective bargaining conferences which were held subsequent to the execution of the settlement agreement and prior to the institution of the present proceedings. While this meeting was largely devoted to a consideration of the problems stemming from the placement of returning strikers, the subject of wages was not overlooked. Samuel Angoff, one of the Union representatives (and its counsel) asked whether the Company’s position at that time was the same as that contained in the Company’s previous counterproposal. Upon receiving an affirmative answer, Angoff suggested that the reason why a considerable number of strikers had not returned to the Company after the strike lay in the fact that they were not being paid enough money and, for that reason, many had taken jobs in other plants and industries. He suggested that the Company give an increase of fifty cents an hour, which he said would be the amount which would bring the men back to the plant. Warren Oliver, an attorney, and one of the Company’s representatives at the meeting, replied that these assertions indicated possibilities which the Company might not have considered adequately. Oliver told the Union representatives that he would like to explore this matter during the luncheon period and discuss it with officials of the Company who would be in a better position to know the reasons which workers had given for not returning to the Company after the strike. After lunch, the Company’s negotiators informed the Union that they did not believe that the wage scale was the determinative factor in the failure of some of the employees to return at the conclusion of the strike, but rather that fear of future tension between the strikers and the non-strikers was the chief element in this regard. At the conclusion of this meeting Angoff did not fix a date for another meeting but, instead, suggested that the complaints of returning strikers be settled at the local level before another negotiating session was held. The record indicates that all such complaints were satisfactorily adjusted by October 7, 1959. On October 8, 1959 a representative of the Company contacted an official of the State Conciliation Service to inform him that, while the Company was not seeking a meeting, it stood ready and willing to hold one. The Company heard nothing from the Conciliation Service for almost a month and on November 2, 1959 it again contacted the Service as to the status of negotiations. On November 6, 1959 the Company was informed by the Service that the president of the Union’s Local had said: “[T]he Union isn’t particularly anxious to have a meeting at this time, things are going pretty well in the Fletcher Co.” Thereafter the Union apparently made no attempt to secure another meeting until December 24, 1959. On this date it wrote the Company a letter which, in asking for a meeting, took note of a contract recently negotiated between the Company and the Teamsters Union in which the Company, inter alia, had granted wage increases and a union shop. While questioning the relevance of the Teamsters’ contract to the present negotiations, the respondent replied in part as follows: “[W]e are now, as we have been in the past, willing to meet with representatives of your Union in a further attempt to negotiate a mutually acceptable collective bargaining agreement. In that connection we will listen to and carefully consider any further arguments which you or your representatives may wish to make or any new or changed circumstances which you or they may wish to bring out, including, if you wish, the fact of the execution of our contract with the Teamsters Union.” As a result of this interchange, a second negotiating session was held on February 4, 1960. This meeting was attended by attorneys John P. Carleton and Warren D. Oliver, representing the respondent; attorney V^arren H. Pyle, representing the Union; the Union’s International Secretary-Treasurer, John C. Lawson; the Union’s Local President, James Keenan; and a committee of employees. There were also present representatives of the Federal and State Conciliation Services. At the morning session of this conference, Pyle made a detailed and exhaustive review of the counterproposal which respondent had previously submitted, noting which proposals were acceptable, which were not and suggesting some modifications. At this time, Pyle informed respondent’s representatives that the Union would modify its union security request to a maintenance of membership provision. Concerning wages, Pyle initially requested that the Company supply the Union with a list of the wage increases that had been given to certain employees between September 3, 1959 and February 4, 1960. This was to supplement a previous list which the Company had earlier furnished to the Union. The Company agreed to furnish this list and subsequently did so. Pyle then stated that the Union wanted a wage package of twenty-five cents an hour, the precise breakdown of which would be subsequently determined. The Union still maintained that the Company’s counterproposal on wages was unsatisfactory in its entirety. After Pyle had concluded his statement of the Union’s position on each of the provisions contained in the Company’s counterproposal, Oliver stated that it was obvious that the parties were still far apart on the four major issues in dispute, namely, arbitration, seniority, wage increase and union security and that the talks should thereafter focus on these topics. Nonetheless Oliver stated that during the luncheon period, the Company's representatives would consult with their principals on all aspects of the contract, including the Union’s provision on wages as outlined by Pyle, and would report back the Company’s position at the afternoon session. When the conference resumed in the .afternoon, Oliver outlined the Company’s position on the proposals which the Union had put forth in the morning session. The Company made certain concessions .and complete agreement was reached on relatively minor issues. However, as to the four major issues, Oliver stated that the Company was not persuaded at that time that it should make any change in its bargaining position as the Union had .adduced no new facts or circumstances which would cause it to retreat from its present position. Towards the end of the afternoon session, according to the testimony of Pyle, there occurred an asserted colloquy between Pyle and Oliver on the wage issue which formed the basis of the Trial Ex•aminer’s conclusion that the Company refused to bargain with respect to wages. -On this testimony, the Trial Examiner made the following finding: “In an attempt to make some progress on the wage issue, Pyle asked Oliver if the Company would sit down with the Union and work •out a single wage rate applicable to each classification. Oliver replied, ‘no, the •Company wouldn’t.’ Pyle then asked if the Company would sit down with the Union and work out a schedule of rate ranges applicable to each job classification. Oliver replied, ‘no, the Company would not.’ ” Shortly before the close of the meeting ■Oliver stated that he believed that the ■parties were fully as far apart on major issues as they were at the previous meeting. At this point Keenan said that he •agreed with Oliver and shortly thereafter the meeting concluded. Following this meeting, the Company wrote the Union a letter dated February 10, 1960, in which it declined to recognize the Union further as bargaining representative until the Union had been re--certified as such representative, pursuant "to the Board’s election procedure. In this letter the Company stated that it “doubt [ed] that a majority of our present employees * * * in the bargaining unit for which you were certified now wish to be represented by your Union.” The Company asserted that it had “fully complied with the terms of the Settlement Agreement” because, in its opinion, “at the last negotiating meeting * * * the parties were at a complete impasse.” Coincident with the mailing of this letter, the Company filed an employer representation petition with the Board’s regional office. This petition was subsequently dismissed by the regional director because of the issuance of the complaint in the present proceedings. Upon the basis of the foregoing facts, the Trial Examiner found, and his findings were adopted by the Board, two separate violations of Section 8(a) (5) and (1) of the Act. First, on the basis of the above-described conversation between Pyle and Oliver, the Board found a refusal to bargain in good faith with respect to wages. Secondly, the Board found that the Company also violated Section 8(a) (5) and (1) of the Act by refusing after February 10, 1960 to continue to recognize and deal with the Union as the exclusive collective bargaining representative of its employees “whether or not it had a good faith doubt of the Union’s majority status.” This finding stemmed from the action of the Company in sending its letter of February 10,1960. We will consider these findings in inverse order. In concluding that the Company violated Section 8(a) (5) and (1) of the Act by refusing after February 10, 1960 to recognize and bargain with the Union until the latter was recertified, the Board found that a reasonable time had not elapsed since the parties had entered the settlement agreement and that the negotiations were not in fact at the impasse which the Company asserted. Under these circumstances the Board concluded that respondent was under an obligation to bargain with the Union regardless of any bona fide doubt which it might have felt as to whether the Union had a majority of the members in the relevant bargaining unit. And, by seeking to escape this obligation through its letter of February 10, 1960 the Company violated Section 8(a) (5) and (1) of the Act. It has been held that once a company enters into a settlement agreement requiring it to bargain in good faith with a union, the company must abide by that obligation for a reasonable time thereafter, without raising a question as to the majority status of the union. See, Poole Foundry & Mach. Co. v. National Labor Rel. Bd., 192 F.2d 740 (4 Cir. 1951). However, conversely, if a reasonable time has elapsed, with the company in compliance with the terms of the agreement, we perceive no reason why a company should be precluded from testing any question it might have relative to the continued majority status of the Union by filing a representation petition. Here, we need not decide the question of whether such a reasonable time had in fact elapsed nor whether the proceedings had actually reached an impasse for there is another ground which, in our view, vitiates the Board’s petition for enforcement. Before the Board and here on appeal, the Company contended that the matter of its asserted refusal to recognize and bargain with the Union on and after February 10, 1960, was not properly in issue because such violation was never alleged in the complaint. In this contention, respondent is assuredly correct for the complaint is totally devoid of any allegation which would put it on notice that the reasonableness of the post-settlement time interval was challenged. Consequently, respondent presumably had every legitimate reason to believe that the question of whether or not a reasonable time had elapsed was not one of the issues in the case. The belief was undoubtedly confirmed by the opening statement of counsel for General Counsel who stated at the hearing: “The issue which is before you today is rather narrow and confined to whether or not the Company bargained in good faith with the charging Union with regard to the issue of wages.” At the conclusion of the opening statement there occurred a colloquy between counsel for General Counsel and the Trial Examiner which confirmed this exclusivity of issue, and, thereafter, at no time during the course of the hearing was there any contention made that respondent’s refusal to recognize the Union beyond February 10, 1960, constituted a violation of Section 8(a) (5) and (1). In sum, the Board made a finding of a violation which was neither charged in the complaint nor litigated at the hearing. We believe that it would derogate elemental concepts of procedural due process to grant enforcement to such a finding. As was stated in Douds v. International Longshoremen’s Ass’n, 241 F.2d 278, 283 (2 Cir. 1957): “The complaint, much like a pleading in a proceeding before a court, is designed to notify the adverse party of the claims that are to be adjudicated so that he may prepare his case, and to set a standard of relevance which shall govern the proceedings at the hearing.” Where the Board improperly makes its finding on a charge not contained in the complaint, and the record discloses that the basis of this finding has not been litigated at the hearing, such finding is not entitled to enforcement, see, National Labor Rel. Bd. v. Bradley Washfountain Co., 192 F.2d 144 (7 Cir., 1951). In seeking to avoid this result the Board relies on our decision in N. L. R. B. v. Puerto Rico Rayon Mills, Inc., 293 F.2d 941 (1 Cir., 1961), where we granted enforcement to a finding not contained in the complaint. However, in that case, as we expressly pointed out, “The issue of such a discharge [the finding there questioned] was fully litigated at the hearing * * Id. at 947. Here, the question of whether the Company’s letter of February 10,. 1960 contravened the continuing obligation of the settlement agreement and violated Section 8(a) (5) and (1) was-never “fully litigated at the hearing” and, consequently, we are unwilling to-enforce the Board’s order in this regard.- We turn then to a consideration of the Board’s finding that respondent failed to bargain in good faith on the issue of wages. As noted above, the sole basis for this finding stemmed from an incident which assertedly occurred during "the afternoon meeting of February 4, 1960. Thus, Pyle, after reviewing the >day-long negotiations, testified before the 'Trial Examiner that: “Well, then, in an effort to make .some progress and to get somewhere ■on the wage question, I asked Mr. Oliver if the company would sit down with us and work out a scale of wages which would be applicable, a ¡single rate applicable to each classification. Mr. Oliver said no, the -company wouldn’t. Well, then I assumed that the company must have .a system of rate ranges rather than single rates; so I asked ‘Well, will .you sit down with us and work out .a schedule of rate ranges applicable to each job classification,’ and Mr. Oliver said no, the company would not.” The Trial Examiner obviously con-cluded that the alleged responses of Oliver to Pyle’s questions were outright refusals to bargain further with respect to wages — in effect, to place the subject of wages “off limits.” In its brief here, as before the Board, the respondent denies that the critical •colloquy, as testified to by Pyle, ever took place. However, although Oliver followed Pyle to the stand at the hearing, he did not at that time expressly or directly contradict Pyle’s version of the colloquy. .Nonetheless, while not specifically alluding to and denying the particular portion ■of Pyle’s testimony which subsequently came to form the basis of the present violation, Oliver did testify as follows in response to a question on direct examination : “Now, was there discussion by the Union of a single rate for each job, or a schedule of wage ranges for jobs?” Oliver answered: “The only discussion at that meeting with respect to a single rate for each job was the Union’s statement of its wage demand that they wanted the contract to provide for a fixed rate for each job, which could not be changed by the Company without an agreement of the Union.” While, perhaps, respondent would now be in a better position had Oliver’s testimony contained a specific contradiction of Pyle’s testimony, his above-cited response could be regarded as an inferential dilution of the thrust of Pyle’s testimony. In effect, the testimony might be read as indicating that the only colloquy concerning wages in which Oliver refused to acquiesce concerned the specific Union demands as opposed to an outright refusal to discuss wages. With the evidence thus in equipoise, and in the light of the ambivalence of Oliver’s response, the Trial Examiner felt that an issue of credibility was raised, viz., whether Oliver or Pyle’s recollection of the events at the negotiating session was to be believed, and, accordingly he credited the testimony of Pyle. We have, of course, made it plain that the determination of credibility clearly rests with the Trial Examiner and the Board, and absent an incredible result, resolutions of credibility will be accorded great deference on review. N. L. R. B. v. C. Malone Trucking, Inc., 278 F.2d 92, 95 (1 Cir. 1960); National Labor Relations Board v. Lunder Shoe Corp., 211 F.2d 284, 288 (1 Cir. 1954). However, in the instant case it is not at all certain that the respective testimony of Pyle and Oliver presents a question of credibility in its usual sense. That is to say, the two versions do not necessarily rise to the level of inextricably competing accounts of a single event wherein the worthiness of belief to be accorded one witness compels a disbelief in or rejection of the other. Rather, as we shall endeavor to develop below, we believe that this is a situation where Pyle may well have phrased his interrogations on the wage issue precisely in accord with his testimony at the hearing. Similarly, Oliver’s recollection of this discussion and his response, viz., a negation of the Union’s demands, may also have been consonant with his position at the negotiating session and it need not follow that the two accounts would be necessarily antithetical. We believe that placing this colloquy, in the context of the entire record, it may fairly be said that so far as reaching a common level of meaning and understanding, these particular questions and answers intellectually passed as ships in the night. There can be little question that the subject of wages lies at, or close to, the heart of every attempt at labor-management negotiation, and as such is a subject upon which the employer has a duty to bargain collectively and in good faith. This proposition is by now so well settled that citation of authority would be superfluous. Of course, in this area as in others, this duty does not mean that the employer may be forced to agree on anything. “All that good faith requires is that the employer treat the issue as one to be resolved by bargaining and be willing with an open mind to consider the opposing arguments and explore the possible solution.” Cox and Dunlop, Regulation of Collective Bargaining By The National Labor Relations Board, 63 Harv.L.Rev. 389, 422 (1950). Here the Board obviously concluded, based on Pyle’s testimony, that Oliver not only had the closed mind which would violate Section 8(a) (5) and (1) but that he was candid enough to clearly articulate this mental condition, thus obviating recourse to the more circuitous modes of proving such a proscribed condition. The record reflects that Oliver is a well-experienced attorney in the field of labor relations. It is not lightly to be assumed that an attorney of such experience and background would be as insensitive to the requirements of the Act in this area as to flatly and expressly reject any serious request from the-Union to discuss such a basic issue as-wages — particularly, in the presence of federal and state mediators. We do not believe that we are compelled to totally disregard human experience in attempting to give coherence to the colloquy between Pyle and Oliver. Thus, assuming, as we do, that Pyle’s recollection of events at the bargaining session was correct, the following situation may well have obtained. Pyle’s initial question to Oliver was whether the Company would sit down with the Union and work out a single (not a starting, as found by the Trial Examiner) wage rate applicable to each classification. In the form that this question was addressed to Oliver it undoubtedly had a double aspect. The question was dual-edged in that it involved the query of whether the respondent would sit down with the' Union, and secondly, the question of whether the Company was willing to' agree to a single wage rate which would be applicable to each job classification. Patently, it was thus a question to which Oliver could not have given a single affirmative answer without committing the Company to a concession it was neither prepared — nor under the law — required to make. However, the Company had in fact been “sitting down” with the Union all day on February 4, 1960, (and, indeed, at various times since September, 1958) and had discussed at some length the Union’s demand for a single wage rate applicable to each job classification. Moreover, the Company had already agreed that following the February 4th meeting they would hand over to the Union certain data which the latter had requested concerning the subject of wages. In this posture, the respondent suggests, and we agree, that Oliver had the right in the informal give and take of the negotiating session to assume that he was merely being asked again whether the Company was willing to accept the Union’s demand for a single wage rate which would be applicable to each job classification. As to the second question, it is obvious that Pyle was aware that under the Company’s job evaluation plan a rate range was already in effect. This had been the subject of extensive discussion. Thus, it is fair to infer that, as understood by Oliver, Pyle’s question was not whether he would “sit down” but whether Oliver would agree to a rate range which was higher than that currently in effect. Consequently, as thus understood he would assuredly be within his rights in answering the question in the negative, since the Company had consistently taken the position that it desired to continue its present system and that the Company was unwilling to increase its wage costs. Again, Oliver could not have given a single affirmative answer without committing the Company to a concession it was neither prepared nor required to make. In short, we believe that Oliver’s negative responses were not disinclinations to “talk” but rather to “terms”— the terms which — to that point had been advanced by the Union. An analysis of this colloquy, even when reviewed in the light most favorable to the Board, shows little more than unguarded answers to double-edged questions. Nonetheless, on this colloquy and this alone — the Board found an outright refusal to discuss and explore the possibility of reaching an agreement on the subject of wages. We believe that on this record more is required to support the image of a company mind closed to and unwilling to discuss the question of wages. On a consideration of the entire record we cannot say that the actions of the Company bespoke a mind closed against agreement with the Union on this subject. It may be said fairly that it was the Company and not the Union which appeared more interested in holding collective bargaining meetings. At these meetings the respondent appeared fully willing to consider opposing arguments and explore competing solutions on all issues, including that of wages. The record indicates that when the Union advanced new facts which might impinge on this issue, these facts were expeditiously reported to the principals of the Company for any impact which they might have on the course of negotiations. On the wage issue, the Company came forward, on two occasions, with written counterproposals to the Union’s demands. On the significant question of the character of the incentive plan, the Company’s counterproposal of April 15, 1959 contained an express invitation to the Union to submit any alternative method or formula which it desired, for the establishment of a bonus or incentive plan. No such substitute was ever forthcoming. To be sure a major difficulty in the negotiations was the gulf between respondent’s existing wage and incentive systems and the system the Union wished to establish. However, while there existed this obviously wide gulf in the respective positions of the parties, as noted above, we cannot say that the Company’s mind was closed to the possibility of bridging this gulf. On the contrary, the record amply reflects that the Company representatives displayed a constant willingness to participate in the mutual interchange of views and ideas which the Act was designed to foster. More than this cannot be asked. The petition for enforcement of the Board’s order is denied and dismissed. . Each job was analyzed and appraised in the light of eleven attributes, viz., physical effort; hazards, job conditions, supervision; responsibility for safety of others; responsibility for equipment and material; knowledge, equipment and tools; knowledge methods; knowledge, materials; schooling; judgment and initiative; versatility and ingenuity; physical skills. . There was no contention that the Union was denied access to information concerning the workings of the plan or the factors upon which it was based. Such information was always available to the workers at a convenient location in the plant. Respondent indicated at oral argument that data as to the make up of its unit computation was always available to representatives of the Union. . Respondent is primarily a contractor and a large supplier of granite to municipal governments. It argued that the necessity of competitive bidding would make disclosure of these factors inimical to its best business interests. . “Although unilateral action is usually an unfair labor practice it appears to be settled law that a company may lawfully bargain for contract provisions assigning it management functions which it may perform during the term of the eon-tract without consulting the union even though the subject matter is a topic on which the employer is required to bargain collectively.” Cox, The Duty To Bargain In Good Faith, 71 Harv.B.Kev. 1401, 1424 (1958). . At oral argument petitioner suggested that respondent has the burden of specifically demonstrating how it has been prejudiced by the failure to allege this violation in the complaint. While respondent has not made such a specific showing it has strongly indicated that its case would have been tried differently had it known that this issue was in the case. We believe that, on the present record, it need assert no more in order to be entitled to relief. but I don’t believe we have ever done that. * * * ” . At the hearing, Pyle testified on cross-examination as follows: “XQ. So since the original union proposal was submitted to the company, there has been no counter-proposal furnished by the union in the form of a written contract, complete written contract. A. Well, we never withdrew our proposal; we didn’t feel that your offers were substantial enough to merit any proposal; we thought your offers were calculated to withdraw an objection, and didn’t come anywheres near what we thought a reasonable contract would be. “XQ. You never withdrew the original proposal, and, of course, you never submitted a new complete proposal, is that right, regardless of the reasons for it, isn’t that the fact? A. No, we never submitted a new contract. We had told you what we wanted in the first contract. “XQ. Did you ever submit any written. from the time the original proposal of the union was furnished, did you ever submit any written redrafts of any of the clauses of— A. No. “XQ. —of your original contract? A. No. “XQ. The company counter-proposal furnished on the 15th of April, 1959, under Article YIII, the Wage clause, contains an invitation or an alternative to the union to submit a formula or a method setting up a bonus or an incentive plan, does it not? A. It speaks for itself. :!: * * * * “XQ. (By Mr. Oarleton) Then let me ask you this. Since receipt by the union of this counter-proposal of April 15, has the union ever furnished to the company in writing any bonus or incentive plan in response to the company’s invitation for it to do so? A. Well, as I told you, I was not present at any meeting up until February 4 of this year; . We do not believe the fact that the Company questioned the majority status of the Union after February 10 can, on this record, be taken as an indicia of unwillingness to bargain on wages. The facts indicate that the Company had ample reason to question the Union’s majority status. On February 4, 1960 there were 171 employees in the bargaining unit of whom 106 had a normal attendance during the strike. Twenty additional employees had worked part time during the strike and one was a returned soldier who had been in the service. On February 4, some sixty-two per cent of the employees in the bargaining unit had worked throughout the strike and only some twenty-six per cent of the men failed to work at any time during the strike. Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:

songer_othcrim

E

What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". MITCHELL et al. v. REICHELDERFER et al., Commissioners of District of Columbia. No. 5274. Court of Appeals of District of Columbia. Argued Jan. 7, 1932. Decided Feb. 23, 1932. Fred B. Rhodes and Marcus Borchardt, both of Washington, D. C., for appellants. William W. Bride and Vernon E. West, both of Washington, D. C., for appellees. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices. MARTIN, Chief Justice. This is an appeal from an order of the lower eourt ratifying and confirming the verdict of a jury in a condemnation ease. On May 13, 1928, the commissioners of the District of Columbia filed a petition under the provisions of subchaptor 1 of chapter 15 of the Code of Laws for the District of Columbia (D. C. Code 1929, T. 25, § 52 ct seq.), seeking the condemnation of land for •flie extension of Irving street between Eighteenth and Twentieth Streets Northeast, and for the widening of Eighteenth street between Irving and Jackson Streets Northeast. Among the lands sought to be condemned were two tracts belonging’, respectively, to Lloyd H. Van Kirk and Guy V. Collins. Notice of the proceeding was served personally upon them as required by section 491e of the D. C. Code (I). C. Code 1929, T. 25, § 54). Public notice also was regularly given of the proceeding by advertisement in three daily newspapers published in tile District, warning and requiring “all persons having any interest in the proceeding” to appear in court at a day named in the notice, and to continue in attendance until the court shall have made its final order ratifying’ and confirming the award of damages and the assessment of benefits by the jury as provided by the act. A lawful jury was then impaneled, sworn, and instructed by the court, and, after viewing the premises and hearing testimony, the jury on December 9, 1929, returned its verdict awarding damages for the lands taken, and assessing certain amounts against various parcels of land for benefits from the improvement. On December 28, 1929, Van Kirk and Collins, being the only appellants whose lands were tajeen by condemnation, filed objections and exceptions to the verdict of the jury, both as to the amount of the damages allowed for the lands taken and as to the assessments for benefits levied against other lands owned by them. These objections and exceptions were overruled by the court on April 4,1930. On April 10, 1930, the court, in conformity with the Act of Congress of May 29; 1928, 45 Stat. 953 (D. C. Code 1929, T. 25, § 71), gave lawful notice to the owners of lands which were assessed for benefits, of the amount of such assessments, and ordered “that objections or exceptions to said verdict of property owners assessed for benefits (no part of whose land was condemned in this proceeding) be filed in said cause on or before the 25th day of April, 1930.” Thereupon on April 24 and 25, 1930, appellants Touey, Demas, and Mitchell, who were not owners of any land taken by the condemnation hut owned lands which were assessed for benefits, filed tbair respective objections and exceptions to the assessments found by the jury. The court, however, overruled all objections and exceptions respecting benefits charged against the several tracts owned by appellants, and ratified and confirmed the verdict. These appeals were then taken. Two propositions are urged by appellants in support of their appeal: First, a claim that appellants were entitled to have their objections on the question of benefits heard by the condemnation jury; and, second, that the amounts assessed as benefits were excessive and not commensurate with the aetual benefits to their properties. The first of these claims is not sustained by the law. The mere filing of objections and exceptions to the verdict of a condemnation jury does not entitle a property owner to reopen and retry the case to the same or another jury. The procedure in relation to such complaints is governed by section 491h of the D. C. Code (D. C. Code 1929, T. 25, § 59), which provides as follows: “The said court shall hear and determine any objections or exceptions that may be filed to any verdict of the jury and shall have power to vacate and set any verdict aside, in whole or in part, when satisfied that it is unjust or unreasonable, in which event the court shall order the jury commission to draw from the special box the names of as many persons as the court may direct, and from among the persons so drawn the court shall thereupon appoint a new jury of five capable and disinterested persons, who shall proceed to ascertain the damages or assess the benefits, or both, as the case may be, in respect of the land a,s to which the verdict may be vacated, as in the ease of the first jury. * * * ” The procedure thus provided designs to give personal notice of the proceeding to those whose lands may he taken for the improvement, and to give notice by publication to all other persons having a.ny interest in the proceeding, and, in event of dissatisfaction by any such person with the verdict, to permit of the filing of objections and exceptions against the assessments of damages or benefits. Such objections and exceptions, however, are in the nature of a motion for a new trial, and are not io be tried by the condemnation jury, but are to be heard by the court, upon affidavits if such are filed, and only in case they are sustained by the court shall another jury be impaneled to retry the issue. Clapp v. Macfarland, 20 App. D. C. 224, 230. Moreover the provision for separate juries to try such issues is permissible. “Whether the estimate of damages aud the assessment of benefits shall be intrusted to the same or to different commissioners is a matter wholly within the decision of the legislature, as justice and convenience may appear to it to require.” Bauman v. Ross, 167 U. S. 548, 17 S. Ct. 966, 983, 42 L. Ed. 270. In Wight v. Davidson, 181 U. S. 371, 382, 21 S. Ct. 616, 45 L. Ed. 900, upon facts similar to those in 'this case, the owners whose .lands were assessed for benefits claimed that the acts under which the proceeding was had were unconstitutional, upop the ground that they contained no provision for notifying the owners of property to be assessed in advance of the assessment, nor at any time pending the consideration thereof by the condemnation jury, nor any mode whereby the objections of the owners whose land is sought to be charged could be heard or considered, or by which any objection to the assessment might be made effective. The Supreme Court overruled this contention, and sustained the validity of assessments founded upon a procedure similar to that pursued under the statutes in the present ease. In Wilkinson v. Dougherty, 58 App. D. C. 81, 24 F.(2d) 1007, 1011, we held that 'assessments for-benefits levied in a condemnation proceeding against the owners of property who had no notice at any stage of the proceeding were void. In the opinion by Mr. Justice Robb it is said: “Moreover, there is no practical reason why, after the jury has returned its verdict and before its confirmation, the procedure followed in Wight v. Davidson should not be followed and actual notice be served upon those against whom assessments have been made, that they may show cause, if any they have, why the verdict should not be confirmed. ? * , It is thus apparent that had actual notice been given appellant after the return of the verdict, he could have protected his interests through the filing of objections or exceptions.” In the instant case each of the appellants had lawful notice of the proceeding prior to any action taken by the court therein. Van Kirk and Collins were served personally with timely notice. The public notice required by section 491e, supra, was duly given. Mitchell, Touey, and Demás were served with notice after the return of the verdict of the assessments for benefits upon their lands, as required by Act of Congress' approved May 29, 1928, supra. Acting, upon such notice, the appellants filed their objections and exceptions, which were duly considered and decided by the court. All had their day in court. Wight v. Davidson, supra. As to the questions of fact raised by appellants concerning the amounts found by the jury for damages and benefits, it need only be said that the record does not present evidence sufficient to sustain the objections and exceptions of appellants to the verdict. The order of the lower court is therefore affirmed, with costs. Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim. A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:

songer_geniss

G

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". BEACON TRUST CO. v. DOLAN. In re JAMES MILLAR CO. Circuit Court of Appeals, First Circuit. June 28, 1928. No. 2201. 1. Bankruptcy @=>188(3) — Whether creditor has equitable lien on assets of bankrupt must be determined by law of state. Whether a bank, creditor of bankrupt, has an equitable lien on assets of bankrupt estate, must be determined by the law of the state. 2. Bankruptcy @=>188(3) — Equitable lien on bankrupt’s assets is recognized in Massachusetts. An equitable lien pn assets of bankrupt is recognized by the decisions of the Supreme Judical Court of Massachusetts. 3. Bankruptcy @=>163, I7S — Bank’s loan on security of unfinished shoes in different lots, identified by production sheets, which shoes ii took possession of before bankruptcy, held not voidable transfer, nor preference. Where a bank in good faith made a loan on the security of shoes in the course of manufacture, which belonged to different lots, which were identified by production tags, and where, just preceding bankruptcy, it took possession of such shoes through the superintendent of the bankrupt company, whom it constituted its agent for the purpose, held, transfer was not voidable, there being no intent to defraud, nor did it create a preference being made for a present consideration and without depletion of bankrupt estate. 4. Bankruptcy @=>188(3) — Bank, making^ioan on security of shoes in course of manufacture, held entitled to preferred claim on proceeds thereof. Where bank made loan on security of unfinished shoes in process of manufacture belonging to different lots, identified by production sheets, and before bankruptcy of borrower took possession of such shoes by borrower’s superintendent as its agent, held, bank was entitled to preferred claim to proceeds of shoes when sold by receiver in bankruptcy. Appeal from tlie District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge. In the matter of the bankruptcy of James Millar Company, Thomas F. Dolan, trustee. Prom an order of District Court, affirming a ruling of the referee denying claim of preference by the Beacon Trust Company, claimant appeals. Order reversed, and ease remanded. Lee M. Friedman, of Boston, Mass. (Percy A. Atherton and Friedman, Atherton, King & Turner, all of Boston, Mass., on the brief), for appellant. John M. Maloney, of Boston, Mass., for appellee. Before BINGHAM and JOHNSON, Gircuit Judges, and HALE, District Judge. JOHNSON, Circuit Judge. This is a petition to review the judgment of the District Court of the United States for the District of Massachusetts, affirming the ruling of the referee in bankruptcy, denying the claim of the petitioner to certain funds and property in the possession of the trustee of the bankrupt. The facts as found by the referee, so far as material, are as follows: The bankrupt, James Millar Company, had from time to time made loans at the Beacon Trust Company, the petitioner here, for which it gave its promissory notes, secured by an assignment of accounts reeeivable. When a loan was made, the bankrupt provided the bank with duplicate invoices or bills on which there was an assignment, and when these accounts were paid to the bankrupt it turned the money it received over to the bank. On February 18, 1926, the bankrupt needed money to meet its pay roll. It had no actual accounts to be assigned, but did have orders which it was to fill. The bankrupt had in process of manufacture shoes to fill these orders, and applied to the bank for a loan, offering as security a list of these unfilled orders shown upon production sheets, containing, with other data, a list of the lots of shoes for which an order had been given. Each of these lots, as it was being made up in the process of manufacture, had attached a tag, or tags, with an identifying number, which number was entered on the production sheets, duplicates of which were assigned to the bank. By means of these tags and identification numbers), each lot of shoes and the materials needed to make them could at all times be traced and located in the bankrupt’s factory and connected up with its proper production sheets, and only by reference to the production sheets could the shoes manufactured to fill the order be identified. When the order had been completed and the • shoes shipped out and billed, the bankrupt assigned a duplicate of the bills rendered to the bank, which was intended as a substitution for the production sheets which had previously been assigned. March 22,1926, the bank loaned the bankrupt $11,000; March 23, $6,000; and April 12, $6,COO — making a total of $23,000, and the method was followed which has been described. The price of the shoes shown on the production sheets delivered to the bank in connection with said loans aggregated $26,-174.60. The shoes enumerated on said sheets were subsequently sold by the receiver in bankruptcy and the proceeds of said sale, amounting to $6,253.10, are held subject to the order of the court. The bankrupt finding itself unable to go on further with the business without more money, and the bank evidently being unwilling to furnish the same, its counsel prepared a letter, signed by the bank and delivered to the superintendent of the bankrupt, directing him, to take possession, as agent of the bank, of shoes pledged to secure the bank loans, and which “had been already set aside and tagged.” This letter was delivered to the superintendent of the bankrupt at the bankrupt’s factory on the morning of April 15, 1926, and on the same afternoon an involuntary petition in bankruptcy was filed by the bankrupt. Counsel for the bank acted also as counsel for the petitioning creditors. The referee has found- that the statement in the letter of instructions to the superintendent to take possession of the shoes that “had already been set aside and tagged” was erroneous, and that the superintendent did not tag finished shoes, but had his subordinates mark with tags certain unfinished shoes with the initials of the bank; that the only thing the bank did to get possession of these disputed shoes was to direct the superintendent to take possession of them, and the tagging of the unfinished shoes was started about 5 hours before the petition in bankruptcy was filed. The referee has further found that the bank made the loans to the bankrupt “in good faith and in the belief at the time that it was to secure some kind of a lien on these unfinished shoes,” that the bank acquired no lien by the original transaction and “was not benefitted by anything that happened on the day of bankruptcy,” and that no lien was created by the original transaction, which did not constitute a mortgage or a pledge. The findings and ruling of the referee were affirmed by the District Court. The errors assigned are, in substance, that the court erred in failing to find that the petitioner had an equitable lien on unfinished shoes, and that the court erred in failing to establish petitioner’s right to the sum of $6,253.10 realized from their sale, together with any interest that has accrued thereon. The bank contends that it had an equitable lien upon the material to be used in manufacturing the shoes to fill the orders which were assigned to it. The record discloses, and the production sheets, which are exhibits in the ease, show that all of this material bore an identifying number, which connected it up with the particular lot of shoes in the manufacture of which it was to be used, and the referee has so found. The referee has also found that the loans in question were made by the bank in good faith and believing that it secured a lien upon the unfinished shoes. Whether the bank secured any equitable lien by what was done is determined by the law of Massachusetts. See Thompson v. Fairbanks, 196 U. S. 516, 522, 25 S. Ct. 306, 49 L. Ed. 577; Hiscock v. Varick Bank of New York, 206 U. S. 28, 38, 27 S. Ct. 681, 51 L. Ed. 945; In re Robert Jenkins Corporation (C. C. A.) 17 F.(2d) 555. An equitable lien is recognized under the decisions of the Supreme Judicial Court of Massachusetts. In Westall v. Wood, 212 Mass. 540, 99 N. E. 325, the defendant had executed to the plaintiff a mortgage upon real estate for money loaned by the plaintiff for the purchase of land and the erection of a building thereon, and obtained from the plaintiff an order to buy materials for the erection of the building. The plaintiff received an assurance from the defendant that the materials purchased should be used in the erection of a building on the mortgaged premises. It was agreed that the money loaned to purchase the materials should constitute a part of the consideration of the mortgage, but there was no specific agreement that a lien should attach to the materials. The material was delivered upon the land, but later the defendant removed a large part of it which he claimed to hold as his own. The court said, at page 544 (99 N. E. 325): “But an equitable lien does not of necessity rest exclusively upon an express agreement. It may arise from circumstances of such nature as to require the presumption upon general considerations of justice as between those conducting commercial transactions according to a reasonable standard of integrity that an equitable lien was meant. Equity looks at the substance, and not at the form. If the arrangement between the parties, interpreted in the light of the conditions in which they were placed, indicates a contemporaneous intention to- adjust their rights upon a basis which can be established only by resórt to the equitable principle of lien or pledge, then, in the absence of an intervening adversary interest, such an intent will be executed in chancery.” This statement is supported by citation of authorities, among which is Hurley v. Atchison, T. & S. F. R. Co., 213 U. S. 126, 29 S. Ct. 466, 53 L. Ed. 729. The court in Westall v. Wood, supra, there held that, even though the understanding between the parties was inartifieially expressed, “it ought to be treated in a chancery court as creating an equitable lien, in order to effectuate the aim of the parties and to prevent the perpetration of a fraud” — citing Sexton v. Kessler & Co., 225 U. S. 90, 96, 97, 32 S. Ct. 657, 56 L. Ed. 995. In Hurley v. Atchison, T. & S. F. R. Co., supra, the lessee of certain coal mines had entered into an arrangement with the railway company to furnish it coal, the amount so furnished to be paid for upon the 15th day of each month. The lessee, the coal company, became embarrassed and unable to meet its pay rolls, so that as a result it might not be able to mine or deliver the coal which it had agreed to deliver, and which the railway company required for its daily consumption. The railway company agreed to advance money for coal to be mined and delivered to it. The court found that this arrangement was so intimately and vitally related to the original contract that it was not intended to be interpreted independent and separate from it, and said, at page 134 (29 S. Ct. 469): “We think the inevitable meaning of the new arrangement, interpreted in the light of the conditions surrounding the parties and as necessarily intended by them, was to pledge a sufficient amount of cojl after it should be mined as security for the payment of advances made. This result is not expressed in' the conventional form of a mortgage or pledge, but the method of producing it was devised for the purpose of acquiring the needed money by the coal company and of furnishing security for its repayment. If the parties intended the arrangement to be one for borrowing and securing the repayment of money, we ought, as between them, to so regard it and treat it as creating an equitable charge or lien, however inartifieially it may have been expressed.” It found and ruled that the agreement that the coal to be mined should be delivered was, “from an equitable standpoint to be considered as a pledge of the unmined coal to the extent of the advancement. The equitable rights of the parties were not changed by the commencement of bankruptcy proceedings. All obligations of a legal and equitable nature remained undisturbed thereby.” In Re Interborough Consol. Corporation (C. C. A. 2d Circuit) 288 F. 334, 32 A. L. R. 932, the following statement is made in regard to the creation of an equitable lien: “A contract whereby a contracting party sufficiently indicates an intention to make some particular property or fund which it describes a security for a debt or other obligations creates an equitable lien on the property so indicated. Ingersoll v. Coram, 211 U. S. 335, 368, 29 S. Ct. 92, 53 L. Ed. 208. A contract which. shows an intention to charge a particular property therein identified with an obligation creates an equitable lien thereon. Hauselt v. Harrison, 105 U. S. 401, 26 L. Ed. 1075; Gregory v. Morris, 96 U. S. 619, 24 L. Ed. 740. And if a party by agreement creates a charge or claim in the nature of a lien on property of which he is the owner or in possession, a court of equity will establish and enforce it, not only against the party who stipulated to give it, but also against third persons who are either volunteers, or take with notice. Walker v. Brown, 165 U. S. 654, 664, 17 S. Ct. 453, 41 L. Ed. 865.” See, also, Root Manufacturing Co. v. Johnson, 219 F. 397, C. C. A. Seventh Circuit. There is no doubt about the intention of the parties in the present case. The loans were made by the bank on the security of the unfinished shoes then in process of manufacture and which belonged to different lots which were identified upon the production sheets. There was no intent to defraud, and the referee has so found. Nor was a preference created as a present consideration was advanced at the time the security was taken. The bank, through the superintendent of the bankrupt, whom it constituted its agent for the purpose, had taken possession of these unfinished shoes before the petition in bankruptcy had been filed or any adverse rights created. Although the transfer to the bank took place within four months of the bankruptcy proceedings, it is not thereby rendered voidable, because it was not made with intent to defraud, nor did it create any preference, but was made for a present consideration and the bankrupt estate was not depleted thereby. In Sexton v. Kessler, 225 U. S. 90, 32 S. Ct. 657, 56 L. Ed. 995; Van Iderstine v. National Discount Co., 227 U. S. 575, 33 S. Ct. 343, 57 L. Ed. 652, and Greey v. Dockendorff, 231 U. S. 513, 34 S. Ct. 166, 58 L. Ed. 339, equitable liens were sustained, and these decisions have been followed in this circuit in Massachusetts Trust Co. v. MacPherson (C. C. A.) 1 F.(2d) 769; In re Robert Jenkins Corporation (C. C. A.) 17 F.(2d) 555; Crosby v. Packer (C. C. A.) 22 F.(2d) 611. There is no controversy about the facts in the present case, and the evidence is clear and convincing that the loans made by the bank supplied the money with which to pay the pay rolls of operatives for the work of assembling these parts of unfinished shoes and making the finished shoes for which orders had been taken. There was a sufficient identification by the production sheets of the parts of these unfinished shoes. The order of the District Court is reversed, and the case is remanded to that court for further action not inconsistent with this opinion. The petitioner recovers costs in this court. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:

songer_respond1_1_4

J

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant. Clarence D. GERHART et al., v. HENRY DISSTON AND SONS, INC., Appellant, v. H. K. PORTER COMPANY, Inc., and H. K. Porter Company, Inc. of Pittsburgh. K. KNUDTSON et al., v. HENRY DISSTON AND SONS, INC., Appellant, v. H. K. PORTER COMPANY, Inc., and H. K. Porter Company, Inc. of Pittsburgh. Nos. 13242, 13243. United States Court of Appeals Third Circuit. Argued Nov. 29, 1960. Decided April 28, 1961. Rehearing Denied June 16, 1961. Daniel Mungall, Jr., Philadelphia, Pa. (S. Gordon Elkins, Stradley, Ronon, Stevens & Young, Philadelphia, Pa., on the brief), for appellant. Philip H. Strubing, Philadelphia, Pa. (William R. Klaus, K. Robert Conrad, Pepper, Hamilton & Scheetz, Philadelphia, Pa., on the brief), for appellee. Before McLAUGHLIN and HASTIE, Circuit Judges, and FORMAN, Senior Circuit Judge. FORMAN, Senior Circuit Judge. This is an appeal in consolidated third party actions by Henry Disston and Sons, Inc., (Disston) against H. K. Porter Company, Inc., and H. K. Porter Company, Inc. of Pittsburgh (Porter). Two suits in the nature of class actions had been brought against Disston by former employees. In the first, Clarence D. Gerhart, et al. (No. 13,242) were plaintiffs and in the other the plaintiffs were K. Knudtson, et al. (No. 13,243). In each, recovery was sought for alleged pension rights and in each Disston made Porter third party defendant, claiming that if it were liable to the employee-plaintiffs Porter had assumed the liability. On October 15, 1955, Disston and Porter entered into a written agreement known as an “Agreement and Plan of Reorganization” (referred to hereinafter as the Agreement) in which Porter agreed to purchase all of Disston’s assets in return for shares of its then authorized but unissued cumulative preferred stock. The Agreement was supplemented by two letters, each bearing the same date with it — October 15, 1955 — signed by Porter, undertaking additional obligations to those mentioned in the Agreement. On November 16, 1955, the date set for the closing, on or before which the transactions contemplated by the Agreement were completed, Porter signed an additional document entitled “Assumption of Liabilities” in which, among other things, it disclaimed any assumption of liability for dissenting or objecting stockholders of Disston arising by reason of Disston entering into the Agreement. In December of 1955 or January of 1956 two groups of non-union employees who had worked for Disston and were then working for Porter made claims against Disston for pension benefits. On May 6, 1956, these claims culminated in the two class actions mentioned above. The complaints in them were based primarily on a pamphlet entitled “New Group Insurance Benefits and Revised Pension Plan” which had been issued to the non-union employees on or about September 1, 1950 in the form of a revision of an earlier pension plan. Both complaints alleged that on November 21, 1955 Disston’s Board of Directors passed a resolution purporting “to discharge all of the company’s employees and to terminate all pension and other rights of the employees.” At the time of the sale of the Disston business to Porter, the first group of employees (Gerhart, et al., No. 13,242) had met both the age and service requirements set forth in the pamphlet but were still at work. They were 65 years of age or over, with 25 or more years of continuous service, or they were 60 years of age with 30 or more years of continuous service. The second group (Knudtson, et al., No. 13,243) had met the service requirement of twenty five years but not the age requirement. The employees claimed that the pensions were contractual and therefore obligatory. Disston resisted the claims alleging that the pension plan was voluntary, non-contractual and could be terminated at its pleasure without incurring any liability. It also contended that the second group of employees could not recover in any event because its members had not attained the age set forth in the pension pamphlet. In its answer to Disston’s third party complaint Porter denied any liability and counterclaimed, alleging a breach of the representations and warranties contained in paragraphs 3(b) and (c) of the Agreement. (See note 2, supra). Early in 1958 Disston settled the suits of both groups of employees by agreeing to pay $365,000. The agreement of settlement also provided that Disston would be obligated to pay to the employees all amounts over $50,000 up to a maximum of $60,000 out of moneys which it might recover from Porter. Following the agreement of settlement both groups of employees filed a petition with the court pursuant to Rule 23(c), Federal Rules of Civil Procedure, 28 U.S. C.A., to approve the settlement and the distribution of the funds, which was granted on September 17, 1958 and the employee-plaintiffs’ actions were dismissed with prejudice. The two third party actions were then consolidated for trial. At the close of Disston’s evidence, Porter moved to dismiss. The motion was denied. Following the close of all the evidence, Porter moved for a directed verdict on the grounds that Disston had failed to produce sufficient evidence and that under Rule 41, Federal Rules of Civil Procedure, Porter being an adverse party in the actions and the dismissal of the employee-plaintiffs’ actions having been “with prejudice”, it operated as an adjudication on the merits as if Disston had obtained a judgment against the original plaintiffs. The decision on this motion was reserved and the district court found that the disposition of it was made unnecessary by the verdict of the jury in favor of Porter. Following the entry of judgment Disston moved for a new trial based on errors in the admission of evidence and in the charge. The motions were denied and these appeals followed. The two basic issues raised at the trial were: (1) At the time of the closing with Porter, was Disston under any legal obligation to pay pensions to the two groups of non-union employees whose claims it later settled ? (2) If it was so liable, did Porter assume that liability under the Agreement? On this second issue the trial court permitted, over Disston’s objection, the introduction of parol evidence. It was and is Disston’s position that the documents into which the parties entered (the Agreement, supplementary letters and Assumption of Liabilities) “are unambiguous and that the court was obliged to declare Porter liable to Disston as a matter of law if the jury found that Disston was liable to its non-union employees for pensions.” In support of its position that the language of the documents is unambiguous Disston argues that the warranty clauses of the Agreement are not inconsistent with, and do not qualify or limit the scope of the Assumption of Liabilities; that had the parties intended to limit the Assumption of Liabilities to those stated in the balance sheet it should have been so provided, and that to limit Porter’s assumption of liabilities to those disclosed on the Disston balance sheet makes the other warranty clauses surplusage. Disston contends that the general nature of the transaction and the surrounding circumstances indicate an intention of the parties that Porter was to assume the responsibility for unknown and unforeseen liabilities which were not, and need not have been, under the terms of the various warranties, set forth in the Disston balance sheet. Here it states that if Disston should remain liable for all unknown and unforeseen liabilities existing at the time of the closing Porter could hardly have expected a prompt dissolution by Disston which Disston was obliged to effect pursuant to paragraph 5 of the Agreement, which reads: “5. Promptly after the time of of closing, Disston will take appropriate steps in accordance with the Plan of Reorganization to effect its corporate dissolution and to distribute its then property to its stockholders.” Disston maintains that since Porter was taking over Disston as a going concern and Disston was to promptly dissolve Porter really could not have expected that it would turn out long time employees without any consideration to the payment of pensions to them but that it did know that these employees would have to be treated fairly and that it expected to do so. Disston notes that it was more reasonable to expect that Porter would, in continuing the business, in due time meet the obligation of the pensions rather than that Disston would take over the payment of the employment benefits long after it was out of the business and that the economic consequences would be favorable to Porter since it could benefit by income tax deductions thereby. Disston further submits that the word “liabilities” is not ambiguous per se. It asserts that resort to parol evidence is permissible only when the meaning of the word remains truly ambiguous after the surrounding circumstances and all of the language of the documents have been considered. As the final prop in support of its position that the Agreement was not ambiguous Disston contends that neither the two supplemental letters (See note 3, supra), made part of the Agreement, nor the qualifying clauses in the formal “Assumption of Liabilities” (see note 4, supra), do not indicate any intent to restrict Porter’s assumption of liabilities. Rather it maintains that the matters dealt with in the letters indicate an attempt to avoid any possible breach of the warranties contained in the Agreement. Disston also notes that the formal “Assumption of Liabilities” expressly excluded any liability to dissenting shareholders. From this Disston concludes that if the Agreement only covered those liabilities stated in the balance sheet no such exclusion would have been necessary. It is beyond dispute that Pennsylvania law governs the contract here and in Pennsylvania as elsewhere it is established that where a written instrument is ambiguous, either party may introduce oral evidence to resolve the ambiguity. Morgan v. Phillips, 1956, 385 Pa. 9, 122 A.2d 73 and cases cited therein ; Zehnder v. Michaud, 8 Cir., 1944, 145 F.2d 713; Buchanan v. Swift, 7 Cir., 1942, 130 F.2d 483; Shipley v. Pittsburgh & L. E. R. Co., D.C.W.D.Pa.1949, 83 F.Supp. 722. In determining whether or not there is an ambiguity the whole contract must be considered and not an isolated part. Fraser Fund v. Fraser, 1944, 350 Pa. 553, 40 A.2d 22; Buchanan v. Swift, supra; Shipley v. Pittsburgh & L. E. R. Co., supra. A contract is ambiguous if,' and only if, it is reasonably or fairly susceptible of different construction; it is not ambiguous if the court can determine the meaning without any guide other than a knowledge of the simple facts on which, from the nature of language in general, its meaning depends. Whiting Stoker Co. v. Chicago Stoker Corporation, 7 Cir., 1948, 171 F.2d 248; Zehnder v. Michaud, supra. An ambiguous contract is one capable of being understood in more senses than one; an agreement obscure in meaning through indefiniteness of expression, or having a double meaning. Whiting Stoker Co. v. Chicago Stoker Corporation, supra. Before it can be said that no ambiguity exists, it must be concluded that the questioned words or language are capable of one interpretation. Such a conclusion must be determined from a consideration of the entire instrument and not from a single portion thereof. United States Trust Co. of New York v. Jones, 1953, 414 Ill. 265, 111 N.E.2d 144. It has been said: “The words ‘liabilities’ and ‘indebtedness’ would be deemed by Dean Goodrich as accordion words: they are capable of expanding and contracting in their connotations. They may mean present, current, future, fixed or contingent debts. Their meaning in each instance must be determined, not by looking in the dictionaries, but by reading the context, reviewing the transaction, and taking note of the subsequent conduct of the parties who used the equivocal words * * * ” Erickson v. Grande Ronde Lumber Co., 1939, 162 Or. 556, 92 P.2d 170, 174, 94 P.2d 139. In Wilken v. Citizens National Bank of Paris, 1939, 298 Ill.App. 38, 18 N.E.2d 251 the meaning of the word “liabilities” was in issue. The court stated at pages 254-255 of 18 N.E.2d: “ * * * An examination of the entire contract leads us to believe that there might be some doubt about the meaning of the word ‘liabilities’ as used in the second paragraph of the contract * * *. “ * * * By reason of the doubt arising as to the true sense and meaning of the word ‘liabilities’ the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument, and in such case parol evidence is necessarily admissible, and the Court in order to place itself as nearly as possible in the situation of the parties at the time will consider all of the facts and circumstances leading up to and attending the execution of the contract * * Disston concedes that it considered the pensions in suit to be completely voluntary at the time of the making of the Agreement and thus had no reason to include them in the balance sheet of the company; that the pensions at that time were an unknown and unforeseen liability and that by the plain language of the Agreement Porter intended to assume responsibility for its unknown and unforeseen liabilities and hence Porter made itself liable for these pensions. The dealings of the parties reveal a more complicated problem. In one of the supplemental letters (see note 3, P. Ex. 13-b) incorporated into the Agreement, Porter agreed to assume existing pension payments to Disston’s retired non-union employees. Disston concedes that it insisted on the specific assumption because it considered these pensions to be voluntary in nature, not a liability and therefore not covered in Porter’s assumption of liabilities. It further concedes that it took a similar view of the pension rights claimed by the present non-union employee-plaintiffs. However, Disston did not procure a specific assumption of liability for them. It therefore appears that at the time the Agreement was closed both parties believed the pension rights under discussion were not Dis-ston’s liability. Under these circumstances it cannot be said that Porter’s liability therefor is clear and unambiguous. Although it may be true, as Disston contends, that Porter’s assumption of liabilities was not restricted to those listed in the Disston balance sheet it does not automatically follow that Porter’s assumption of liabilities was all inclusive. Genuine doubt is created because of the manner in which the parties dealt with the question of the so called voluntary non-union pensions. - Ordinarily Disston’s contention that the general nature of the transaction and surrounding circumstances indicate an intention that Porter would assume all of Disston’s liabilities would be very persuasive. Since the Agreement provided for Disston’s corporate dissolution it could hardly be expected that Disston would remain liable for any pensions. Moreover, since Disston was to dissolve while Porter was to continue as a going concern it is possible that only the latter could gain the economic benefit of an income tax deduction resulting from the payment of pension benefits. However, as our previous discussion indicates the manner in which the parties dealt with the pensions in question considered with the language of the documents remove it from the category of the ordinary. Disston further argues that even if the word liabilities is found to be ambiguous the language of the warranty and assumption of liability provisions in the Agreement was drafted by Porter and accepted by it without change and therefore these provisions must be construed against Porter. To support this principle it cites Monessen Bank Mortgage Pool Case, 1944, 350 Pa. 125, 38 A.2d 15, 16. The cited case does indeed hold that “in case of doubt or ambiguity a written contract should be interpreted against the party who has drawn it.” But the issue of parol evidence to resolve the ambiguity was not present in that case as here. We conclude that in viewing the documents in their entirety in the setting of the circumstances of this case the district court was correct in permitting parol evidence to resolve ambiguities surrounding the use of the word “liabilities” by the parties. Disston next argues that it was prejudicial error to permit the introduction in evidence of portions of an affidavit of John D. Thompson, a former president of Disston, who resigned on November 21, 1955. Under date of October 30, 1956, Mr. Thompson signed an affidavit which the employee-plaintiffs filed in one of their suits in opposition to a motion of Disston for summary judgment. At the trial of this third-party action, the court permitted Porter to read portions of the affidavit into the record as “admissions against interest.” Disston made a timely objection. The significant portion of what was read from Mr. Thompson’s affidavit is as follows: “At the meeting on October 14, 1955, the Board [i. e., Disston’s Board of Directors] became aware that the original 'Agreement and Plan of Reorganization’ between Henry Disston & Sons, Inc., and H. K. Porter Company, Inc., which was being presented to the Board on that day for its approval, did not provide that the H. K. Porter Company would assume any pension or retire- -íftent obligation of Henry Disston & Sons, Inc., * * *” (Emphasis supplied.) The affidavit was clearly inadmissible. It was not a vicarious admission since it was made almost a year after Mr. Thompson resigned as president of Disston. 20 Am.Jur. §§ 599, 600 (1939). Not being an admission it was not competent proof. United States v. Grant, 9 Cir., 1961, 286 F.2d 157; United States v. Mack, 7 Cir., 1957, 249 F.2d 321; Prima Products, Inc. v. Federal Trade Commission, 2 Cir., 1954, 209 F.2d 405; Keller v. Keller, 1947,160 Pa.Super. 480, 52 A.2d 373. However, the improper admission of incompetent evidence which is merely cumulative on matters which are clearly shown by other admissible evidence is harmless error. American Motorists Insurance Company v. Landes, 5 Cir., 1958, 252 F.2d 751; Standard Accident Ins. Co. v. Rossi, 8 Cir., 1929, 35 F.2d 667. The question now arises whether Mr. Thompson’s affidavit was merely cumulative. We think it was. There was independent testimony on this issue by three other witnesses, Thomas A. Bracken, Jr., George Lockhart and E. R. Moran. Mr. Bracken was an officer of the Liberty Real Estate Bank and Trust Company which owned, as trustee, a substantial minority of the Disston stock. It was with Mr. Bracken that Porter first entered the negotiations which led to the sale of the Disston Company and it was he who first received the Agreement from T. M. Evans, President of Porter. Pie was present at the stockholders meeting held on November 15, 1955, which was called to gain approval of the Agreement. Also present was Lewis M. Stevens, attorney of record as co-counsel for Dis-ston in these cases from the time it filed its answers to the complaints of the employee-plaintiffs. During the trial with Porter some question arose as to whether Mr. Stevens represented Disston or the Liberty Real Estate Bank and Trust Company during the negotiations with Porter. The doubt seems to have been resolved by Jacob Disston, Chairman of the Board of Disston, who testified that Mr. Stevens represented Disston in the negotiations between it and Porter as co-counsel with Disston’s general counsel, John C. Gilpin. Mr. Bracken testified that at that meeting, Robert Dechert, an attorney, who represented William Disston, a director and shareholder of Disston, and other shareholder members of his family, made a speech in opposition to the adoption of the Agreement. One of the grounds for this opposition was that the employee-plaintiffs who were eligible for pensions were not covered by the Agreement. Mr. Bracken also testified that the Disston Board refused to accept the Porter offer unless Porter agreed to assume the pension payments to former Disston employees then retired which Porter did. Mfi. Lockhart, who acted as counsel for Porter, also testified that Mr. Dechert said at the same stockholders meeting that the stockholders were concerned about the failure of the Agreement to make any provisions for pensions for the employee-plaintiffs and that the Agreement laid no burden on Porter in this connection. According to Mr. Lockhart though Mr. Stevens made a rejoinder to Mr. Dechert’s speech he did not mention the pension situation to which Mr. Dechert alluded. Mr. Lockhart also testified that Mr. Stevens requested him and E. R. Moran, who represented Porter in the negotiations, to visit Mr. Dechert to explain the Porter pension system and in that connection Mr. Stevens stated that although he recognized that it was Disston's obligation to take care of any pensions that might be given to employees still in Disston’s employ, explanation of the Porter pension system might satisfy Mr. Dechert with regard to the complaint of his client, William Disston, and other members of his family Mr. Moran corroborated Mr. Lock-hart’s version of Mr. Stevens’s statement. Disston complains that “whether or not Stevens was counsel for Disston on November 15, 1955, the statements alleged to have been made by him as an attorney one month after the agreement of October 15 was executed and delivered were not binding on Disston because an attorney has no such authority.” It appears, however, that Mr. Stevens was Disston’s representative in the negotiations and was present at the shareholders meeting at which the Dechert statement was made and to which he replied. His statements to Messrs. Lockhart and Moran were made on the way to the main office of Liberty Real Estate Bank and Trust Company to attend the closing on November 15, 1955, and were well within the_ range of his authority as representative of Disston in the transaction. McGarity v. New York Life Insurance Co., 1948, 359 Pa. 308, 59 A.2d 47; Brown v. Hebb, 1937, 167 Md. 535, 175 A. 602, 97 A.L.R. 366; McCormick, Evidence § 244 (1954). See Slifka v. Johnson, 2 Cir., 1947, 161 F.2d 467. His statements to Messrs. Lockhart and Moran were made in his effort to have them accompany him on his visit to Mr. Dechert in order to convince the latter to advise his clients, Mr. William Disston and members of his family, that they should not carry their opposition to the adoption of the Agreement to the point of requesting Disston to purchase their shares on the theory that a statutory merger had taken place. Mr. William Disston was a director of Disston and the stock he and his family owned, though a minority, constituted an important consideration in the entire picture. Mr. Stevens’s task was to harmonize all of the interests if possible in an acceptance of the Agreement and his statements to Messrs. Lockhart and Moran were natural incidents in the course of his negotiations. In support of its objection to the use of the statements by attorney Stevens, Disston offers Malone v. Marano, 1937, 326 Pa. 316, 320, 192 A. 254. The case is not apposite. In Malone the court excluded the testimony of a witness who swore that a man alleged to be counsel for a bank furnished a statement to the witness purporting to show a balance due decedent’s estate in the absence of any proof that the lawyer for the bank was authorized to make such an admission. The facts here do indicate that Mr. Stevens was acting as an agent for Diss-ton in the Porter negotiations and that his statements were well within the scope of his authority as such. Where an attorney acts as an agent in a business transaction for his client his authority to make out of court admissions is measured by the same tests as would be applied to other agents and where they meet these tests they are admissible as evidentiary admissions. McGarity v. New York Life Insurance Co., supra; Brown v. Hebb, supra; McCormick, Evidence, supra. Disston further argues that the testimony of Messrs. Lockhart and Moran was not corroborative of the statement in the Thompson affidavit in that it does not deal with the Board of Directors meeting concerning which Thompson made his statement. The opposition of Mr. Dechert, voiced in the shareholders meeting of November 15, 1955, to the adoption of the Agreement on the ground that it did not provide that Porter should assume the pension payments to the employee-plaintiffs without drawing any comment on the point by Mr. Stevens who represented Disston at the meeting, and Mr. Stevens’s statements to Messrs. Lockhart and Moran, which strongly imply that Disston was aware that Porter had no obligation for the disputed pensions, lay the basis for a reasonable inference that Disston’s Board of Directors was indeed aware that the Agreement did not provide for the assumption by Porter of any pension or retirement obligation of Disston. Furthermore Mr. Bracken’s testimony that the Disston Board directed him to obtain a specific assumption of the existing pension payments to retired Disston employees indicates that the Disston Board was aware that those pensions would not otherwise have been covered. It is clear that the Disston Board considered the existing pensions as well as the pensions which would accrue to the employee-plaintiffs to be a moral obligation and not a liability. It therefore follows that by only seeking to assure Porter’s assumption of the existing pensions a basis is laid for the inference that it was aware that the pensions of the employee-plaintiffs were not being assumed by Porter. Significantly Disston offered no witness to contradict the testimony of Messrs. Lockhart, Bracken and Moran. It is true that the testimony of Messrs. Lockhart, Bracken and Moran does not deal directly with the meeting of the Disston Board of Directors. But this is not critical. The critical issue is whether this testimony is corroborated by the statements in Mr. Thompson’s affidavit that the Disston Board at its meeting on October 14, 1955, was aware that Porter was not assuming the disputed pensions. It is strong and clear circumstantial evidence that at the time mentioned in Mr. Thompson’s affidavit Disston’s Board was aware that Porter was not assuming the disputed pensions. The plain and simple fact is that Diss-ton concedes “no one has seriously contended that the Disston Board considered the non-union employees pension plan to be other than voluntary.” It further concedes that “all of the so-called supporting testimony was understandable and consistent with the position taken by Disston herein if it is recognized that the speakers were talking of purely voluntary pensions, as to which there was no provision in the documents.” These concessions lead to the conclusion that Disston does not seriously contend that its Board was not aware of the fact that Porter was not going to assume what, at the time, it considered to be voluntary pensions and not a liability. Disston argues, however, that the testimony of Messrs. Lockhart, Bracken and Moran is not corroborative of the statement made in Mr. Thompson’s affidavit for the former indicates that the Disston Board was only aware that the Porter company was not assuming voluntary pensions-whereas the latter indicates that the Disston Board considered the disputed pensions to be a legal obligation, i. e., a liability and that it was aware that Porter was not assuming such a liability. This argument is without substance. The record discloses that neither Mr. Thompson’s affidavit nor the disputed testimony indicates that the Board of Directors was aware that there was any legal pension obligation. The affidavit was offered to prove only that Disston’s Board of Directors was aware that Porter was not assuming the pensions of the employee-plaintiffs. No attempt was made by Porter to show that the Disston Board considered the pensions as a legal obligation, and if Mr. Thompson made use of the word obligation in his affidavit so did Mr. Stevens in his conversation with Mr. Moran. See note 12, supra. Furthermore in its charge to the jury the court did not point out that there was evidence which, if believed, indicated that the Disston Board was aware that the disputed pensions were a legal obligation. Rather it charged the jury that: “ * * * There is testimony in this case which, if credited by you and believed, would indicate that the very thing that they are suing here now for was advanced at the Board of Directors’ meeting which approved the settlement, in opposition to it, that Porter did not assume it; so, therefore, if the Board of Directors of Disston approving this knew and understood that no provision was made for Porter to pay these pensions, then certainly Porter is not liable under the circumstances, because there was no intention to pass that liability on to Porter, if all of that testimony is credited, but the resolving of that testimony is for you, not for the Court.” (Emphasis supplied.) Contrary to the argument of Disston to the effect that this portion of the court’s charge centers upon Mr. Thompson’s affidavit alone and the use of the word “obligation” therein, the foregoing language clearly indicates that the court was directing the attention of the jury to all of the testimony which bore on the critical issue of whether Disston’s Board understood that Porter was or was not assuming the disputed pensions. The mere fact that Mr. Thompson spoke of the pensions as an “obligation” does not indicate that he was using the word in its legal sense. Disston concedes in its brief that “in view of the fact that the Disston Board considered these pensions to be completely voluntary on its part, it is extremely unlikely that Mr. Thompson actually intended to suggest that the Disston Board talked in terms of pension or retirement ‘obligation’.” The probability that the jury was misled by the use of the word “obligation” is very remote. We conclude therefore that the Thompson affidavit was merely cumulative on an issue clearly shown by other evidence and therefore its improper admission did not prejudice the substantial rights of Disston. Rule 61, F.R.C.P. 28 U.S.C.A.; Walsh v. Bekins Van Lines Co., 8 Cir., 1954, 217 F.2d 388; Atlantic Coast Line R. Co. v. Burkett, 5 Cir., 1951, 192 F.2d 941. Disston next argues that it was prejudicial error to admit parol evidence for the purpose of explaining the extent of Porter’s assumption of liabilities. The main thrust of this argument has been answered in our prior discussion. But here Disston particularly points to the testimony of Messrs. Moran and Houser. Mr. Moran, a representative of Porter, was permitted to testify concerning a conversation about paragraph 3(b) of the Agreement, (See note 2, supra.) which took place on October 11, 1955, in the presence of representatives of Porter and a group of stockholders of Disston. Porter’s president, Mr. Evans, asked whether the financial statement was a complete statement of all liabilities of Disston and the reply was that it did disclose all liabilities. Mr. Houser, Treasurer of Porter, also testified over objection as to the discussion on October 11. Mr. Houser stated that Mr. Evans, the President of Porter, read paragraph 3(b) and asked if that was a correct statement, and Mr. Bracken, representing Liberty Real Estate and Disston, answered that it was. Mr. Houser also testified that, on October 17, when the Agreement was delivered and Mr. Evans signed the letter agreeing to pay the existing pensions to retired Disston employees Mr. Evans asked how many more of those things there were that he was going to be confronted with, and Mr. Bracken replied that they had no knowledge of any additional items. Since we have already decided that the meaning of the word “liabilities” in the Agreement was ambiguous, the admission of this pa-rol evidence was not error. It obviously was introduced to prove that Porter was relying on the balance sheet of Disston which did not reveal any pension liability for non-union employees and therefore Porter did not intend to assume the pensions here involved, But Disston presses further. It not only argues that the oral evidence was inadmissible but that it was irrelevant and misleading. It contends that the parol evidence led the trial court to charge the jury that the basic issue was “whether or not Porter would be willing to pay pensions to Disston’s former employees as to whom it was assumed Disston had no contractual obligation”, whereas in reality it was “whether or not Porter must pay all of Disston’s unknown liabilities including a liability for contractual pensions to Disston’s employees if such was found to exist.” This argument is without merit. Once it was found that the word “liabilities” was ambiguous, parol evidence was admissible to show what the parties intended that word to encompass. The parol evidence provided a basis from which a reasonable jury could find that Porter did not intend to assume the disputed pensions even if they were contractual. Disston contends that it was prejudicial error to charge the jury that, if the parties had different understandings with respect to whether Porter should be liable for these pension claims and neither knew of the understanding of the other no contract existed at this point. The trial court’s charge, based on Restatement, Contracts § 71 (1932) was as follows: “You may find that either or both of the parties understood the contract to specifically include or exclude pensions from the liabilities assumed by Porter. “If both understood the contract in the same way, that meaning understood between them will control. “If they understood it differently, and one party had reason to know or actually knew of the understanding of the other, that meaning is binding. “If neither knew or had reason to know, or if both did know or have reason to know of the different meaning the party attributed to the contract, then no contract existed on this point and Porter is not liable.” It then went on to say : “The jury may also find that neither party understood the contract as specifically including or excluding the pensions. If so, the question to be answered is whether the parties intended that Porter be liable for liabilities that did not appear on the balance sheet. “If both parties had the same understanding with regard to this question, then that understanding will control, but if they had different understandings about it, and one party knew or had reason to know of the understanding of the other, then that understanding is binding upon both parties. “If neither party knew or had reason to know of the understanding of the other, then no contract existed on this point and Porter is not liable. “If both parties knew or had reason to know that the other party attributed a different meaning to the terms of the contract, then there is no contract on this point, and Porter is not liable.” We believe that the portion of the-court’s charge quoted above correctly presented the basic issue to the jury, and in view of the ambiguity involving the word “liabilities” it was for it to determine the intent of the parties regarding the disputed pensions. Disston claims that the court erred in its charge to the jury, first in granting points 1 and 2 as requested by Porter, and second in refusing points 3, 4 and 6 requested by it. Disston duly noted its exception to the court’s action in each instance. Porter’s point 1, which the court grant-, ed, was as follows: “I have been asked by the defendant (Porter) to charge that you must decide whether the Disston Company had entered into a binding contract to grant pensions to each of its employees, and in reaching your conclusion on this point you must. consider the following facts in connection with all the evidence in the case: That there was no written agreement with the employees setting forth the terms of the alleged plan; that no fund was established by Disston from which pension payments were to be made; that the employees were never required to contribute portions of their salary to the plan; that the Board of Directors never specifically authorized officers of the corporation to disseminate information relating to the alleged plan; and that the Board of Directors of Disston never authorized or approved anything but a voluntary plan. “If the testimony is to that effect, you must consider that together with all the other testimony.” Disston complains that the jury might Tiave been misled by the statement that there was no written agreement since the pamphlet entitled “New Group Insurance Benefits and Revised Pension Plan” issued in 1950 might well have constituted such a writing although it was not signed by both parties. It also complains that the statement that its Board of Directors never authorized or approved anything but a voluntary plan may also have been misleading since the original plaintiffs contended that the Disston Board had impliedly approved a contractual plan by their course of conduct in granting benefits to non-union employees similar to the benefits granted to union employees. There was no written agreement with the employees setting forth the terms of the alleged plan. The pamphlet entitled “New Group Insurance Benefit and Revised Pension Plan” was, as the court had previously charged, one factor to be considered by the jury in deciding whether Disston had made an offer of pension rights to the employee-plaintiffs. It is a fact that the Disston Board never specifically authorized anything but a voluntary plan. Elsewhere in its charge the court made it clear that the total conduct of Disston was to be considered by the jury in deciding whether the pension rights were contractual. The instructions must be considered as a whole not piecemeal. McDonough v. United States, 8 Cir., 1957, 248 F.2d 725. Porter’s point 2 which the court granted was as follows: “The mere fact that Disston failed in some documents distributed to its employees to specify that the plan was voluntary in nature does not in and of itself make the plan contractual in nature.” Disston complains that the mere fact that the pamphlet entitled “New Group Insurance Benefits and Revised Pension Plan” did not state that the plan was voluntary may have warranted the jury in concluding that this was a contractual plan since the prior documents sent the employees had specifically so stated. The particular pamphlet noted above was but one factor for the jury to consider in deciding whether Disston had made an offer of contractual pension rights to the employee-plaintiffs, and as appears from a portion of the charge later discussed herein the court adequately referred to all of the factors for the jury to consider in making that determination. Disston’s point 2 which the court refused to charge was as follows: “All written documents issued by the Disston Company to its employees are to be construed in favor of the employees of the Company.” Three Pennsylvania cases are cited to support the contention that this principle i.s applicable here. They are Diskin v. City of Philadelphia Police Pension Fund Association, 1951, 367 Pa. 273, 80 A.2d 850; Forrish v. Kennedy, 1954, 377 Pa. 370, 105 A.2d 67; and Dom v. State Employees’ Retirement Board, 1942, 345 Pa. 489, 28 A.2d 796. The cited cases are clearly distinguishable on the facts. In none of them was the issue the same as the one involved here, i. e., whether there was a contractual or voluntary pension plan? Rather, in all of the cited cases there was involved the construction of a pension plan the existence of which was not in doubt. There does not appear to have been error in this refusal. Disston’s point 3 which the court refused to charge was as follows: “When an employer creates a pension plan and announces the plan to its employees generally, without clearly stating that the plan is voluntary, the continuance of the employees to work for the Company and their compliance with the terms of the pension plan as announced will create a liability on the part of the company to such employees for pension.” The record discloses that Disston granted pensions to certain of its employees in the early 1900’s. During the 1920’s the Board of Directors of Disston instituted a pension plan to be administered by a board consisting of five- members appointed by the president of the company from among its officers and department heads. The plan specifically stated that it was voluntary and not contractual. In 1939 a pamphlet was circulated among the employees entitled “Handbook for Employees, Henry H. Disston & Sons, Inc.”, in which the pension plan was described as being voluntary and dependent on the prosperity of the company and its ability to carry the financial burden. The pamphlet was available until about the time of the entry of the United States into the second World War. In 1950 Disston’s union employees were granted pensions and thereafter Mr. Biemuller, Secretary of the Pension Board, circulated among the non-union employees a pamphlet entitled “New Group Insurance Benefits and Revised Pension Plan”. The pamphlet was distributed to all the employees who received the 1939 pamphlet. The plan was to be effective September 1,1950 and provided that pensions for employees at age 65 with 25 years of continuous service would be based upon % % of the average annual wages for the last ten years multiplied by the number of years of continuous service, with a minimum of $100, inclusive of Social Security. Employees with 30 years or more of continuous service were eligible at age 60 with no minimum. No reference was made in the pamphlet that the plan was voluntary. In 1952 a pamphlet entitled “Our Job at Disston” was prepared by Disston’s personnel director. It was a revision of a similar pamphlet issued in 1948 and was distributed to all employees. Unlike the 1948 pamphlet the 1952 revision contained a reference to pensions but made no mention of the fact that they were voluntary. Prior to the issuance of the 1950 pamphlet each person receiving a pension got a letter stating explicitly that the pension was a voluntary act on the part of the company. The reference to the voluntary nature of the pensions was discontinued for approximately two years following 1950, but it was resumed in 1953. For present purposes the foregoing highlights of the evidence concerning pensions should be sufficient. Disston’s request centered on an announcement of a pension plan “without clearly stating that the plan is voluntary”. In this it rested on the claim of the employee-plaintiffs that the 1950 pamphlet omitted any reference to the voluntary nature of the plan. But up to that time there was specific reference the Disston publications to the volun-tariness of the pensions and thereafter, in 1952, at least, in so far as letters to those pensioned were concerned, the reference to the voluntary character of the pension was restored. The court was therefore justified in refusing the request in favor of the language it used which was founded on the broader base of evidence before the jury. in “IX. No Contractual Rights Conferred: Neither the establishment of this plan, nor the granting of a pension allowance, nor any other action now or hereafter taken by the Pension Board, or by the Officers of the Company, shall be held or construed as creating a contract or giving to any officer, agent, or employee a right to be retained in the service, or any right to a pension allowance, and the Company expressly reserves, unaffected hereby, its right to discharge without liability, other than for salary or wages due and unpaid, any employee, whenever the interests of the Company may, in its judgment, so require.” Disston’s point 6 which the court refused to charge was as follows: “The Disston Company can be bound by the pamphlets which it issued and its conduct with regard to pensions, even though it had no intention to assume any legal obligation, if the language and the conduct of the company are such that a reasonable employee of ordinary carefulness and intelligence would understand that such was its intention.” It very well may be that the requested charge was based upon a sound theory of law. However, this does not conclude the matter. As we have noted before, the charge must be viewed as a whole. With this principle in view we believe that the refusal to grant the requested point was not prejudicial. The court made it clear that it was Disston’s conduct and not its subjective intention which was critical. Disston’s point went to the same issue. It is not prejudicial error to refuse to give a requested instruction even though it be an accurate statement of the law, if the issues have been fairly and correctly covered in the general instructions given. Thiringer v. Barlow, 10 Cir., 1953, 205 F.2d 476. Finally Disston charged that the court erred in ruling that it could recover no more than $365,000. In view of the disposition of this appeal it is not necessary to deal with the issue. For the same reason it is unnecessary to discuss the several grounds offered by Porter to support the judgment. In summary Disston held tenaciously to its basic theory that the documents evidencing the contract between it and Porter were clear and unambiguous and that no parol evidence was admissible to explain the terms thereof. Its grounds for reversal flow from the rejection of its fundamental proposition but the ruling of the court thereon was proper. The issues in the case were complicated. A review of the record discloses that the presiding judge governed the trial fairly and without prejudice to the appellant, Disston. It presented the issues and applicable law to the jury adequately. The judgment will be affirmed. . The Porter Companies lose their separate significance for they were merged in H. K. Porter Company, Inc., a Delaware corporation. . Pertinent provisions of the Agreement are: “Porter agrees that it shall cause Pittsburgh to assume and become liable for all of Disston’s indebtedness, obligations and liabilities as the same may exist at the time of closing and that it shall cause Pittsburgh to execute and deliver to Disston such instruments as may be deemed necessary or advisable by counsel for Disston to signify such assumption of liabilities. “3. Disston represents and warrants, all of which representations and warranties shall be true at the time of closing and shall survive the closing, that: “(a) Disston is a corporation duly organized and existing under the laws of Pennsylvania and is in good standing; “(b) The balance sheet dated December 31, 1954 attached hereto as Exhibit ‘A’ is a true and complete statement, as of that date, of the financial condition of Disston and of its assets and liabilities, prepared in accordance with accepted principles of accounting; “(e) Erom the date of the said balance sheet there shall have been no substantially adverse changes in the assets, liabilities or financial condition of Disston, except for changes as have resulted from its normal operation in the usual and ordinary course of its business; “(d) Prom the date of the said balance sheet no dividends or distributions of capital, surplus or profits shall have been paid and/or declared by Disston, whether in redemption of any of its outstanding shares of capital stock or otherwise; “(e) Disston has good and marketable title to all of the property to be so transferred to Pittsburgh hereunder, free and clear of any and all liens or encumbrances or restrictions, except current real estate taxes due but not delinquent, and easements and restrictions of record affecting real property; “(f) There is no litigation, proceeding or controversy pending, or to the knowledge of Disston threatened, which would affect Disston, its assets or business, or the performance by it of any of its obligations hereunder; and Disston is not in default with respect to any judgment, order, writ, injunction, decree, rule or regulation of any court or administrative agency; “(g) Disston has filed with the appropriate governmental agencies, federal, state and local, all tax returns required to be filed by it and its federal income tax returns have been examined by the Internal Revenue Service to and including the calendar year 1952 and there are no unpaid proposed assessments of such taxes against it for such period. All liability for taxes shown on said returns filed or for taxes due pursuant to said examinations have been paid or the liability therefor has been provided for in the said balance sheet. All federal and state income taxes for periods subsequent to the periods covered by said returns have been paid or fully accrued; “(h) Disston has filed all renegotiation reports for the years to and including the calendar year 1954, and no liability has been shown on the said returns or has been asserted by the United States Government with respect to Disston’s defense business.” . “October 15, 1955 “Henry Disston & Sons, Inc., Unruh & Milnor Streets, Philadelphia, Penna. Gentlemen:— In connection with the Agreement and Plan of Reorganization duly executed today by our Companies, we have discussed the following with you which shall be considered an addition to Paragraph 3-Sub-paragraph C of the Agreement of this date. Pensions presently being paid and which have been paid for some time previously to former employees, not members of bargaining units, shall be continued on a monthly basis not to exceed $6,468.77, as of the date of this contract and shall be continued by H. K. Porter Company, Inc., for the balance of the lives of said employees except in the case of payments to S. Horace Disston, which shall continue in the amount of Six Hundred and Twenty-Five Dollars instead of Eight Hundred Thirty-Three Dollars and thirty-three cents. Furthermore, in connection with the contract we have executed this day covering the proposed transfer of assets of your Company pursuant to a Plan of Reorganization, to our Company, this is to advise you that we are aware of and agree to assume the liability of your Company in connection with its Employment contract, or contracts, with Mr. John Thompson, at the rate of $50,000.00 per year for a length of time not to exceed April 15, 1959. Very truly yours, H. K. Porter Company By T. M. Evans, President” (Exhibit P-13B) “October 15, 1955 “H. K. Porter Company, Inc., Pittsburgh, Pennsylvania. Gentlemen:— “In connection with the Agreement and Plan of Reorganization duly executed today by our two companies, we have discussed the following with you which we understand shall be considered as additions to said Agreement: “1. If, under the provisions of numbered paragraph 2 of such Agreement, Porter is requested to apply for a listing of the Preferred Stock, Porter agrees to prepare and furnish an appropriate registration statement: “2. Although not so disclosed on the balance sheet marked ‘Exhibit A’, there is presently an option held by John Thompson to purchase 4750 shares of the presently unissued but authorized Capital Stock of Disston, for $45.00 cash per share, 2375 shares of which can be so purchased now and the remaining 2375 shares on or after April 15, 1956. Any action by Disston in purchasing said option for a sum not exceeding $95,000.00 will be considered as an exception to and no breach of the provisions of numbered paragraph 3(e) of said Agreement. “3. With respect to numbered paragraph 3(f) of the Agreement, there is presently pending against Disston, a suit by Mr. Blum, a former employee, for royalties allegedly due him concerning a certain saw patent, which suit was filed in 1948 in Common Pleas Court No. 7 of Philadelphia, Cause No. 5038, but has not been pressed for trial. Liability of Diss-ton thereunder is estimated not to exceed $575,000.00, substantially all of which has been accrued on Disston’s books. Henry Disston & Sons, Inc. by John D. Thompson President “Acknowledged to and agreed to this 15th day of October 1955. H. K. Porter Company, Inc. by T. M. Evans President” (Exhibit P-13C) . The pertinent provisions are: “Whereas, Porter desires to signify to Disston its assumption of Disston’s liabilities at the said closing with the exclusion of the foregoing, all pursuant to the Agreement: “Now, Therefore, Porter intending to be legally bound, does hereby agree with Disston that Porter shall and does hereby assume liability for all of the indebtedness, obligations and liabilities of Disston as the same may exist at the time of the closing provided for in the Agreement, to wit, 11:00 o’clock A.M., E. S. T., on November 16, 1955, including the liabilities specifically referred to in the two supplements thereto, dated October 15, 1955, and constituting part of the Agreement, provided, however, that such assumption shall not include liability for any claims by dissenting or objecting stockholders of Disston arising by reason of the adoption and approval of the Agreement and the performance of its terms by Disston, or any liabilities of Disston to H. K. Porter Company, Inc., arising under the Agreement.” . Claims were also made for paid-up life insurance and severance pay. . Mr. Disston testified as follows: “Q. I notice from the answer from which I read was signed by Mr. Gilpin and Mr. Stevens. Mr. Gilpin was company counsel for many years? A. Yes, sir. “Q. And Mr. Stevens, that is Mr. Lewis M. Stevens? A. Yes. “Q. And he was engaged by the company in connection with the negotiations for the transaction with Porter Company, was he not? A. Well, as I understand it, he was retained by Gilpin, Gilpin’s office. “Q. I didn’t get the last part. A. He was retained by the office of Gilpin and Gilfillan as co-counsel, whichever you fellows call it.” . Mr. Bracken testified without objection as follows: “Q. Did you attend that meeting, Mr. Bracken? A. Yes, sir, I did. “Q. Was Mr. Lewis Stevens there? A. He was, I think be conducted the meeting. “Q. Mr. Robert Decbert? A. Yes, sir. “Q. He is a member of our Philadelphia Bar? A. Yes, sir. “Q. And' he was representing some stockholders, was he not? A. He was, yes. “Q. Did he make a speech in opposition to the adoption of the agreement by the stockholders? A. Ho did. “Q. And one of the grounds for his opposition was that the people who were eligible for pension at Disston were not covered by the agreement? A. That is correct, yes.” . Mr. Bracken testified on this point as follows: “Q. Will you tell us generally what took place at the meeting [of the Board of Directors of Disston on October 14, 1955] ? A. Up to that time the proposal as made by Mr. Evans was known to all that were not only on the Board but as well representing ownership and they were prepared to vote. “Mr. Mungall: I would like to enter an objection to the testimony relating to what transpired at the Board meeting, your Honor. “The Court: Overruled. “The Witness: They were prepared to vote yes or no on whether or not the offer should be accepted. That was in accordance with the proposal as agreed upon in the early part of the week, in which we accepted the signed paper subject to the approval of the Board. In fact, it was subject to the approval of two bodies, first the Trust Committee of the bank, which met on Thursday, and then the Board, which met on Friday. This was approved by the Board with one qualification, and I made known that qualification to Mr. Shoffner, [a Vice President of Porter] who was waiting on our bank floor to hear the result of the action by the Board of Directors. “Q. And what was that qualification? • “A. That those employees who were on pension and had received letters indicating that it was a voluntary payment, could be terminated at any time, that the Board insisted that they be specifically guaranteed so that they would not be disturbed. Mr. Evans agreed to that on Friday. “Q. Was the amount of those pensions payable annually calculated? “A. Well, that was it. That afternoon as we discussed it before the Board we had been advised by the comptroller of the company that the totals of those pensions amounted to $52,000 a year. Mr. Evans was so advised on that Friday afternoon.” ***** “Q. As the result of your telephone conversation with Mr. Evans did you specifically meet with him on October 17? A. He indicated on the phone that that would be acceptable to him. He would be willing to entertain that guarantee, stating that he would be in on Monday and would be prepared to discuss it at that time. “Q. And did he come in on Monday, October 17? A. That is correct. “Q. What did you tell him when he arrived? “Mr. Mungall: Objected to. “The Court: Overruled. “A. That the amount was not $52,-000 but $77,000, and he was really upset, really upset.” ***** “Q. And he took on those, or a least the pension payments, to your utter amazement, did he not? A. Bear in mind, I wasn’t the company. What I thought or didn’t think didn’t make much difference, you know. “Q. Well, it was to your utter amazement, was it not? A. I will say I was surprised, yes. “Q. Well, haven’t you said prior to this that it was to your utter amazement? A. Well, yes, I was surprised that he took it over. “Q. You wore amazed? A. Amazed, all right. I won’t quarrel with you.” . On this point Mr. Lockhart testified as follows: “Q. Did you attend the stockholders meeting at the Disston Company on November 15, 1955? A. I did. “Q. Was Mr. Robert Dechert there? A. He was. “Q. And did he make some comments to the meeting with respect to the proposed agreement or plan of reorganization? A. Yes, he did. “Q. Did any of those comments deal with the question of pensions? A. Yes, they did. “Q. What did he say? “Mr. Mungall: Objection. “The Court: Overruled. “A. He spoke on the point that he was representing Mr. William Disston and certain members of his family, who were the holders of, he said, a considerable number of shares of the Disston stock and that they were concerned about the failure of the agreement and plan of reorganization to make any provision for the pensioning of certain employees, he said about 36 in number, of the Disston Company who were between 60 and 65 years of age, who were still working at the Diss-ton Company, and he felt that there was a moral obligation on the Disston Company to take care of them, but that the agreement and plan of reorganization laid no burden on Porter to see to any pension payments to those individuals. For that reason and for one other reason that he advanced at the meeting he advocated that the stockholders vote to adjourn the meeting until the Disston Company could negotiate with the Porter Company an agreement which would provide for the things which he felt were wanting.” . On this point Mr. Lockhart testified as follows: “Q. Did any representative of the Disston Company contradict any of the statements Mr. Dechert made with regard to the pensions? A. No. Mr. Stevens asked to reply to Mr. Dechert’s objections and his reply was in the form of recounting that that morning His Honor Judge Lord of the Court of Common Pleas of Philadelphia County, I believe, had entered an order dismissing an attempt to enjoin the holding of the stockholders meeting and in doing so had stated that the agreement and plan of reorganization represented a question of business judgment, and he felt that the company and its stockholders had to abide by the business judgment of its directors as to whether the agreement should be voted on, and that it was not the province of the Court to interfere with that business judgment. “Q. He didn’t mention the question of pensions at all? A. He did not, sir.” . Mr. Lockhart testified on this point as follows: “Q. Did you subsequently go to see Mr. Robert Dechert? A. I did, sir. “Q. And how did you come to do that? A. Mr. Stevens asked us as a favor if Mr. Moran and I would go to see Mr. Dechert. “Q. For what purpose? A. For one main purpose and perhaps a subsidiary one. The main purpose was to see if making Mr. Dcchert acquainted with the policy which Porter Company would follow with regard to pensioning employees of a company whose assets were taken over by Porter would be of any effect in getting Mr. Dechert to advise his clients, Mr. William Disston and members of his family, that they shouldn’t go through with the dissent to the agreement and plan of reorganization to the extent of requesting a payout of their shares on any theory that there was a statutory merger. “Q. Did Mr. Stevens say anything with respect to the responsibility of Disston Company or the Porter Company with respect to peojjle still working for Diss-ton who had not been pensioned? “Mr. Mungall: Objection. “The Court: I will overrule that objection. “A. Yes, he did. “By Mr. Strubing: “Q. What did he say? A. He said that this is a problem which Disston has created for itself, and it is not a Porter problem, but we want you gentlemen to see if you can in any way bring peace out of this situation which from the subsidiary standpoint might cause William L. Disston to lose his job with the continuing operation of Disston and he felt, for a young man who had a career ahead of him in the family named company, that it would be a great mistake for the young man to persist in something which could evolve into no conceivable gain as far as Porter Company was concerned.” . Mr. Moran testified as follows: “Q. How did you come to call on Mr. Dechert? A. Mr. Lockhart and myself were in Mr. Stevens’ office on the morning of November 16. We walked with him from that office over to the main office of the Liberty Real Estate Bank and Trust Company to attend the closing, and during that period of time while Mr. Lockhart and I were with Mr. Stevens he stated that he would appreciate it if Mr. Lockhart and I would go with him to the office of Robert Dechert after the closing to explain the Porter pension program as applied to Porter’s employees, stating to us in that connection that although he realized and recognized that it was Disston’s obligation to take care of any pensions that might be given to any of Disston’s employees who were still working for Disston at that time, and was not Porter’s obligation, he felt that if we would explain to Mr. Dechert the Porter pension program it might satisfy him as far as the action that he had been undertaking on behalf of his client, William Disston, other members of the Diss-ton family.” . The plan provided as follows: Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant? A. auto industry B. chemical industry C. drug industry D. food industry E. oil & gas industry F. clothing & textile industry G. electronic industry H. alcohol and tobacco industry I. other J. unclear Answer:

sc_lcdisposition

B

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. COMMERCIAL OFFICE PRODUCTS CO. No. 86-1696. Argued January 13, 1988 Decided May 16, 1988 MARSHALL, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and III, in which BREN-nan, White, Blacrmun, and O’CONNOR, JJ., joined, and an opinion with respect to Parts II-B and II-C, in which BRENNAN, White, and Black-mun, JJ., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, post, p. 125. Stevens, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 126. Kennedy, J., took no part in the consideration or decision of the case. Richard J. Lazarus argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Deputy Solicitor General Ayer, Charles A. Shanor, Gwendolyn Young Reams, Vella M. Fink, and Donna J. Brusoski. James L. Stone argued the cause for respondent. With him on the brief was Brent T. Johnson. A brief of amici curiae urging reversal was filed for the State of Colorado et al. by Duane Woodard, Attorney General of Colorado, Charles B. Howe, Deputy Attorney General, Richard-H. Forman, Solicitor General, Mary Ann F. Whiteside, First Assistant Attorney General, Joseph I. Lieberman, Attorney General of Connecticut, Frederick D. Cooke, Jr., Acting Corporation Counsel of the District of Columbia, William L. Webster, Attorney General of Missouri, W. Cary Edwards, Attorney General of New Jersey, Robert Abrams, Attorney General of New York, Jim Mat-tox, Attorney General of Texas, Donald J. Hanaway, Attorney General of Wisconsin, and Joseph B. Meyer, Attorney General of Wyoming. Robert E. Williams, Douglas S. McDowell, and Jeffrey A. Norris filed a brief for the Equal Employment Advisory Council as amicus curiae. Justice Marshall announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and III, and an opinion with respect to Parts II-B and II-C, in which Justice Brennan, Justice White, and Justice Blackmun joined. This case raises two questions regarding the time limits for filing charges of employment discrimination with the Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. § 2000e et seq. The primary question presented is whether a state agency’s decision to waive its exclusive 60-day period for initial processing of a discrimination charge, pursuant to a worksharing agreement with the EEOC, “terminates” the agency’s proceedings within the meaning of § 706(c) of Title VII, 78 Stat. 260, as amended in 1972, 86 Stat. 104, 42 U. S. C. §2000e-5(c), so that the EEOC immediately may deem the charge filed. In addition, we must decide whether a complainant who files a discrimination charge that is untimely under state law is nonetheless entitled to the extended 300-day federal filing period of § 706(e) of Title VII, 78 Stat. 260, as amended in 1972, 86 Stat. 105, 42 U. S. C. §2000e-5(e). I The time limit provisions of Title VII as interpreted by this Court establish the following procedures for filing discrimination charges with the EEOC. As a general rule, a complainant must file a discrimination charge with the EEOC within 180 days of the occurrence of the alleged unlawful employment practice. § 706(e), 42 U. S. C. §2000e-5(e). If a complainant initially institutes proceedings with a state or local agency with authority to grant or seek relief from the practice charged, the time limit for filing with the EEOC is extended to 300 days. Ibid. In order to give States and localities an opportunity to combat discrimination free from premature federal intervention, the Act provides that no charge may be filed with the EEOC until 60 days have elapsed from initial filing of the charge with an authorized state or local agency, unless that agency’s proceedings “have been earlier terminated.” § 706(c), 42 U. S. C. § 2000e-5(c). The EEOC’s referral of a charge initially filed with the EEOC to the appropriate state or local agency properly institutes the agency’s proceedings within the meaning of the Act, and the EEOC may hold the charge in “‘suspended animation’” during the agency’s 60-day period of exclusive jurisdiction. Love v. Pullman Co., 404 U. S. 522, 525-526 (1972). In light of the 60-day deferral period, a complainant must file a charge with the appropriate state or local agency, or have the EEOC refer the charge to that agency, within 240 days of the alleged discriminatory event in order to ensure that it may be filed with the EEOC within the BOO-day limit. See Mohasco Corp. v. Silver, 447 U. S. 807, 814, n. 16 (1980). If the complainant does not file within 240 days, the charge still may be timely filed with the EEOC if the state or local agency terminates its proceedings before 300 days. See ibid. The central question in this case is whether a state agency’s waiver of the 60-day deferral period, pursuant to a work-sharing agreement with the EEOC, constitutes a “termination” of its proceedings so as to permit the EEOC to deem a charge filed and to begin to process it immediately. This question is of substantial importance because the EEOC has used its statutory authority to enter into worksharing agreements with approximately three-quarters of the 109 state and local agencies authorized to enforce state and local employment discrimination laws. See § 709(b), 86 Stat. 107-108, 42 U. S. C. § 2000e-8(b) (authorizing the EEOC to “enter into written agreements” with state and local agencies to promote “effective enforcement” of the Act); Brief for Petitioner 4 (EEOC has entered into worksharing agreements with approximately 81 of 109 authorized state and local agencies). These worksharing agreements typically provide that the state or local agency will process certain categories of charges and that the EEOC will process others, with the state or local agency waiving the 60-day deferral period in the latter instance. See, e. g., Worksharing Agreement between Colorado Civil Rights Division and EEOC, App. to Pet. for Cert. 48a-49a. In either instance, the nonprocessing party to the worksharing agreement generally reserves the right to review the initial processing party’s resolution of the charge and to investigate the charge further after the initial processing party has completed its proceedings. See, e. g., id., at 47a. Whether a waiver of the 60-day deferral period pursuant to a worksharing agreement constitutes a “termination” of a state or local agency’s proceedings will determine not only when the EEOC may initiate its proceedings, but also whether an entire class of charges may be timely filed with the EEOC in the first instance. The facts of the instant case concretely reflect what is at stake. On March 26, 1984, Suanne Leerssen filed a charge of discrimination with petitioner EEOC. She alleged that 290 days earlier, respondent Commercial Office Products Company had discharged her because of her sex in violation of Title VII. On March 30, the EEOC sent a copy of Leers-sen’s charge and a charge transmittal form to the Colorado Civil Rights Division (CCRD), which is authorized by the State to process charges of employment discrimination. The form stated that the EEOC would initially process the charge, pursuant to the worksharing agreement between the EEOC and the CCRD. The CCRD returned the transmittal form to the EEOC, indicating on the form that the CCRD waived its right under Title VII to initially process the charge. On April 4, the CCRD sent a form letter to Leerssen explaining that it had waived its right to initial processing but stating that it still retained jurisdiction to act on the charge after the conclusion of the EEOC’s proceedings. If the CCRD’s waiver “terminated” its proceedings, then Leerssen’s charge was filed with the EEOC just under the 300-day limit. If the waiver was not a “termination,” however, then the charge was not timely filed with the EEOC because the 60-day deferral period did not expire until well after the 300-day limit. The timeliness issue was raised in this case when the EEOC issued an administrative subpoena for information relevant to Leerssen’s charge. Respondent refused to comply with the subpoena, maintaining that the EEOC lacked jurisdiction to investigate the charge because it was not timely filed. The EEOC commenced an action in the United States District Court for the District of Colorado seeking judicial enforcement of the subpoena. The District Court agreed with respondent and dismissed the EEOC’s enforcement action, holding that the EEOC lacked jurisdiction over Leerssen’s charge because it was not timely filed. See Civil Action No. 85-K-1385 (June 6, 1985), App. to Pet. for Cert. 23a. The Court of Appeals for the Tenth Circuit affirmed. 803 F. 2d 581 (1986). As a threshold matter, the Court of Appeals rejected respondent’s contention that the extended 300-day federal filing period was inapplicable because Leerssen had failed to file her charge with the CCRD within the State’s own 180-day limitations period. Id., at 585-586, and n. 3. The Court of Appeals agreed with the District Court, however, that Leerssen’s charge was not filed within the 300-day period and that the EEOC therefore lacked jurisdiction over the charge. The Court of Appeals reasoned that a state agency “terminates” its proceedings within the meaning of § 706(c) only when it “completely surrenders its jurisdiction over a charge.” Id., at 587. Because the CCRD retained jurisdiction over Leerssen’s charge, reserving the right to act at the conclusion of the EEOC’s proceedings, it did not “finally and unequivocally terminate its authority” over the charge as the plain language of the statute required. Id., at 590. The Court of Appeals expressly disagreed with the decision of the First Circuit in Isaac v. Harvard University, 769 F. 2d 817 (1985). The First Circuit had upheld the EEOC’s view that a waiver of the right to initially process a charge constitutes a “termination,” reasoning that the language of the Act is ambiguous and that the history and purposes of the Act support the EEOC’s construction. Judge McKay dissented from the opinion of the Court of Appeals in this case, arguing that the EEOC should prevail for the reasons offered by the First Circuit. We granted certiorari to resolve the conflict between the First and the Tenth Circuits, 482 U. S. 926 (1987), and we now reverse. II A First and foremost, respondent defends the judgment of the Court of Appeals on the ground that the language of the statute unambiguously precludes the conclusion that the CCRD’s waiver of the deferral period “terminated” its proceedings. According to respondent, “terminated” means only “‘completed’” or “‘ended.’” Brief for Respondent 14. Respondent urges that this definition is met only when a state agency, in the words of the Court of Appeals, “completely relinquish[es] its authority to act on the charge at that point or in the future” 803 F. 2d, at 589, n. 13 (emphasis in original). Because the CCRD retained authority to reactivate its proceedings after the EEOC’s resolution of the charge, respondent maintains that the CCRD did not “terminate” its proceedings within the meaning of the Act. We cannot agree with respondent and the Court of Appeals that “terminate” must mean “to end for all time.” Rather, we find persuasive the determination of the First Circuit that the definition of “termination” also includes “cessation in time.” The First Circuit noted that this -definition is included in both Webster’s Third New International Dictionary 2359 (1976) (definition of “terminate”) and Black’s Law Dictionary 1319 (5th ed. 1979) (definition of “termination”). See Isaac, 769 F. 2d, at 820, 821, n. 5. Moreover, the First Circuit correctly observed that common usage of the words “terminate,” “complete,” or “end” often includes a time element, as in “ending negotiations despite the likely inevitability of their resumption” or “terminating work on the job-site knowing that it will resume the next day.” Id., at 821. These observations support the EEOC’s contention that a state agency “terminates” its proceedings when it declares that it will not proceed, if it does so at all, for a specified interval of time. To be sure, “terminate” also may bear the meaning proposed by respondent. Indeed, it may bear that meaning more naturally or more frequently in common usage. But it is axiomatic that the EEOC’s interpretation of Title VII, for which it has primary enforcement responsibility, need not be the best one by grammatical or any other standards. Rather, the EEOC’s interpretation of ambiguous language need only be reasonable to be entitled to deference. See Oscar Mayer & Co. v. Evans, 441 U. S. 750, 761 (1979). The reasonableness of the EEOC’s interpretation of “terminate” in its statutory context is more than amply supported by the legislative history of the deferral provisions of Title VII, the purposes of those provisions, and the language of other sections of the Act, as described in detail below. Deference is therefore appropriate. B The legislative history of the deferral provisions of Title VII demonstrates that the EEOC’s interpretation of § 706(c) is far more consistent with the purposes of the Act than respondent’s contrary construction. The deferral provisions of §706 were enacted as part of a compromise forged during the course of one of the longest filibusters in the Senate’s history. The bill that had passed the House provided for “deferral” to state and local enforcement efforts only in the sense that it directed the EEOC to enter into agreements with state agencies providing for the suspension of federal enforcement in certain circumstances. See H. R. 7152, 88th Cong., 2d Sess., §708, 110 Cong. Rec. 2511-2512 (1964). The House bill further directed the EEOC to rescind any agreement with a state agency if the EEOC determined that the agency was no longer effectively exercising its power to combat discrimination. See ibid. In the Senate, this bill met with strenuous opposition on the ground that it placed the EEOC in the position of monitoring state enforcement efforts, granting States exclusive jurisdiction over local discrimination claims only upon the EEOC’s determination that state efforts were effective. See, e. g., id., at 6449 (remarks of Sen. Dirksen). The bill’s opponents voiced their concerns against the backdrop of the federal-state civil rights conflicts of the early 1960’s, which no doubt intensified their fear of “the steady and deeper intrusion of the Federal power.” See id., at 8193 (remarks of Sen. Dirksen). These concerns were resolved by the “Dirksen-Mansfield substitute,” which proposed the 60-day deferral period now in § 706(c) of the Act. See 110 Cong. Rec., at 11926-11935. The proponents of the Dirksen-Mansfield substitute identified two goals of the deferral provisions, both of which fully support the EEOC’s conclusion that States may, if they choose, waive the 60-day deferral period but retain jurisdiction over discrimination charges by entering into work-sharing agreements with the EEOC. First, the proponents of the substitute deferral provisions explained that the 60-day deferral period was meant to give States a “reasonable opportunity to act under State law before the commencement of any Federal proceedings.” Id., at 12708 (remarks of Sen. Humphrey). Nothing in the waiver provisions of the worksharing agreements impinges on the opportunity of the States to have an exclusive 60-day period for processing a discrimination charge. The waiver of that opportunity in specified instances is a voluntary choice made through individually negotiated agreements, not an imposition by the Federal Government. Indeed, eight worksharing States and the District of Columbia filed a brief as amici in this case, explaining their satisfaction with the operation of the waiver provisions of the worksharing agreements: “By clarifying primary responsibility for different categories of charges, work-sharing agreements benefit both the EEOC and the states.” Brief for Colorado et al. as Amici Curiae 5. Moreover, most worksharing agreements are flexible, permitting States to express interest in cases ordinarily waived under the agreement and to call upon the EEOC to refrain from assuming jurisdiction in such cases. See, e. g., Worksharing Agreement Between CCRD and EEOC, App. to Pet. for Cert. 49a. In contrast, respondent’s argument that States should not be permitted to waive the deferral period because its creation reflected a congressional preference for state as opposed to federal enforcement is entirely at odds with the voluntarism stressed by the proponents of deferral. Congress clearly foresaw the possibility that States might decline to take advantage of the opportunity for enforcement afforded them by the deferral provisions. It therefore gave the EEOC the authority and responsibility to act when a State is “unable or unwilling” to provide relief. 110 Cong. Rec. 12725 (1964) (remarks of Sen. Humphrey). This Court, too, has recognized that Congress envisioned federal intervention when “States decline, for whatever reason, to take advantage of [their] opportunities” to settle grievances in “a voluntary and localized manner.” Oscar Mayer & Co. v. Evans, 441 U. S., at 761. As counsel for the EEOC explained, deferral was meant to work as “a carrot, but not a stick,” affording States an opportunity to act, but not penalizing their failure to do so other than by authorizing federal intervention. See Tr. of Oral Arg. 11. The waiver provisions of worksharing agreements are fully consistent with this goal. In addition to providing States with an opportunity to forestall federal intervention, the deferral provisions were meant to promote “time economy and the expeditious handling of cases.” 110 Cong. Rec. 9790 (1964) (remarks of Sen. Dirksen). Respondent’s proposed interpretation of § 706(c), adopted by the Court of Appeals, is irreconcilable with this purpose because it would result in extraordinary inefficiency without furthering any other goal of the Act. The EEOC would be required to wait 60 days before processing its share of discrimination claims under a worksharing agreement, even though both the EEOC and the relevant state or local agency agree that the State or locality will take no action during that period. Or, in an effort to avoid this pointless 60-day delay, state and local agencies could abandon their work-sharing agreements with the EEOC and attempt to initially process all charges during the 60-day deferral period, a solution suggested by respondent. See Brief for Respondent 29-30. Such a solution would create an enormous backlog of discrimination charges in States and localities, preventing them from securing for their citizens the quick attention to discrimination claims afforded under worksharing agreements. Or, in another scenario proposed by respondent, see id., at 29, n. 29, state or local agencies could rewrite their worksharing agreements with the EEOC to provide for “termination” of state or local proceedings in accordance with respondent’s definition of that term — complete relinquishment of jurisdiction. This solution would prevent a pointless 60-day delay, but it would also preclude a State’s reactivation of a discrimination charge upon the conclusion of federal proceedings. Requiring that States completely relinquish authority over claims in order to avoid needless delay turns on its head the dual purposes of the deferral provisions: deference to the States and efficient processing of claims. As the amici States observe, such a requirement “frustrates the congressional intent to ensure state and local agencies the opportunity to employ their expertise to resolve discrimination complaints.” Brief for Colorado et al. as Amici Curiae 1.. The most dramatic result of respondent’s reading of the deferral provisions is the preclusion of any federal relief for an entire class of discrimination claims. All claims filed with the EEOC in worksharing States more than 240 but less than 300 days after the alleged discriminatory event, like Leers-sen’s claim in this case, will be rendered untimely because the 60-day deferral period will not expire within the 300-day filing limit. Respondent’s interpretation thus requires the 60-day deferral period — which was passed on behalf of state and local agencies — to render untimely a claim filed within the federal 300-day limit, despite the joint efforts of the EEOC and the state or local agency to avoid that result. As petitioner epigrammatically observes, a claim like Leerssen’s that is filed with the EEOC within the last 60 days of the federal filing period is “too early until it is too late.” Brief for Petitioner 25. This severe consequence, in conjunction with the pointless delay described above, demonstrates that respondent’s interpretation of the language of § 706(c) leads to “absurd or futile results . . . ‘plainly at variance with the policy of the legislation as a whole,”’ which this Court need not and should not countenance. United States v. American Trucking Assns., Inc., 310 U. S. 534, 543 (1940), quoting Ozawa v. United States, 260 U. S. 178, 194 (1922). C The EEOC’s construction of § 706(c) also finds support in other, related sections of Title VII. These sections reinforce our reading of the legislative history that the 1964 Congress did not intend to preclude the operation of the waiver provisions of the worksharing agreements now widely in force. Section 706(d) provides that when a member of the EEOC, rather than an individual complainant, files a discrimination charge in a State or locality with concurrent jurisdiction, “the Commission shall, before taking any action with respect to such charge, notify the appropriate State or local officials and, upon request, afford them a reasonable time, but not less than sixty days . . . unless a shorter period is requested, to act.” 42 U. S. C. §2000e-5(d) (emphasis added). This language clearly permits state and local agencies to waive the 60-day deferral period and thus authorize the EEOC to take immediate action in cases arising under § 706(d). There is every reason to believe that Congress intended the same result in § 706(c), notwithstanding the variance in language. The legislative history of the deferral provisions reflects the legislators’ understanding that the time limits of §§ 706(c) and (d) were the same. See, e. g., 110 Cong. Rec. 12690 (1964) (remarks of Sen. Saltonstall); id., at 15896 (remarks of Rep. Celler). Moreover, this Court already has recognized in Love v. Pullman Co., 404 U. S., at 526-527, n. 6, that “the difference in wording between [the two sections] seems to be only a reflection of the different persons who initiate the charge.” We concluded in Love that “[t]here is no reason to think” that Congress meant to permit the EEOC to hold a claim in abeyance during the deferral period under § 706(d), but not under § 706(c) — even though the former section expressly authorizes such action, and the latter section does not. Ibid. Similarly, in the instant case, there is no reason to think that Congress meant to make the deferral period waivable by States under § 706(d) when the EEOC files a claim, but mandatory under § 706(c) when an individual files a claim. The EEOC’s interpretation of § 706(c) also finds support in provisions of the Act calling for formal cooperation between the EEOC and state and local agencies. Section 705(g)(1) gives the EEOC the power “to cooperate with and, with their consent, utilize regional, State, local, and other agencies.” 78 Stat. 258, 42 U. S. C. §2000e-4(g)(1). Section 709(b) specifies that “[i]n furtherance of such cooperative efforts, the Commission may enter into written agreements with such State or local agencies.” 86 Stat. 108, 42 U. S. C. §2000e-8(b). These sections clearly envision the establishment of some sort of worksharing agreements between the EEOC and state and local agencies, and they in no way preclude provisions designed to avoid unnecessary duplication of effort or waste of time. Because the EEOC’s interpretation of the “termination” requirement of § 706(c) is necessary to give effect to such provisions in most of the existing worksharing agreements, we find that interpretation more consistent with the cooperative focus of the Act than respondent’s contrary construction. I — I 1-H hH In the alternative, respondent argues in support of the result below that the extended 300-day federal filing period is inapplicable to this case because the complainant failed to file her discrimination charge with the CCRD within Colorado’s 180-day limitations period. Respondent reasons that the extended 300-day filing period applies only when “the person aggrieved has initially instituted proceedings with a state or local agency with authority to grant or seek relief” from the practice charged, § 706(e), 42 U. S. C. § 2000e-5(e), and that in the absence of a timely filing under state law, a state agency lacks the requisite “authority to grant or seek relief.” The Tenth Circuit rejected this argument below, as has every other Circuit to consider the question, on the ground that the words “authority to grant or seek relief” refer merely to enabling legislation that establishes state or local agencies, not to state limitations requirements. We join the Circuits in concluding that state time limits for filing discrimination claims do not determine the applicable federal time limit. Although respondent is correct that this Court’s opinion in Oscar Mayer & Co. v. Evans, 441 U. S. 750 (1979), did not decide the precise issue we address today, see Brief for Respondent 36, the reasoning of Oscar Mayer provides significant guidance. In Oscar Mayer, we found in the Age Discrimination in Employment Act of 1967 (ADEA) context that a complainant’s failure to file a claim within a state limitations period did not automatically render his federal claim untimely. We reasoned that the federal statute contained no express requirement of timely state filing, 441 U. S., at 759, and we declined to create such a requirement in light of the remedial purpose of the ADEA and our recognition that it is a “ ‘statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.’” Id., at 761, quoting Love v. Pullman Co., supra, at 527. In the instant case, we decide the separate question whether under Title VII, untimely filing under state law automatically precludes the application of the extended 300-day federal filing period, but the reasoning of Oscar Mayer is entirely apposite. As we noted in Oscar Mayer itself, the filing provisions of the ADEA and Title VII are “virtually in haec verba,” the former having been patterned after the latter. 441 U. S., at 755. Title VII, like the ADEA, contains no express reference to timeliness under state law. In addition, the policy considerations that militate against importing such a hurdle into the federal ADEA scheme are identical in the Title VII context: Title VII also is a remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process. The importation of state limitations periods into § 706(e) not only would confuse lay complainants, but also would embroil the EEOC in complicated issues of state law. In order for the EEOC to determine the timeliness of a charge filed with it between 180 and 300 days, it first would have to determine whether the charge had been timely filed under state law, because the answer to the latter question would establish which of the two federal limitations periods should apply. This state-law determination is not a simple matter. The EEOC first would have to determine whether a state limitations period was jurisdictional or nonjurisdictional. And if the limitations period was nonjurisdictional, like Colorado’s in this case, the EEOC would have to decide whether it was waived or equitably tolled. The EEOC has neither the time nor the expertise to make such determinations under the varying laws of the many deferral States and has accordingly construed the extended 300-day period to be available regardless of the state filing. See 52 Fed. Reg. 10224 (1987). In contrast to the difficulties presented by respondent’s argument, our broadly worded statement in Mohasco Corp. v. Silver, 447 U. S. 807 (1980), a case presenting a related issue regarding the application of the extended 300-day federal filing period, that a complainant “need only file his charge within 240 days of the alleged discriminatory employment practice in order to ensure that his federal rights will be preserved,” id,., at 814, n. 16, establishes a rule that is both easily understood by complainants and easily administered by the EEOC. We reaffirm that rule today. Because we find that the extended 300-day federal limitations period is applicable to this case and that the CCRD’s waiver of the 60-day deferral period “terminated” its proceedings within that 300-day limit, we conclude that Leers-sen’s claim was timely filed under Title VII. We therefore reverse the decision of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Justice Kennedy took no part in the consideration or decision of this case. Section 706(e) provides: “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.” 86 Stat. 106, 42 U. S. C. §2000e-5(e). Section 706(c) provides: “In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under [subsection (b)] of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority.” 86 Stat. 104, 42 U. S. C. § 2000e-5(e). This point was made by other Senators and has been emphasized by this Court in our previous Title VII eases. See, e. g., 110 Cong. Rec. 12688 (1964) (remarks of Sen. Saltonstall) (deferral provisions preserve “the opportunity and authority of the State and local governments to work out their own problems if they are willing to do so”); id., at 14313 (remarks of Sen. Miller) (deferral provisions “giv[e] the States the opportunity to carry out their responsibilities first”); Mohasco Corp. v. Silver, 447 U. S. 807, 821 (1980) (deferral provisions “give state agencies an opportunity to redress the evil at which the federal legislation was aimed, and to avoid federal intervention unless its need was demonstrated”); Oscar Mayer & Co. v. Evans, 441 U. S. 750, 755 (1979) (deferral provisions “give state agencies a limited opportunity to resolve problems of employment discrimination and thereby to make unnecessary, resort to federal relief by victims of the discrimination”); Love v. Pullman Co., 404 U. S. 522, 526 (1972) (deferral provisions “give state agencies a prior opportunity to consider discrimination complaints”). Respondent’s contrary contention that the compromise provisions represented Congress’ choice of deferral over efficiency, see Brief for Respondent 24, finds no support in the comments of Senator Dirksen, the chief architect of the compromise. His remarks make clear that he believed the compromise would promote efficiency while respecting state prerogatives. See, e. g., 110 Cong. Rec. 8193 (1964) (deferral provisions will “assure individual complainants that they will have fair and expeditious consideration of their grievances”). Reactivation of state proceedings after the conclusion of federal proceedings serves the useful function of permitting States to enforce their discrimination laws when these laws are more protective than Title VII. For example, Title VII does not give the EEOC jurisdiction to enforce the Act against employers of fewer than 15 employees or against bona fide private membersliip clubs. § 701(b), 42 U. S. C. § 2000e(b). Each year, the CCRD reactivates four to five charges in which the EEOC has determined after investigation that it lacks jurisdiction. Brief for Colorado et al. as Amici Curiae 7. All of the worksharing States, with the possible exception of Oklahoma and Tennessee, retain jurisdiction over a charge when they waive the 60-day deferral period. Brief for Petitioner 27, n. 24. Hence, none of these States “terminates” its proceedings by its waiver under respondent’s interpretation of that term. See Gilardi v. Schroeder, 833 F. 2d 1226, 1230-1231 (CA7 1987); Mennor v. Fort Hood National Bank, 829 F. 2d 553, 556 (CA5 1987); Maurya v. Peabody Coal Co., 823 F. 2d 933, 935 (CA6 1987), cert. denied, 484 U. S. 1067 (1988); EEOC v. Shamrock Optical Co., 788 F. 2d 491, 493-494 (CA8 1986); Thomas v. Florida Power & Light Co., 764 F. 2d 768, 771 (CA11 1985); Howze v. Jones & Laughlin Steel Corp. 750 F. 2d 1208, 1211 (CA3 1984). Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:

songer_typeiss

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. BAKELITE CORPORATION v. BRUNSWICK-BALKE-COLLENDER CO. (Circuit Court of Appeals, Third Circuit. March 3, 1927. Rehearing Denied May 2, 1927.) No. 3434. 1. Patents <©=>328 — 942,699, claim I, relating to making insoluble products of phenol and formaldehyde, held valid and infringed. Baekeland patent, No. 942,699, claim 1, relating to method of making insoluble products of phenol and formaldehyde, held valid, and infringed in manufacture of billiard balls. 2. Patents <©=>154 — Patentee of new process for making new product, by disclosing one method, did not disolaim all others using same ingredients and agencies. Patentee of new process of making a new product, relating to method of making an insoluable and infusible product of phenol and formaldehyde by heat and pressure, did not by disclosing one process, as required by statute, disclaim all others which used same ingredients and employed same agencies to produce identical product. 3. Patents <©=>328 — 942,809, for insoluble and infusible product of phenol and formaldehyde, held not infringed. Baekeland patent, No. 942,809, relating to method of making insoluble and infusible con, densation product of phenol and formaldehyde, held not infringed in the manufacture of billiard balls. Appeal from the District Court of the United States for the District of Delaware; Hugh M. Morris, Judge. Patent infringement suit by the Bakelite Corporation against the Brunswiek-Balke-Collender Company. ' Decree for defendant (7 F.[2d] 697), and plaintiff appeals. Reversed in part, and affirmed in part. Charles Neave, of New York City, C. P. Townsend, of Washington, D. C., and Maxwell Barus, of New York City, for appellant. William H. Davis, Frank E. Barrows, and John F. Neary, all of New York City, for appellee. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. BUFFINGTON, Circuit Judge. Th This case, a patent one, concerns a billiard ball, which defendant makes, and which plaintiff alleges infringes its patent. The ball defendant makes, and which takes the place of the commonly used ivory billiard balls, is made of phenol and formaldehyde, and prior to the plaintiff’s patent no such billiard balls were ever made or their possibility suggested. There being no such prior art, the plaintiff’s assignor, Leo H. Baekeland, on July 13, 1907, applied for and on December 7, 1909, was granted patent No. 942,699, for a “method of making insoluble products of phenol and formaldehyde.” Describing what the product of his alleged invention was, Baekeland says: “The present invention relates to the production of'hard, insoluble, and infusible condensation products of phenols and formaldehyde” — terms which aptly describe the billiard ball of defendant, which is hard, insoluble, infusible, and is made from phenol and formaldehyde, so that no question of identity of constituents, substances or of final product, is here involved. Continuing and describing his method, Baekeland proceeds: “In practicing the invention I react upon a phenolic body with formaldehyde to obtain a reaction product which is capable of transformation by heat into an insoluble and infusible body, and then convert this reaction product, either alone or compounded with a suitable filling material, into such insoluble and infusible body by the combined action of heat and pressure.” For this alleged invention he was granted, inter alia, claim 1, as follows: “The method of producing a hard, compact, insoluble, and in-fusible condensation product of phenols and formaldehyde, which consists in reacting upon a phenolic body with formaldehyde, and then converting the product into a hard, insoluble, and infusible body by the combined action of heat and pressure.” We here note that the description of the invention and the claim are both in broad, generic, and inclusive words, and prescribe three elements: First, reacting on a phenolic body with formaldehyde; second, converting that body by the combined action of heat and pressure; and, third, thereby producing a hard, insoluble, and infusible condensation product of phenols and formaldehyde. It is this claim with which we have to deal. Showing, as he was bound to do, a practical way of practicing his method, Baekeland set forth one in detail, wherein by the use of the two specified ingredients, phenol and formaldehyde, and the two specified agencies, heat and pressure, “there is obtained in fiam one to two hours or less a hard, compact, perfectly homogeneous mass similar in its properties * * * to ivory, insoluble in alcohol, acetone, and resistant to heat or infusible, and resistant to moisture and most chemical reagents as above described.” Was this patent valid? The question is not new, for this patent, inter alia, was in issue in General Bakelite Co. v. General Insulate Co. (D. C.) 276 F. 166, where an exhaustive opinion was delivered by Judge Chatfield, and, by reference thereto, we preclude a needless repetition of the work of pri- or inventors, the materials used by them, the methods they employed, and the products obtained. Summarizing his views, he thus states his conclusion: ■ “In the present case, no patent has been cited directly as an anticipation. The prior art contains few patents for synthetic phenolic condensation products, and, even though the plaintiff’s patents should be construed so broadly as to bring in doubt their validity as inventions over the prior art, still no one of the prior art patents is exactly an anticipation of the subject-matter, which evidently was the invention of the plaintiff’s assignor in the particular patent. It is unnecessary to cite the many patents from the prior art relating to the subjects of molding and hot-pressing various materials, whether to form the molded object by cooling or to cause chemical change under heat and pressure. Nor is there need of citing from the prior art the many patents in which inventors have attempted to protect particular formulas of compositions for so-called artificial or imitation ivory, ebonite, amber, and similar substances for use in the manufacture of billiard, balls, doorknobs, buttons, electrical apparatus, etc. These patents show novel physical combinations or substitutes for substances, whose use, when pressed cold or hot, was obvious, or they teach various chemical and physical aggregations' to imitate natural products or to provide varnish, insulation, or solids of elastic and other qualities. They taught nothing as to the creation of synthetic condensation products, and left the prior art with mere knowledge of melting, dissolving, solidifying, pressing, turning, boring, polishing, and cutting materials, which proved the demand for substances which were never thought of until phenolic condensation products were discovered. To guess that the new substitute material could be used as a substitute, or that similar uses were desirable, was not invention. But to find how to make the substitution successfully was invention, and so was the discovery of methods solving the difficulties encountered. * * * Baekeland claimed as invention the processes by which with certainty he produced just the result which he desired, and described this as a new method, rather than a mere combination or aggregation of materials and steps. And he also claimed as a product the commercial result, or the material which was available for commercial use, and which was obtained by just those processes and the use of just those materials which Baekeland realized would produce the steps which he desired.” This summary commends itself to us, and in support thereof we note that in all this great record there is no evidence that any one before Baekeland produced a commercial synthetic billiard ball “similar in its properties * * * to ivory,” as noted in his specification, or as made by the defendant in alleged infringement. Regarding, then, the patent valid, the next question is: Does the defendant infringe? Confessedly the defendant’s billiard ball is “a hard, compact, insoluble body,” and therefore, so far as those earmarks are concerned, it is in that respect a replica of Baekeland’s product. Such being the identity of billiard ball product, and as no such billiard ball was made prior to Baekeland’s patent, two situations arise, viz. first, if in using the same ingredients, a different process is followed, there is no infringement; or, second, if the same ingredients are subjected to the same process, there is infringement. Now there is no question but that the defendant uses the same ingredients as the plaintiff, viz. phenol and formaldehyde, and from their joint use obtains a product identical with Baekeland’s. Using, then, identity of ingredients, and obtaining identity of product, it follows there is presumable infringement, unless the defendant shows that its process, though using the same ingredients and obtaining the same product, is a process substantially different from that disclosed and claimed in the patent. Accordingly we first turn to the patent, to therefrom ascertain what was the process disclosed’and claimed by Baekeland to produce his new product. In pursuance of the statutory requirements he states his invention in the words already quoted, viz.: “The present invention relates to the production of hard, insoluble, and infusible condensation products of phenol and formaldehyde.” We note at this point that, as bearing on the alleged infringing product in this ease, and certainly that is the concrete practical subject-matter of this ease, the new thing by which. Baekeland benefited the public was a new product or output, viz. hard, insoluble, and infusible condensation products of phenol and formaldehyde,” and while he also, as we shall see, was bound to, and in fact did, show one way in which it could be made, this latter was the statutory requirement, enabling the public to use the.invention when the patent expired; but the real benefit he alone conferred on the public, so far as this case is concerned, and what the defendant makes and sells to the public, is the “hard, insoluble, and infusible condensation products of phenol and formaldehyde,” in the shape of a synthetic billiard ball, which in appearance and function resembles genuine ivory balls. We thus note this fact initially of a new product in an untilled field as the gist and substance of the patent, because, if it was a new step in synthetic chemistry production, if it defined and fenced off a field theretofore untilled, and therein produced a new and hitherto unknown product, this fact, this really remarkable contribution in one of civilization’s centuries old sports, materially affects the angle and view in which we consider the important, for disclosure and practice sakes, but all the same minor, detail of the means he suggested by which his major product could be made. And the same considerations affect the construction given the claims, whereby this major object is practically and exclusively secured to him for the limited term of his patent. So, also, while he showed, as he was bound to do, one process, assuredly the showing of this one was not a disclaimer of all others, which used the same ingredients and employed the same agencies, to produce his identical product. And in that connection we note that, in the practice he did disclose, he specified two elements or agencies, which, as we read the record, had never been theretofore used to convert phenol and formaldehyde into a “hard, insoluble, and infusible product,” which was “similar in its properties * * * to ivory, insoluble in alcohol, acetone,' and resistant to heat, or infusible and resistant to moisture and most chemical reagents as above described,” to wit, the use for that purpose of heat and pressure. Phenol was old and its general properties known; so also was formaldehyde. Their reactions on each other were old. The effect of heat upon them and the use of pressure were known, but with all this knowledge no one had ever used them so as to produce the product which Baekeland made them yield. And this productive, broad, general, and novel use of heat and pressure, resulting in a “hard, insoluble, and infusible condensation product,” is clearly disclosed in the specification, and the equally broad, generic, and nonspecific agency of conversion by heat and pressure was claimed and allowed as a conversion of phenol and formaldehyde “by the combined action of heat and pressure.” We therefore note the significant fact that this claim has no limitation as to the way heat and pressure are to be used, other than that conversion is to be made “by the combined action of heat and pressure.” Turning, then, to studying the claim quoted above, we note it contains but three elements : First, the chemical reaction of phenol with formaldehyde, or, to use the words of the claim, “reacting upon .phenolic body with formaldehyde”; second, the physical agencies, again referring to the claims, “by the combined action of heat and pressure”; third, conversion, or to again use the words of the claim, “converting the product into a hard, insoluble, and infusible body.” We also note the physical converting agency granted. by the claim is granted in broad, generic terms, viz. “by the combined action of heat and pressure” and without limitation to some specific form of heat and pressure use. It would therefore seem that, if the rights of the patentee are defined by the claim, and protection is granted him on the terms of the contract embodied in such claim, and if the claim elements are stated in such clear terms as disclose their meaning, the ease resolves itself, not into the speculative contention of opposing scientists, but into simple questions of fact. So viewing the ease, we have confronting us these simple, basic, decisive questions: First, is there in the defendant’s practice, in the words of the claim, a “reacting upon a phenolic body with formaldehyde”? Assuredly so. It brings phenol and formaldehyde into relation, and reaction takes place, and we therefore have identity of material in the patentee’s claim and the defendant’s practice. Second, does the defendant’s practice, whatever its intermediate steps, finally result, to quote the words and test of the claim, “in producing a hard, compact, insoluble, and in-fusible condensation product of phenols and formaldehyde” ? Assuredly so; its synthetic, phenol-formaldehyde billiard ball measures up to the claim test of product. We have, therefore, in addition to identity of materials, identity of product in claim, and alleged infringement. This brings us to the third question. Is the defendant’s practice one, using the words of the claim, “converting the product into a hard, insoluble, and infusible body, by the' combined action of heat and pressure”? Heat. Pressure. The meaning of the words, the functions of those commonplace agencies, are well understood; their varying effect, when used in different degrees and relations, are matters of common knowledge, and the claim directs that-these two agencies, and their several functions, and their consequent effects, are to be used jointly* and so co-operate and be so bound.together that, in the words of the claim, there is used “the combined action of heat and pressure.” The claim sets apart at one end of the line phenol and formaldehyde; at the other end it delivers the product, and midway it provides heat and pressure. With these three elements, all vital and essential, the claim stops. At what intermediate time, stage, step, or mode, either heat or pressure are to be used, is not specified in the generic and all inclusive words of the claim, viz. “the combined action of heat and pressure.” Without, therefore,' discussing the several steps of the defendant’s progressing practice, in which phenol and formaldehyde are jointly used, it suffices to say that its coarsely ground, previously dried, and partially in-fusible and insoluble product, from such treatment of these two ingredients, is, to use the description of the defendant’s process, as stated in the opinion of the court below, “put into molds and heated, under pressure of 3,-500-4,000 pounds per square inch, for 45 minutes, at a temperature of about 300 degrees F. in a performing press. Upon .the removal of the balls from the molds, they are again subjected to heat and pressure — gunning — of 3,600-4,000 pounds per square inch for 35 minutes at a temperature of 340 degrees F. in a Hyatt hydraulic gun, described in Hiatt patent No. 239,791 of 1881,” where, without doubt, further condensation takes place under heat and pressure. Convinced, as we are, that the defendant’s Use of identity of ingredients and identity of means, with those which alone are specified in the recited claim, that by such use they obtain identity of result, namely, a synthetic billiard ball, “hard, insoluble, and infusible,” a product first disclosed by this patent, we are justified in adjudging patent No. 942,699 valid and infringed. It remains for us to consider Baekeland’s other patent, No. 942,809, granted December 7, 1909, for “a condensation product and method of making the same.” Such patent was for an improvement on the process we have above discussed, and it is thus stated in his specification: “The addition in proper proportions of an organic of inorganic base to a mixture of phenol and formaldehyde, or to either component of the mixture, facilitates the reaction and yields products which are commercially far superior to those obtained by simple heating, or by the use of acids or salts as condensing agents. * * * According to my invention, the alkalies or bases are used in such relatively small proportions that their presence does not interfere with the desirable qualities of the products, rendering it unnecessary to eliminate' them by washing or neutralizing.” This small quantity of the condensing agent was fixed by the claim, viz.: “A base serving as a condensing agent, the proportion of base in the product being less than one-fifth of the equimoleeular proportion of the phenolic body used.” The defendant contends that it used as a base condensation agency in such a substantially larger proportion as left it far without the claim, and, moreover, that at a later stage it injected such a quantity of acid that it completely neutralized the alkali and thus used an acid condenser. The plaintiff contends such complete neutralization did not take place, and that defendant finally used, as a condenser, in quantity, the base stated in the claim. On this issue of fact the court below found with the defendant, and, without entering into a discussion of the proofs, we limit ourselves to saying we agree with its finding of fact and conclusion of noninfringement. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:

songer_jurisdiction

B

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer". HIRAM WALKER & SONS, INC., Plaintiff-Appellee, v. KIRK LINE, et al., Defendants, Indian River Transport, Inc., Defendant-Appellant. HIRAM WALKER & SONS, INC., Plaintiff-Appellee, v. KIRK LINE, et al., Defendants, Eller & Company, Inc., Defendant-Appellant, Indian River Transport, Inc., Defendant-Appellee. HIRAM WALKER & SONS, INC., Plaintiff-Appellee, v. KIRK LINE, R.B. Kirkconnell & Bro. Ltd., et al., Defendants, Indian River Transport, Inc., Defendant-Appellant. HIRAM WALKER & SONS, INC., Plaintiff-Appellee, Cross-Appellant, v. KIRK LINE, R.B. Kirkconnell & Bro., Ltd., Jamaica Merchant Marine Atlantic Line Ltd., Indian River Transport, Inc., SS MORANT BAY, its engines, boilers, etc., Defendants, Eller & Company, Inc., Indian River Transport, Inc., Defendants-Appellants, Cross-Appellees. Nos. 87-5048, 87-5094, 87-5111 and 88-5180. United States Court of Appeals, Eleventh Circuit. July 21, 1989. Mark A. Leibowitz, Jay M. Levy, Her-shoff & Levy, John D. Kehoe, David F. McIntosh, Corfett, Killian, Hardeman, McIntosh & Levi, Miami, Fla., for Indian River Transport, Inc. John P. D’Ambrosio, Elmsfore, N.Y., for Hiram Walker & Sons, Inc. Christian D. Keedy, Smathers & Thompson, Kelley, Drye & Warren, Craig Drake Olmstead, Miami, Fla., for Eller & Co., Inc. Before KRAVITCH and HATCHETT, Circuit Judges, and MARKEY , Chief Circuit Judge. Honorable Howard T. Markey, Chief U.S. Circuit Judge for the Federal Circuit, sitting by designation. KRAVITCH, Circuit Judge: The plaintiff Hiram Walker & Sons, Inc. (Hiram Walker), filed this action in the Southern District of New York against defendants Indian River Transport, Inc. (Indian River), Eller & Company, Inc. (Eller), R.B. Kirkconnell & Bro., Ltd. (Kirk Line), and Jamaica Merchant Marine Atlantic Line, Ltd. (Jamaica Line), seeking damages for the loss of several thousand gallons of the liqueur Tia Maria. Upon Eller’s motion, the case was subsequently transferred to the Southern District of Florida. After all parties moved for summary judgment, the district court dismissed Kirk Line and Jamaica Line from the action, and granted Hiram Walker’s motion against Eller and Indian River on the question of liability. Indian River and Eller each filed an interlocutory appeal in this court, but because of a jurisdictional problem those appeals were never decided on the merits. The district court subsequently held a bench trial to determine the amount of damages due Hiram Walker. Following the trial, the district court quantified Hiram Walker’s damages, for which it adjudged Eller and Indian River each fifty percent liable. Eller and Indian River appealed; Hiram Walker cross-appealed against those two defendants but did not appeal the district court’s dismissal of the actions against Kirk Line and Jamaica Line. We consolidated all appeals from the earlier summary-judgment order and the order following trial; we now reverse and remand. I. BACKGROUND Hiram Walker purchased five thousand gallons of Tia Maria from Estate Industries in Jamaica on March 15, 1985. On March 26, a twenty-three ton tank containing the liqueur was loaded aboard the M/V Mov-ant Bay in Kingston, apparently in good order. Kirk Line had chartered the Mov-ant Bay from its proprietor, Jamaica Line, for a shipment of cargo including Hiram Walker’s liqueur, which was shipped under a Kirk Line-Hiram Walker bill of lading. The tank arrived in Miami three days later. Kirk Line hired Eller, a stevedore, to unload the tank from the Morant Bay and store it at the dock. Hiram Walker contracted with Indian River to transport the liqueur overland to New Jersey; Hiram Walker and Indian River agreed that Indian River was to pump the liqueur from the tank into its freight trailer. On April 1, Jones, an employee of Indian River, arrived at the port to effect the pumping transfer. An Eller employee removed the tank from storage and aligned it with the trailer. Jones attempted to connect the tank and the trailer, but realized that a fitting needed to connect the hoses was missing. Even though another fitting on the back of the tank might have been used to pump the liqueur into the trailer, Jones decided that pumping the liqueur would be impossible; therefore, he asked Marshall, an Eller employee, to help him accomplish a “gravity feed” — essentially, Jones wanted to pour the liqueur from the tank to the trailer. To effect a gravity feed, the tank had to be elevated higher than the trailer. Marshall directed another Eller employee, Wright, to assist Jones. Wright lifted the tank on a large forklift; Wright, however, was not licensed to operate forklifts of this capacity. Wright and Marshall neglected to put straw mats or other dunnage between the metal forks and the metal container. Fifteen minutes into the operation, the tank apparently began to slide off the forks because of the lack of dunnage. Deciding that the tank was not properly balanced, Marshall instructed Wright to find another forklift. Wright did not lower the tank, but left the forklift holding the tank suspended eight feet off the ground for ten minutes; leaving a load suspended was a violation of standard company procedure. As Wright returned, the tank fell off the forklift. The tank ruptured, and eighty-five percent of the Tia Maria in the tank spilled out. The liqueur remaining in the tank was contaminated during the clean-up, in which several fire-engine companies covered the area with anti-explosive foam. II. BASIS OF FEDERAL JURISDICTION The claim against Indian River was pleaded as a federal question; and against Eller, in diversity. The district court analyzed the cases against Eller and Indian River under maritime tort law; because the accident in question did not occur at a maritime situs, however, admiralty jurisdiction would not support the claims against these two defendants. Harville v. Johns-Manville Products Corp., 731 F.2d 775, 782 (11th Cir.1984); Boudloche v. Conoco Oil Corp., 615 F.2d 687, 688 (5th Cir.1980). On appeal, Indian River argues that the district court lacked subject-matter jurisdiction over the claim asserted against it. We of course may consider the question of Article III subject-matter jurisdiction for the first time on appeal; additionally, an explanation of the basis of federal jurisdiction over each defendant will point out the source of law applicable to each claim. A. Federal subject-matter jurisdiction Hiram Walker urges that its claim against Indian River arises under the Car-mack Amendment, 49 U.S.C. § 11707, which provides in relevant part: A common carrier providing transportation or service subject to the jurisdiction of the Interstate Commerce Commission ... shall issue a receipt or bill of lading for property it receives for transportation under this subtitle. That carrier ... [is] liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or injury to the property caused by (1) the receiving carrier.... Failure to issue a receipt or bill of lading does not affect the liability of a carrier.... 49 U.S.C.A. § 11707(a)(1) (1988). In its complaint, Hiram Walker alleged that Indian River “totally breached, failed and violated its duties as an interstate common carrier in receiving, tending, caring for and delivering the [shipment of Tia Maria] in good condition, but on the contrary, so seriously [damaged] the same while in its possession that it was rendered a total loss.” Section 1337 of Title 28 imposes an amount-in-controversy requirement over suits brought under the Carmack Amendment; that requirement is satisfied by the allegations in the complaint. The complaint sufficiently pleaded a federal claim against Indian River. Because the Carmack Amendment would not support the claim against Eller, Hiram Walker alleged that this claim was properly within the court’s diversity jurisdiction. 28 U.S.C. § 1332. In the complaint, Hiram Walker conspicuously failed to allege that it and Indian River were of diverse citizenship. Diversity jurisdiction ordinarily is not available “when any plaintiff is a citizen of the same State as any defendant.” Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2403, 57 L.Ed.2d 274 (1978). An exception to the general rule exists, however, when the plaintiff joins a non-diverse defendant sued under federal law with a diverse defendant sued in diversity. Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 381, 79 S.Ct. 468, 485, 3 L.Ed.2d 368 (1959) (“Since the Jones Act provides an independent basis of federal jurisdiction over the non-diverse respondent, ... the rule of Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435, does not require dismissal of the claims against the diverse respondents.”); Kauth v. Hartford Ins. Co., 852 F.2d 951, 958-59 (7th Cir.1988); Baker v. J.C. Penney Co., 496 F.Supp. 922 (N.D.Ga.1980). In Baker, Judge Vining observed that an anomaly would be created by “not allowing a plaintiff to do in one federal suit what he would be entitled to do in two separate federal suits.” 496 F.Supp. at 924. Alternatively, the claim against Eller was properly within the pendent-party jurisdiction of the district court. We recently held that district courts have the power to hear the state claim against the second party if (1) the federal claim against the first party is substantial, meaning not “inescapably” frivolous, Jackson v. Stinchcomb, 635 F.2d 462, 471 (5th Cir.1981), (2) the statute conferring jurisdiction over the federal claim does not “expressly or by implication negate[ ]” the existence of pendent jurisdiction, Aldinger v. Howard, 427 U.S. 1, 18, 96 S.Ct. 2413, 2422, 49 L.Ed.2d 276 (1976), and (3) the state claim arises out of a “common nucleus of operative fact,” such that the plaintiff would be expected to try the federal and state claims together. [United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966)]. Giardiello v. Balboa Ins. Co., 837 F.2d 1566, 1570 (11th Cir.1988) (emphasis in original). Here, the federal claim is substantial and the claims against Eller and Indian River, as joint tortfeasors, arise out of a “common nucleus of operative fact.” With regard to the second prong, even though claims under the Carmack Amendment may be brought in state court, 49 U.S.C. 11707(d)(1), Congress has neither expressly nor impliedly foreclosed the possibility of pendent-party jurisdiction under the Carmack Amendment. Boudreaux v. Puckett, 611 F.2d 1028, 1031 (5th Cir.1980) (no negation of pendent-party jurisdiction under 15 U.S.C. § 1981 even though such claims may be brought in state court); compare Aldinger, 427 U.S. at 19, 96 S.Ct. at 2422 (Congress impliedly negated pendent-party jurisdiction over counties in suits predicated on 28 U.S.C. § 1343(3), which provides jurisdiction for suits brought under 42 U.S.C. § 1983, because counties were not “persons” covered by § 1983 under the then-extant construction) with Giardiello, 837 F.2d at 1571 (no negation of pendent-party jurisdiction under ERISA); First Alabama Bank v. Parsons Steel, Inc., 747 F.2d 1367, 1377 (11th Cir.1984) (no negation of pendent-party jurisdiction under Bank Holding Company Act), rev’d on other grounds, 474 U.S. 518, 106 S.Ct. 768, 88 L.Ed.2d 877 (1986); and Lykins v. Pointer Inc., 725 F.2d 645, 647 (11th Cir.1984) (no negation of pendent-party jurisdiction under 28 U.S.C. § 1346(b)). B. Source of the rule of law For Indian River, federal law governs the determination of liability and the measure of damages under the Carmack Amendment, and common-law principles give content to the federal rule. Hector Martinez & Co. v. Southern Pacific Transportation Co., 606 F.2d 106, 108 n. 1 (5th Cir.1979), cert. denied, 446 U.S. 982, 100 S.Ct. 2962, 64 L.Ed.2d 838 (1980); Dublin Co. v. Ryder Truck Lines, Inc., 417 F.2d 777, 778 (5th Cir.1969). Analysis of the source of law for the claim against Eller is a bit more complicated. This action originally was filed in the Southern District of New York, and Eller moved that court, pursuant to 28 U.S.C. § 1404(a), to transfer the case to the Southern District of Florida. The Florida federal court, therefore, must apply the rule that would have been applied by the transferor New York federal court. Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 821, 11 L.Ed.2d 945 (1964). The New York federal court would have applied the New York choice-of-law rule in determining whether to apply Florida tort law or New York tort law to this claim. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Over twenty-five years ago the New York Court of Appeals abandoned the strict lex loci delicti rule in favor of interest analysis for choice-of-law in torts cases. Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963). Interest analysis would in any event lead a New York court to apply Florida law in judging Eller’s conduct, even were Florida law inconsistent with the law in New York. See Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 480 N.E.2d 679, 491 N.Y.S.2d 90 (1985) (“when the conflicting rules involve the appropriate standards of conduct, rules of the road, for example, the law of the place of the tort ‘will usually have a predominant, if not exclusive concern’ ”); Hacohen v. Bolliger Ltd., 108 A.D.2d 357, 489 N.Y.S.2d 75 (1985) (where defendant’s standard of conduct is judged, court should look to the place of the tort in order to give effect to that jurisdiction’s interest in regulating conduct within its borders). Eller’s conduct is therefore to be measured under Florida law. III. LIABILITY OF INDIAN RIVER AND ELLER A. Indian River We review the disposition of a motion for summary judgment de novo, applying the same standards that should have been applied by the district court. Eastern Air Lines v. Air Line Pilots Assoc. Int’l, 861 F.2d 1546, 1549 (11th Cir.1988). The district court drew the following inferences from the papers the parties submitted in support of their cross-motions for summary judgment: A gravity feed, unlike a pumping transfer, required that the tank containing the liqueur be elevated to a height sufficient to allow sheer gravitational force to impel the liqueur in the tank to drain downward to the [Indian River] trailer. This operation, of course, was intrinsically and conspicuously fraught with dangers which would not have been present in a pumping transfer. It therefore seems plain that had Jones brought a cam-lock, the instrumentality needed to perform the transfer of the liqueur properly, the accident resulting in [Hiram Walker’s] tank of liqueur being dropped and spilled, would never have occurred. On the basis of these observations, the district court adjudged Indian River liable for the damage to the Tia Maria. The trial court disregarded contradictory evidence and plainly drew inferences against Indian River, the non-movant. In the procedural posture of this case, the district court’s exercise of its fact-finding powers constituted reversible error. The claim against Indian River appears to based on both a theory of tort and a theory of contract: Indian River behaved negligently in failing to bring the required fitting and then requesting a gravity transfer; alternatively, Indian River breached an express term of its contract with Hiram Walker by failing to perform a pump transfer. At least two questions are presented under a theory of tort that were not susceptible of resolution against Indian River on a motion for summary judgment. First, drawing inferences in favor of the non-movant, the district court should have concluded that it was “highly extraordinary” that Indian River’s failure to bring the proper fitting “should have brought about the harm.” Restatement (Second) of Torts § 435(2). The court may yet draw that conclusion after a full airing of the facts at trial, a conclusion that would absolve Indian River of liability for the lost liqueur. Second, Indian River has demonstrated a very substantial question whether Eller’s behavior should be considered a superseding cause of the accident, another finding that would preclude Indian River’s liability. Restatement (Second) of Torts §§ 440-453. It is beyond dispute that Eller’s conduct “actively operate[d] in producing harm to [Hiram Walker] after [Indian River’s] negligent act or omission ha[d] been committed.” Restatement (Second) of Torts § 441(1). Eller’s conduct was thus an “intervening force” causing the spill; again drawing all inferences in favor of Indian River, the court should have determined that the intervening force was a superseding cause. Among other considerations, Eller's negligence brought about “harm different in kind from that which would otherwise have resulted from [Indian River’s] negligence;” Eller’s negligence was not “a normal result” of Indian River’s negligence; the intervening force was due to Eller’s action; and “the intervening force [was] due to an act of [Eller] which [was] wrongful toward [Hiram Walker] and as such subjected] [Eller] to liability.” See Restatement (Second) of Torts § 442. Evidence before the district court established the foregoing for summary judgment purposes; the court had before it proof that gravity transfers are common and usual, and that Eller had previously performed gravity feeds for Indian River’s drivers who had arrived without the proper pumping equipment. As a matter of law, Indian River’s conduct in ordering a gravity feed cannot be characterized as negligent on the basis of the facts before the district court. The district court had before it no evidence tending to show that gravity feeds are inherently and unreasonably dangerous; to the contrary, the court was presented with evidence that dockworkers often perform gravity feeds. It may be that gravity feeds are more difficult than pump transfers, but that alone would not render one who requests a gravity feed liable for any damage that arises from a botched execution. We are presented with no substantial evidence that a competently executed gravity feed is an unreasonable solution to the problem of transferring a liquid from one tank to another; indeed, a gravity feed may under some circumstances be more efficient than pumping transfers. We cannot write a rule of law which would prevent prudent persons from requesting gravity feeds. Nor was summary judgment against Indian River proper under a theory of contract. Assuming Indian River did breach its contract with Hiram Walker, it would be liable only for those damages which it had “reason to foresee as a probable result of the breach when the contract was made.” Restatement (Second) of Contracts § 351(1); see Hadley v. Baxendale, 9 Ex. 341, 156 Eng.Rep. 145 (1854). We certainly cannot say as a matter of law that Indian River had “reason to foresee” that its failure to perform a pump transfer and its request that Eller undertake a gravity feed would result in the loss of nearly all of the Tia Maria. Whether framed as a tort or a breach of contract, summary judgment should not have been entered against Indian River on the question of liability. B. Eller We agree that the undisputed facts surrounding the loss of the Tia Maria established Eller’s negligence as a matter of Florida law. See Russ v. State, 140 Fla. 217, 191 So. 296 (1939); Seaboard Coast Line R.R. Co. v. Griffis, 381 So.2d 1063, 1065 (Fla.App.) (“Negligence is the failure to observe, for the protection of another’s interest, such care and precaution as the circumstances demand, or the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances.”), cert. denied, 376 So.2d 72 (Fla.1979); Stirling v. Sapp, 229 So.2d 850, 853 (Fla.1969) (“Where the facts are undisputed and the evidence is reasonably susceptible of but a single inference, the question of defendant’s negligence ... becomes one of law for the court.”). An Eller employee not licensed to operate the particular forklift raised the twenty-three ton tank containing Tia Maria without placing dun-nage between the tank and the blades of the forklift. When his supervisor noticed that the tank was slipping, the employee left the tank suspended above the ground for several minutes while searching for another forklift. The tank fell and ruptured; the Tia Maria was lost to the happy wharf rats. Hiram Walker satisfied its burden of producing enough undisputed evidence to make out a prima facie case for negligence under the Russ standard. The burden shifted to Eller to show that, notwithstanding these facts, its employees’ behavior was reasonable under the circumstances. Eller argues that the trial court incorrectly presumed that the Eller forklift operator should have complied with standard operating procedures and “lowered the tank when the tilt was first noticed to save the day.” Eller, who had the burden of showing that this direct inference from the undisputed facts was at least questionable, points to no proffer that calls the inference into doubt. Even assuming that the tank could not have been lowered, Eller does not proffer evidence suggesting why it should not be held negligent for allowing an unlicensed forklift operator to lift the tank without proper dunnage. Accordingly, Eller has raised only a “metaphysical doubt” as to the material facts and its claim must fail. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (when moving party has satisfied its burden, non-movant must come forward with “specific facts showing that there is a genuine issue for trial ” (quoting Fed.R.Civ.P. 56(c)) (emphasis in original)). Hiram Walker and Eller also join issue on the effect of a “Himalaya” clause in Kirk Line’s bill of lading, which provides that the “limitation of liability [in the Carriage of Goods by Sea Act (COGSA) ] shall inure ... to the benefit of any independent contractors performing services hereunder including stevedoring in connection with the goods covered hereunder.” COGSA limits liability to $500 for damage to the tank, a “customary freight unit.” E.g., Caterpillar Americas Co. v. S.S. Sea Roads, 231 F.Supp. 647 (S.D.Fla.1964), aff'd, 364 F.2d 829 (5th Cir.1966). Kirk Line hired Eller, a stevedore, to complete its delivery obligation; Eller was an independent contractor. On summary judgment, however, the trial court concluded as a matter of law that “Eller was a volunteer and acted only when [Indian River] failed to provide the necessary equipment for the pumping operation.” Accordingly, the court found that Eller was not acting within the scope of its stevedoring responsibilities to Kirk Line, and was not entitled to the limitation-of-liability provision of COG-SA. We review this determination de novo, applying the law of COGSA which the parties to the bill of lading made applicable beyond the Act’s legal scope. Assicurazioni Generali v. D’Amico, 766 F.2d 485, 488 (11th Cir.1985); Triple E Development Co. v. Floridagold Citrus Corp., 51 So.2d 435, 438 (Fla.1951) (intent of parties governs construction of contract). Although Himalaya clauses must be “strictly construed and limited to intended beneficiaries,” Robert C. Herd & Co. v. Krawill Machinery Corp., 359 U.S. 297, 305, 79 S.Ct. 766, 771, 3 L.Ed.2d 820 (1959); Certain Underwriters at Lloyds v. Barber Blue Sea Line, 675 F.2d 266, 269 (11th Cir.1982), “[w]hen a bill of lading refers to a class of persons such as ‘agents’ or ‘independent contractors' it is clear that the contract includes all those persons engaged by the carrier within the scope of the carriage contract.” Id. at 270. Kirk Line was responsible under the bill of lading for delivering the Tia Maria to Hiram Walker’s agent Indian River; Eller would be an intended beneficiary of the Himalaya clause as long as Kirk Line had not completely discharged its responsibility by the time of the spill. Assicurazioni Generali, 766 F.2d at 489. The question thus presented is whether Kirk Line’s duty was fulfilled when Eller aligned the tank with Indian River’s truck; if so, Kirk Line had completed its responsibilities under the bill of lading before the spill occurred, and Eller could not be said to have been an “independent contractor performing services” under the bill of lading at the time of the accident. If, however, because of Indian River’s failure to secure the proper fitting, delivery was not completed by the mere alignment of the tank with the trailer, then Kirk Line’s duty of delivery would have continued and Eller would have been “an independent contractor performing services” under the bill of lading at the time of the spill, entitled to the $500 limitation. Hiram Walker proffered the following evidence on this narrow question. First, it offered the deposition testimony of Eller’s director of safety, in which he stated that Eller employees had performed the gravity transfer for the convenience of Indian River and agreed that “doing the gravity transfer bit was over and above the normal expected activities of Eller in transferring products.” Second, this witness testified that during a pumping transfer, Eller had the duty to align the tank and the trailer, but Indian River had the duty to effect the transfer. (Another deposition witness, El-ler’s employee Marshall, confirmed that Indian River bore responsibility for the mechanics of a pump transfer once Eller aligned the tank and the trailer.) Finally, Hiram Walker offered the affidavit of its traffic manager, who stated that “[i]t was HIRAM WALKER’S understanding with INDIAN RIVER that it was the latter’s sole responsibility to transfer the bulk products from the ocean tanks to its tankers. It was not part of HIRAM WALKER’S agreement with KIRK LINE that KIRK LINE would bear that responsibility.” Eller for its part proffered the affidavit of its local Miami manager, who stated that Eller’s responsibility as an independent contractor for Kirk Line was to “physically move the cargo from ELLER’s lot and deliver the cargo to the consignee by transferring physical possession of the cargo to the consignee.” Of course, Eller’s local manager is probably in a better position than its safety director to know the stevedore’s responsibilities. Neither party’s proffer demonstrates as a matter of law or undisputed fact at what point discharge of Kirk Line’s responsibility under the bill of lading occurred. The affidavit of Hiram Walker’s safety manager is the only direct evidence that the agreement between Hiram Walker and Kirk Line did not contemplate Kirk Line having any responsibility for the actual transfer of the Tia Maria, but this evidence has substantial weaknesses: it is a conclu-sory statement of an interested party and makes no reference to the actual written agreement between Kirk Line and Hiram Walker; further, it may be predicated upon the incorrect assumption that only a pump transfer would occur. Inferences from the statements of Eller’s director of safety and its Miami manager lead in opposite directions; a reasonable inference from the statement proffered by Hiram Walker is that Eller — and therefore presumably Kirk Line — had no responsibility for the actual transfer of the liquid cargo whether the transfer was effected by a gravity feed or by pumping. On the other hand, one could reasonably infer from the statement proffered by Eller that the stevedore — and thus presumably Kirk Line — remained responsible under the bill of lading until the last of the liquid cargo was transferred to the care of Hiram Walker’s agent Indian River. Moreover, there are good reasons why a consignee such as Indian River may be responsible for a pumping transfer but not a gravity feed: the pump itself is apparently attached to the consignee’s trailer, but as gravity feeds require the use of a forklift, a stevedore may have primary responsibility for that kind of operation. When a pumping transfer is effected, delivery may occur when the tank and the trailer are aligned — but it does not necessarily follow that delivery in the case of a gravity feed can finally occur before the last of the liquid is drained into the trailer; the scope of Kirk Line’s duty under the bill of lading may thus depend upon the type of transfer that actually is performed. The district court should determine after trial whether Kirk Line’s obligations had completely terminated by the time of the spill, but its conclusion on summary judgment was in error. REVERSED and REMANDED. . Aetna, Hiram Walker’s insuror, paid the entire loss and thus Hiram Walker no longer has an interest in the case. Under the normal rules of subrogation, Aetna was the real party in interest and should have sued in its own name. Frank Briscoe Co. v. Georgia Sprinkler Co., 713 F.2d 1500, 1502 n. 1 (11th Cir.1983). The district court stated that Aetna should have filed an appearance, but held that the defect did not warrant dismissal of the claim because counsel for plaintiff advised on the record that he was bringing the claim for the use and benefit of Aetna. This was a bench trial, the fact finder knew that Aetna was the real party in interest, and no defendant has shown any prejudice. The district court did not abuse its discretion by constructively joining Aetna as a party plaintiff and refusing to dismiss the claim. . See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (in banc). The Eleventh Circuit adopted as binding precedent all decisions rendered by the former Fifth Circuit prior to October 1, 1981. . Venue may have been incorrect in the New York district court. See 49 U.S.C. § 11707(d)(2)(A)(iii). No party raised this objection, however, and the error was probably cured by the subsequent transfer to the Southern District of Florida. . Hiram Walker argues that because this case was to be tried without a jury, we should apply the clearly erroneous test of Rule 52 to the findings made by the district judge on summary judgment. Cf. Nunez v. Superior Oil Co., 572 F.2d 1119, 1123-25 & n. 6 (5th Cir.1978) (“If decision is to be reached by the court, and there are no issues of witness credibility, the court may conclude on the basis of the affidavits, depositions, and stipulations before it, that there are no genuine issues of material fact, even though decision may depend on inferences to be drawn from what has been incontrovertibly proved.’’) Assuming that the pleadings incontrovertibly proved all material facts such that only inferences remained to be drawn, we would be left with a definite and firm conviction that the district court erred in holding Indian River liable. Moreover, the trial judge may have incorrectly assumed that no facts were in dispute, for the judge noted that "all the parties to this action have moved for summary judgment, thereby clearly indicating their accord that no genuine issue of fact remains to be resolved.” This is not a correct statement of the law; a movant may be correct in stating that the facts relevant to his theory of the case are not in dispute, yet contest the relevant issues of fact under his opponent’s theory. Walling v. Richmond Screw Anchor Co., 154 F.2d 780, 784 (2d Cir.), cert. denied, 328 U.S. 870, 66 S.Ct. 1383, 90 L.Ed. 1640 (1946). For this reason we think it prudent not to accord a presumption of correctness to the district judge’s fact-finding. . It is irrelevant that Hiram Walker may have agreed to waive a substantial portion of Eller’s liability; Eller's conduct nonetheless subjected it to liability to Hiram Walker. . Hiram Walker quotes three Restatement (Second) of Torts provisions, arguing that they prove that Indian River’s negligence in failing to bring the correct fitting was not superseded by Eller’s negligence. None of these sections indicates as a matter of law that Eller’s conduct is not a superseding cause: (1) Where the negligent conduct of the actor creates or increases the foreseeable risk of harm through the intervention of another force, and is a substantial factor in causing the harm, such intervention is not a superseding cause. Restatement (Second) of Torts § 442A. Although failing to bring the proper fitting may have increased the risk that the tank would fall (because that danger inheres in a gravity transfer), Indian River’s failure to bring the proper fitting was not indisputably a substantial factor causing the tank to fall. (2) Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability.... Restatement (Second) of Torts § 442B. Again, Indian River's failure to bring the proper fitting was not necessarily a substantial factor causing the tank to fall. (3)The intervention of a force which is a normal consequence of a situation created by the actor’s negligent conduct is not a superseding cause of harm which such conduct has been a substantial factor in bringing about. Restatement (Second) of Torts § 443. Negligent execution of a gravity feed is by no means a "normal consequence” of attempting a gravity feed. .The colloquy between counsel for Indian River and the safety director for Eller, proffered by Hiram Walker in an attempt to show that gravity feeds are inherently and unreasonably dangerous, merely suggests that gravity feeds are more difficult than pumping transfers. . There is some confusion in the briefs concerning Indian River’s liability for Eller’s conduct. We do not read the district court’s order on summary judgment to impose liability on Indian River under a theory of agency; the court held Indian River liable for its own acts and omissions. . So named after the vessel in an English case. See the exegesis in Brown & Root, Inc. v. M/V Peisander, 648 F.2d 415, 417 n. 5 (5th Cir.1981). . Indian River argues that delivery had already been completed under clause 12 of the bill of lading, which provides that delivery is complete when goods are taken "into the custody of customs or other authorities." Acknowledging that no record evidence suggests that "customs or other authorities” took possession of the liqueur, Indian River argues that "it is a more than reasonable inference that inspection had occurred within the meaning of the bill of lading prior to" Indian River’s arrival. Indian River cannot base its case on a provable fact it never attempted to establish below. . Because we have reversed the district court's determination of liability as to both Indian River and Eller, we need not address the parties’ arguments about the quantification of damages and the district court’s decision not to award pre-judgment interest. When considering the question of pre-judgment interest on remand, as to the claim against Eller, the district court is free to consider the effect of Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215 (Fla.1985) (pre-judgment interest under Florida law — as Florida law supplies the rule for the liability claim against Eller, New York choice-of-law principles mandate that Florida law also supply the rule of decision for Hiram Walker’s claim for pre-judgment interest, see Entron, Inc. v. Affiliated FM Ins. Co., 749 F.2d 127, 131 (2d Cir.1984)). As to the pre-judgment interest claim against Indian River, the district court should consider the applicability of the reasoning in George R. Hall, Inc. v. Superior Trucking Co., 532 F.Supp. 985, 996-98 (N.D.Ga.1982) (prejudgment interest under the Carmack Amendment). Question: Did the court determine that it had jurisdiction to hear this case? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

sc_casedisposition

D

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. TILTON et al. v. MISSOURI PACIFIC RAILROAD CO. No. 49. Argued January 7, 1964. Decided February 17, 1964. Philip B. Heymann argued the cause for petitioners. On the brief were Solicitor General Cox, Assistant Attorney General Douglas, Alan S. Rosenthal and Richard S. Salzman. Robert W. Yost argued the cause and filed a brief for respondent. George S. Parish filed a brief for the Veterans of Foreign Wars National Rehabilitation Service, as amicus curiae, urging reversal. Clarence M. Mulholland, Edward J. Hickey, Jr. and Richard R. Lyman filed a brief for the Railway Employes’ Department, AFL-CIO, as amicus curiae, urging affirmance. Mr. Justice Goldberg delivered the opinion of the Court. Since 1940 Congress, as an integral part of selective service legislation, has protected the reemployment rights of veterans. The principle underlying this legislation is that he who is “called to the colors [is] not to be penalized on his return by reason of his absence from his civilian job.” Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275, 284. Petitioners, reemployed veterans, sued respondent railroad, their employer, in the District Court for the Eastern District of Missouri. They claimed that they have been deprived of seniority rights to which they are entitled under the Universal Military Training and Service Act and the applicable collective bargaining agreement. The District Court held that petitioners were not entitled to the relief they sought. The Court of Appeals for the Eighth Circuit affirmed. 306 F. 2d 870. We granted certiorari, 372 U. S. 905, because of the importance of the question in administering the statute protecting veterans’ reemployment rights. For the reasons stated below, we reverse the judgments of the Court of Appeals. The facts are not in dispute. Petitioners were initially employed by respondent railroad as carmen helpers. At the time of their original employment and since, the railroad has suffered from a shortage of qualified journeymen carmen mechanics. The collective bargaining agreement between the union representing the carmen, the Brotherhood Railway Carmen of America, and the railroad has provided methods for alleviating this shortage. Whenever the railroad is unable to employ persons presently qualified as carmen mechanics, the agreement provides for the advancement or “upgrading” of carmen helpers to provisional carman status. Representatives of the railroad and the union jointly select the helpers to be so advanced. A helper thus “upgraded” can then be employed by the railroad to perform the work of a journeyman carman mechanic and is entitled to be paid a carman mechanic’s wage. Under the labor agreement, however, the “upgraded” helper does not immediately acquire permanent seniority as a journeyman. He retains his seniority as a helper until completing 1,040 days of actual work as a carman mechanic. At the end of that time the upgraded helper is considered a “qualified carman.” He may then acquire a seniority date as a journeyman by making an election to that effect in writing. Petitioners were upgraded from carmen helpers in accordance with the terms of the agreement. They were subsequently inducted into military service. At the time of his induction, Tilton had worked 145 days as a carman, Beck 851 days, and McClearn 21 days. Upon his honorable discharge from military service, each petitioner promptly returned to employment at the railroad, was reemployed as an upgraded carman, and thereafter satisfactorily completed the remainder of the 1,040-day work period necessary to qualify for journeyman status. Each, thereupon, immediately elected to acquire seniority as a journeyman carman mechanic. In each case, the railroad established petitioners’ seniority as journeymen as of the date each actually completed the 1,040-day work period. As a result, petitioners had journeyman seniority junior to that of some carmen who had been upgraded to provisional carman status after petitioners were so advanced but who — because they were not absent in military service — were able to complete the 1,040-day service requirement before petitioners. These nonveterans are now ahead of petitioners on the journeymen carmen’s seniority roster and enjoy the advantages which seniority dictates, such as work preference and order of layoff and recall. Petitioners contend that under this arrangement their absence in military service improperly affected their seniority because non veteran employees who were junior on the temporary upgraded list are now senior on the permanent carmen’s list. Petitioners’ claim rests upon §§9 (c)(1) and 9 (c)(2) of the Universal Military Training and Service Act. In §9 (c)(1) Congress directed that veterans returning from military service be restored to their civilian employment “without loss of seniority.” This provision was first enacted as part of the National Guard Act, Joint Resolution of August 27, 1940, c. 689, 54 Stat. 858. The Chairman of the House Military Affairs Committee in reporting the conference and final version of the bill explained that one of the purposes of the reemployment provisions was to ensure restoration of the veteran to his “seniority status.” 86 Cong. Rec. 10761. The reemployment provisions, including what is now §9 (c)(1), were carried over into the Selective Service Bill, 86 Cong. Rec. 10922-10923, and became § 8 of the Selective Training and Service Act of 1940, 54 Stat. 885, 890, as amended, 50 U. S. C. App. (1946 ed.) § 308. In Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275, the Court first considered and specifically interpreted the language in § 8 (c) of the 1940 Act dealing with restoration to veterans of their civilian employment “without loss of seniority.” The Court said: “Congress recognized in the Act the existence of seniority systems and seniority rights. It sought to preserve the veteran’s rights under those systems and to protect him against loss under them by reason of his absence.” Id., at 288. The Court observed: “Thus he does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war.” Id., at 284-285. This “escalator principle” was reaffirmed by the Court in Trailmobile Co. v. Whirls, 331 U. S. 40, and restated in Oakley v. Louisville & Nashville R. Co., 338 U. S. 278, 283: “[A]n honorably discharged veteran, covered by the statute, [is] entitled by the Act to be restored not to a position which would be the precise equivalent of that which he had left when he joined the Armed Forces, but rather to a position which, on the moving escalator of terms and conditions affecting that particular employment, would be comparable to the position which he would have held if he had remained continuously in his civilian employment.” Following these decisions Congress, in 1948, expressly approved the “escalator principle” and continuous employment standard applied by the Court by adopting § 9 (c)(2) of the present Act which provides: “It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) of this section should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.” 62 Stat. 604, 615-616, as amended, 50 U. S. C. App. § 459 (c)(2). Section 9 (c)(2), in effect, confirms the Court’s interpretation of the meaning of § 8 (c) of the 1940 Act which is identical with §9(c)(l) of the present Act. McKinney v. Missouri-Kansas-Texas R. Co., 357 U. S. 265, 271. It was in light of this background that the Court decided Diehl v. Lehigh Valley R. Co., 348 U. S. 960, which petitioners contend, and which we agree, controls the present case. Diehl involved facts and issues virtually identical with those now before us. Diehl, like petitioners, was a railroad carman helper temporarily “upgraded” to carman status. He was inducted into military service while holding this upgraded position and, upon his return was restored to it. The collective bargaining agreement between the railroad and the union provided that upgraded carmen who had completed 1,160 days of work in that capacity could elect journeymen car-man status. Upgraded men junior to Diehl had completed the requisite work period while he was in service and had been given seniority ahead of Diehl. Upon completion of the training period, Diehl protested claiming, as petitioners do here, that under §§ 9 (c)(1) and 9 (c)(2) of the Act, he was entitled to seniority as of the earlier date on which he would have completed the work period but for his absence in military service. The United States Court of Appeals for the Third Circuit decided against the veteran, on the ground that the Act protects only rights which are a mere function of time in grade and does not entitle the veteran to be treated as if he had been actively employed or trained during the period of military service. This Court reversed, per curiam, holding that “[u]pon the facts disclosed in the opinion of the Court of Appeals for the Third Circuit, 211 F. 2d 95, the applicable Acts of Congress, and the opinion of this Court in Oakley v. Louisville & Nashville R. Co., 338 U. S. 278, the judgment of the Court of Appeals is reversed.” Diehl v. Lehigh Valley R. Co., 348 U. S. 960. Although it would be difficult to conceive of a more applicable and controlling precedent, the court below attempted to distinguish Diehl on the ground that there it had been stipulated that the claimant “would have completed” the work period on a given date if there had been no military service interruption. 306 F. 2d, at 877. “These stipulated words,” the court said, “imply that the work completion was not dependent upon prior resolution of any contingency or uncertainty.” Ibid. This case, unlike Diehl the court declared, “lacks the essentials of the automatic in the entire system of promotion from carman helper to full-fledged carman.” Ibid. This distinction, in our view, is untenable. There is no room for doubt in this case that “on the moving escalator of terms and conditions affecting [this] particular employment,” Oakley v. Louisville & Nashville R. Co. 338 U. S. 278, 283, had petitioners remained continuously on the job during the period of their military service, they would have completed the work period and qualified as journeymen in advance of those who passed them in seniority during their absence. Each petitioner was entitled, under the labor agreement, to do carman’s work ahead of any upgraded after him. It was only because of petitioners’ military service that men upgraded after them were able to work more days as provisional car-men and to qualify as journeymen before them. But for their absence, petitioners would have qualified as journeymen carmen and achieved the seniority dates they now claim. This was confirmed by the testimony of the railroad’s Chief Personnel Officer, Mr. Smith, who in effect conceded that the railroad under the collective bargaining agreement had no discretion to refuse journeyman’s status to a helper who had successfully completed the work period: “Q. Now, you have testified that these men, when they completed their three years or thousand and forty days of work, did not automatically acquire carman seniority. As soon as they made an election, the railroad had no choice but to give them the seniority, did it? “A. [Mr. Smith] That’s right. “Q. In other words, as soon as they completed the work requirement, made the election as of that time, they became carmen and drew a seniority date? “A. [Mr. Smith] Correct.” It is evident, therefore, that promotion upon completion of the training period was as automatic here as in Diehl. The Court of Appeals, alternatively, refused to follow Diehl on the assumption that it was overruled sub silentio by the subsequent decision of this Court in McKinney v. Missouri-Kansas-Texas R. Co., 357 U. S. 265. The court below interpreted McKinney to hold that for a veteran to be entitled to an advancement in status, “the promotion in question [must] be automatic and . . . seemingly . . . automatic as a matter of foresight rather than of hindsight.” 306 F. 2d, at 876. The court concluded that advancement to journeyman car-man status in the instant cases did not meet that standard because it was subject to certain contingencies or “variables”: lay-offs due to illness or reduction in force; the continuing unavailability of enough qualified carmen to fill carmen’s positions; continuing satisfactory work by petitioners in the upgraded position; and petitioners’ decisions as to whether or not to elect full carman status. 306 F. 2d, at 877. Accordingly, the Court of Appeals held the eventual acquisition by petitioners of journeyman carman status could not have been foreseen with absolute certainty at the time they entered military service and that, under McKinney, they were therefore not entitled to seniority status as of the date they would probably have achieved it but for their military service. In this reading of McKinney, the Court of Appeals erred. McKinney was not intended to and did not overrule Diehl. Nor did McKinney establish a requirement of absolute foreseeability. That case did not involve the Diehl-type situation where advancement depends essentially upon continuing employment. It turned upon the fact that the collective bargaining agreement there in issue made the exercise of management discretion a prerequisite to promotion. The Court concluded, therefore, that the advancement was not basically dependent upon continued employment. This is clear from the Court’s statement that: “Promotion to a group 1 position from group 2, in which petitioner had formerly been employed, is not dependent simply on seniority. Under Rule 1 (3) (A) of the collective bargaining agreement it is dependent on fitness and ability and the exercise of a discriminating managerial choice. . . . The statute does not envisage overriding an employer’s discretionary choice by any such mandatory promotion.” 357 U. S., at 272. Furthermore, the Court’s mandate in McKinney supports the view that the Court did not adopt a rule of absolute foreseeability. In remanding the case, the Court granted McKinney leave to amend his complaint to allege, if such was the fact, that in practice under the collective bargaining agreement “advancement from group 2 to group 1 is automatic.” 357 U. S., at 274. If the Court had intended to adopt a rule of absolute foreseeability of automatic advancement, it would not have permitted McKinney to amend his complaint. It was apparent that McKinney, when he left for service, could not have predicted with absolute certainty that a group 1 position would fall vacant in his absence; that he would be in adequate health to bid for it; that he would elect to bid for it; and that he would not have lost his lower position because of unsatisfactory performance. Properly read, therefore, McKinney holds that where advancement depends on an employer’s discretionary choice not exercised prior to entry into service, a returning veteran cannot show within the reasonable certainty required by the Act that he would have enjoyed advancement simply by virtue of continuing employment during the time he was in military service. It would be virtually impossible for a veteran to show, as the Court of Appeals would require, that it was absolutely certain, “as a matter of foresight” when he entered military service, that all circumstances essential to obtaining an advancement in' status would later occur. To exact such certainty as a condition for insuring a veteran’s seniority rights would render these statutorily protected rights without real meaning. As Benjamin Franklin observed, “In this world nothing is certain but déath and taxes.” In every veteran seniority case the possibility exists that work of the particular type might not have been available; that the veteran would not have worked satisfactorily during the period of his absence; that he might not have elected to accept the higher position; or that sickness might have prevented him from continuing his employment. In light of the purpose and history of this statute, however, we cannot assume that Congress intended possibilities of this sort to defeat the veteran’s seniority rights. “This legislation,” the Court said in Fishgold v. Sullivan Dry dock & Repair Corp., supra, at 285, “is to be liberally construed for the benefit of those who left private life to serve their country . . . .” So construed, we conclude that Congress intended a reemployed veteran, who, upon returning from military service, satisfactorily completes his interrupted training, to enjoy the seniority status which he would have acquired by virtue of continued employment but for his absence in military service. This requirement is met if, as a matter of foresight, it was reasonably certain that advancement would have occurred, and if, as a matter of hindsight, it did in fact occur. This does not mean that under §§ 9 (c) (1) and 9 (c) (2) the veteran, upon returning from service, must be considered for promotion or seniority purposes as if he had continued to work on the job. A returning veteran cannot claim a promotion that depends solely upon satisfactory completion of a prerequisite period of employment training unless he first works that period. But upon satisfactorily completing that period, as petitioners did here, he can insist upon a seniority date reflecting the delay caused by military service. Any lesser protection, would deny him the benefit of the salutary provisions of §§ 9 (c)(1) and 9 (c) (2) of the Universal Military Training and Service Act. The judgments of the Court of Appeals are reversed and the cause remanded for proceedings in conformity with this opinion. Reversed and remanded. Section 9 of the Universal Military Training and Service Act, 62 Stat. 614, as amended, 50 U. S. C. App. § 459, provides in relevant part as follows: “(b) In the case of any such person who, in order to perform such training and service, has left or leaves a position (other than a temporary position) in the employ of any employer and who (1) receives such certificate, and (2) makes application for reemployment within ninety days after he is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year— “(B) if such position was in the employ of a private employer, such person shall— “(i) if still qualified to perform the duties of such position, be restored by such employer or his successor in interest to such position or to a position of like seniority, status, and pay; or “ (ii) if not qualified to perform the duties of such position by reason of disability sustained during such service but qualified to perform the duties of any other position in the employ of such employer or his successor in interest, be restored by such employer or his successor in interest to such other position the duties of which he is qualified to perform as will provide him like seniority, status, and pay, or the nearest approximation thereof consistent with the circumstances in his case, “unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so; “(c)(1) Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) of this section shall be considered as having been on furlough or leave of absence during his period of training and service in the armed forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration. “ (2) It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) of this section should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.” Petitioners were represented by the United States Attorney, pursuant to the provisions of 50 U. S. C. App. § 459 (d). The Railway Employes’ Department, AFL-CIO, has filed in this Court a brief amicus curiae opposing petitioners’ claims. The opinion of the District Court is not reported. The agreement provides in pertinent part: “A helper who has been or who is later advanced to carman will retain seniority as helper. When he has completed a total of 1040 days of service as carman he shall be considered as a qualified carman. At the completion of the 1040 days of service he will make his choice in writing to acquire a seniority date as carman as of the ending date of the 1040 days of service as such and relinquish his seniority as helper. If he fails to do so he will return to status of helper and will not again be considered in the selection of men for advancement under this agreement. He may, however, at a later date be employed as a carman and acquire a seniority date as carman as of the date so employed but will automatically lose seniority as a helper.” The present § 9 (c) (1) is a reenactment of § 9 (c) (1) of the Selective Service Act of 1948, 62 Stat. 604, 614, as amended, 50 U. S. C. App. § 459, which had reenacted § 8 (c) of the Selective Training and Service Act of 1940. It is not absolutely clear that' there was such a stipulation in Diehl. The Court of Appeals in Tilton said: “The parties in their briefs here both refer to a stipulation in Diehl. We find no clear reference to a stipulation in the opinions of either the Third Circuit or the district court. Inasmuch, however, as the plaintiffs’ present counsel argued the Diehl case in the Supreme Court, we assume the existence of the stipulation.” 306 F. 2d, at 877, n. 8. These contingencies were present in Diehl but did not bar relief. The only discretion in the present case was that vested in the railroad and union to select from among the carmen helpers those to be upgraded. This discretion had been exercised in petitioners’ favor prior to their entry into military service. Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:

songer_r_natpr

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. SOUTHERN PAC. CO. v. GUTHRIE. No. 12164. United States Court of Appeals Ninth Circuit. Dec. 30, 1949. Rehearing Granted Feb. 15, 1950. Arthur B. Dunne, Dunne & Dunne, San Francisco, Cal., for appellant. Thomas C. Ryan, Daniel V. Ryan, Ryan & Ryan, San Francisco, Cal., for appellee. Before BONE and POPE, Circuit Judges, and BLACK, District Judge. POPE, Circuit Judge. Southern Pacific Company has appealed from a judgment recovered against it by Garry T. Guthrie in an action brought under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. The contentions most strenuously urged by appellant are (1) that there was no evidence of negligence on its part, and (2) that the damages recovered are excessive. The company also specifies as error the refusal of the court to give numerous requested instructions, and the admission of evidence to which we shall call attention hereafter. Guthrie was a locomotive engineer employed by the Southern Pacific Company, tie had completed a run from Yuma to Gila Bend, Arizona, on the morning of October 27, 1947. Later the same day he received orders to “deadhead” to Yuma, to the west. This meant he could travel by freight, or passenger train, or both. Pursuant to these orders he took a freight train to Sentinel, Arizona, which was part way, and at that point decided to change to a passenger train, which was due to arrive shortly, in order to shorten the time required for his trip. Accordingly he waited at Sentinel for the arrival of passenger train No. 5, westbound for Los Angeles. The train reached the Sentinel yards about 9:30 P.M. and was obliged to pass through the yards on the north side passing track or siding on account of a broken rail on the main line track. This necessitated the train coming back on the main line at a switch on the west end of the siding. The switch stand, by which this switch was operated, was north of the main line. On the other side was the station platform, where Guthrie had been waiting. When the train moved slowly through the passing track, he set his grip down on the platform and crossed over the track to the switch stand in order to throw or line the switch so that the train could come out on the main line. It was customary for engineers and other trainmen, when traveling as he was, to furnish such assistance to the train crew, and there is no question but that Guthrie was then in the course of his employment and then engaged in interstate commerce. As he moved over to the switch stand Guthrie was standing in the full beam of the locomotive’s headlight. The train was moving very slowly. The fireman had climbed down on the right hand, or engineer’s side of the engine, intending to throw the switch himself, and had gone ahead for that purpose, but when he saw Guthrie, dressed as an engineer, unlock and line the switch, and give the customary signal to proceed, he waited for the engine to come along and then climbed back on the engine. After Guthrie had thus signaled to come ahead, he started to cross the track to the south, back toward where he had left his grip. When he took the first step, with his right foot, between the rails, his foot or shoe caught in the space between the tie bar and head block or switch tie, and he could not pull it out. He shouted, but could not be heard above the engine noise and he could not be seen from either window of the locomotive cab because of the width of the engine. As the locomotive continued toward him he threw himself backward over the rail, so that he saved his left leg and body, but his right leg was run over and cut off at a point between the knee and the hip. The appellant urges that there is no evidence of negligence on the part of the company. Under the court’s charge there were submitted to the jury two claims of negligence, one that there was negligence ‘¿in connection with the maintenance of the area in and about and connected with the switch”, and one that there was negligence “on the part of the fellow employees in the operation of the railroad engine”. Appellant says that there was negligence in neither respect, and further, that if either of these claims must fall for want of evidence, the judgment must be reversed for the reasons stated in Wilmington Star Mining Co. v. Fulton, 205 U.S. 60, 27 S.Ct. 412, 51 L.Ed. 708, because, under the general verdict, it cannot be known upon what ground the jury went. Guthrie gave several reasons why he crossed the track after lining the switch. He had left his grip on the side opposite the switch stand and he had to go to that side to board the train which opened up for passengers on that side. Two company rules were mentioned. One provided: “While the train is moving over a switch any employee in the vicinity of such switch must take position on the opposite side of the track from switch when practicable, and when not practicable to do so must take position 20 feet from switch stand”. The other rule was cited by Guthrie as his reason for crossing at that particular place. He said he did so in order- to- inspect the points of the switch. The switch points are the moveable portions of the rails, tapered at the ends, which are moved back and forth as the switch is operated. This rule provided that: “When a switch is thrown, the employee setting it must see that both points have moved to the proper position”. When Guthrie stepped between the rails his right foot was caught between the tie which, is referred to as the switch tie, or head block, and the No. 1 tie rod. The switch tie is the tie which is extended beyond the other ties to furnish support for the switch stand. The tie rod connects the two switch points, so that when the switch is thrown, both rails move together. Fastened to the inside of the switch points on either side are metal transit clips, in which five bolt holes are set on an angle, and as the connecting tie rod is fastened by bolts in these holes, the correct distance between the two switch points can be maintained by moving the bolts from hole to hole. At the time of the accident the tie rod was bolted to the middle hole of the north clip and the second hole from the east on the south clip. Partly in consequence of this, the space between the switch tie and the tie rod tapered from a two inch space on the north to a four inch space on the south. Guthrie stepped into this space between switch tie and tie rod. He said that as he did so his foot went into a hole. The track was ballasted with slag, but Guthrie testified that át the point where he stepped, the ballast, instead of being in place up to within four inches of the top of the ties, was down to a depth of 7, 8 or 9 inches, sloping down toward the north, so that as he stepped his foot slipped back under the narrower portion of the space bétween switch tie and tie rod, and his foot became wedged in this space. He was thrown, and fell on his left side. He got up, but could not pull his foot out. He thought his leg was broken. Another witness who later picked up the severed leg thought it was broken at the ankle. Other witnesses who examined the location a few days after the accident and while conditions at the switch remained the same, testified as to the depth of the ballast beneath the tie rod where Guthrie caught his foot. One of them said that he measured a distance of nine inches from the bottom of the tie rod to the top of the ballast at the north side of the track and that the measurement was seven inches below the tie rod at the other side of the track. Another witness testified that about the same time he examined the location and found that the top of the ballast between the two ties and inside of the two rails was nine inches below the top of the ties. According to his testimony the ballast at this point was actually slightly lower than the bottom of the ties. He described it as “saucer shaped” and .said that the appearance was as if some of the ballast had been taken out. Not only did the company produce evidence of measurements made tending to controvert Guthrie’s claim that he stepped into a hole, but it attacks the claim of the existence of a hole at this point as not entitled to any credit whatever for two reasons. It says that if the ballast were actually below the bottom of the two ties, the movement and weight of the trains operating there would have moved the two ties together for want of ballast between them. It is asserted that the photographs of the locality taken shortly after the incident showed that the ballast was in a normal position and that there was no -hole in which Guthrie could have stepped. With respect to the claim that the ties would have shifted, plaintiff’s counsel argue that there is no claim that there was no ballast between the ties and that there is nothing to show that the ballast between the ends of the ties outside of the rails would not have been sufficient to hold the ties in place. An examination of the original photographs which are part of the record in this court does not furnish any satisfactory answer to the controversy. Obviously, the taking of a photograph of space between ties in such manner as to show depth, is an exceedingly difficult undertaking in the absence of some stereoscopic device. Exhibits 7, L and J, which are photographs, seem to indicate some extra depth in ballast - at this point, while in exhibits I, K, H, and F, also photographs, taken at. the same time, the depth seems less. The evidence does show that in ordinary railroading practice it is standard procedure to have the ballast beneath this moving portion of a switch slightly lower than the ballast elsewhere along the track. Some allowance must be made for the movement of the tie rods. It was testified on behalf of the defendant that the top of the ballast was 4% inches lower than the top of the ties. Viewing the evidence in the light most favorable to Guthrie, we believe that the jury would be warranted in believing that there was sufficient credible evidence to support a claim that when Guthrie stepped between the rails his foot was placed at a point where it was able to slide backward toward the north side of the track into a hole. An inspection of some of the photographs would tend to indicate the existence of a hole of some depth at this point. It is reasonable to believe that if a hole was near the north rail his movement toward the south would make the thrust of his foot toward the north, where he said the hole sloped off, and wedge his ankle into the narrow portion of the space between the swdtch tie and the tie rod. If he then, in this predicament, fell toward the left, his foot being held against the tie, the tie rod might well supply enough leverage to break his leg. With respect to the claim of negligence in the operation of the engine, the evidence showed that the locomotive was moving very slowly when Guthrie moved over to throw the switch. Guthrie’s testimony was that it was moving so slowly that he could not be sure that it was moving at all. The fireman estimated the speed to be three or four miles an hour, slow enough so that when he got down on the ground he could “get ahead of the engine by either walking or trotting slowly”. The fireman had made a few steps toward the switch after getting down on the engineer’s side when he saw Guthrie at the switch and that he had correctly lined the switch for the locomotive to proceed. The fireman saw Guthrie give the “come ahead” signal, saw Guthrie start crossing the track toward the south side, waited for the ladder of the engine to come to where he was standing, and after climbing up to the locomotive cab, walked across to his own side and looked for Guthrie. He saw Guthrie’s grip on the ground but saw nothing of Guthrie. The fireman then went back to the other side of the engine, saw nobody there and started down the ladder. It was after that that the fireman heard Guthrie’s cries and told the engineer to stop. It clearly appears that the portion of the locomotive ahead of the cab was so wide that there was no opportunity for the engineer from his position to see Guthrie after he started to cross the track. Counsel for Guthrie placed the negligence upon the fireman in two particulars; in the first place, it is asserted that the fireman was negligent in not remaining upon the ground where he was when he saw Guthrie start to cross the tracks until such time as he had made sure that Guthrie was safely across. In the second place, it is asserted that when the fireman returned to his own station on the left side of the cab and looked for Guthrie and did not see him, he should have known that something was wrong and told the engineer to stop. Without considering the first of these contentions, it seems that the record contains evidence which might warrant the jury in believing that when the fireman looked out and saw that Guthrie was missing there was yet time to have stopped the locomotive before it reached him. Guthrie testified that when he threw the switch the locomotive was between 200 and 250 feet away. If the locomotive was moving at three miles per hour this means it was traveling approximately 4% feet per second. It would probably be a matter of common knowledge that since the fireman was only a few steps from the ladder when he stopped, it would not take him more than 20 seconds to climb the ladder and return to his station. Accordingly, in that time the locomotive would have traveled 90 feet, and it would still be a considerable distance away from where Guthrie was caught. It is true that the fireman placed the front of the locomotive much closer to Guthrie than would appear from Guthrie’s testimony, but the resolving of that difference would be for the jury. A mere -reference to the more -recent decisions of the Supreme Court -is all that is required to demonstrate that there was sufficient evidence to warrant the court in submitting both claims of negligence to the jury. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967; Bailey v. Central Vermont Ry. Co., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Wilkerson v. McCarthy, 336 U.S. 53, 69 S. Ct. 413. The evidence indicates that it was entirely proper for Guthrie to cross the track as he did. Under these circumstances, the duty to provide a safe place to .work was such that under the decisions mentioned it was for the .jury to say whether negligence existed in connection with the maintenance of the area in and about and connected with the switch. Cf. Southern Ry. Co. v. Puckett, 16 Ga.App. 551, 85 S.E. 809, affirmed 244 U.S. 571, 37 S.Ct. 703, 61 L.Ed. 1321, and cited in Brown v. Western R. Co., 1949, 338 U.S. 294, 70 S.Ct. 105. It is even more clear, we think, that it was a jury question whether the fireman’s delay in warning the engineer to stop constituted negligence. Appellant made a motion for a new trial upon the ground, among others, that the verdict is excessive and appears to have been given under the influence of passion and prejudice. It is said the verdict for $100,000 is contrary to the evidence in that it appears from its amount that no reduction in the amount of the award was made because of the contributory negligence of the plaintiff. In this connection appellant calls attention to the comparative negligence rule which was adopted by the Employers Liability Act, and argues that the court cannot properly consider the propriety of a verdict of this size without at the same time considering the evidence to determine whether the jury made proper deductions or any deduction on account of claimant’s contributory negligence. This, it is said, requires that the court review the evidence of contributory negligence. We shall have occasion later in this opinion to consider the question of the claimed excessive amount of the verdict. But insofar as contributory negligence may have a bearing on its amount, it is our opinion that for the same reason that the question of negligence vel non on the part of the company was one to be decided by the jury, the question of whether plaintiff was guilty of contributory negligence was also one for the jury to decide. Appellant specifies error in respect to the court’s failure to give, in the language proposed by appellant, a considerable number of requested instructions. It is not claimed that the court’s charge was not technically correct, as far as it went, but it is said that the instructions should have been amplified to the end that the jury be furnished standards and tests to guide it in the determination of the issues submitted to it. The court’s charge to the jury, although brief, covered the issues to he determined. The main contention of appellant is that the instructions were too brief. Thus, although “negligence” was properly defined, it is complained that the court should have defined “contributory negligence” in a separate instruction, and in the language which the courts commonly use for that purpose. Here it is well to bear in mind what was said in Continental Improvement Co. v. Stead, 95 U.S. 161, 165, 24 L.Ed. 403. “Perhaps some of the abstract propositions of the defendant’s counsel contained in the instructions asked for, based on the facts assumed therein, if such facts were conceded, or found in a special verdict, would be technically correct. But a judge is not bound to charge upon assumed facts in the ipsissima verba of counsel, nor to give categorical answers to a juridical catechism based on such assumption. Such a course would often mislead the jury instead of enlightening them, and is calculated rather to involve the case in the meshes of technicality, than to promote the ends of law and justice. It 'belongs to the judicial office to exercise discretion as to the style and form in which to expound the law and comment upon the facts. If a judge states the law incorrectly, or refuses to state it at all, on a point material to the issue, the party aggrieved will be entitled to a new trial. But when he explains the whole law applicable to the case in hand, as we think was done in this case, he cannot be called upon to express it in the categorical form, based upon assumed facts, which counsel choose to present to him.” Cf. Tyson-Long Co. v. Wolfe, 7 Cir., 81 F.2d 82, 84. While some of these requested instructions might properly have been added to the charge, yet we find no prejudicial error in their omission. Others were prop'erly refused for other reasons. Some were peremptory, and therefore, for reasons we have previously stated in commenting upon proof of negligence, they were properly rej ected. ■ [5,6] Other requested instructions not only added no essential feature to the 'charge given, but were subject to other valid objections. It is earnestly argued that the verdict is so grossly excessive as to require a conclu■sion that it was the result of passion and prejudice. It is contended that the trial court erred in refusing a new trial on this ground. Guthrie’s earnings for 1946, his last full year as an engineer, were $5,169.92. After his injuries, and before trial, wage increases actually made for men in his position would have increased his earnings by one-third, thus making -them $6,893. Appellant argues that in any calculation of loss of earnings we must throw out the amounts to be paid in taxes, in other words, confine his loss -to his reasonably to be expected “take-home” pay. Counsel for Guthrie challenge this, as they say the amount of taxes is purely speculative, and cite Stokes v. United States, 2 Cir., 144 F.2d 82, which seems to support them. We think, however, that for the expected period of Guthrie’s life, he would have found taxes fully as certain as his prospect of continued earnings. In 1946 his net taxes were $524.90. We think that the record will not establish a possible loss of earnings in excess of $6,000 per year after taxes. Whether that possible loss is reasonably probable must depend upon whether Guthrie’s disability is total. There is also controversy as to whether loss of earnings can be said to relate to a period after Guthrie would have reached age 70, when the rules of his employer would require his retirement. We think the prospect of a continuance of employment after 70, and after compulsory retirement from employment by the Southern Pacific, too remote to enter calculations here. And for similar reasons we think the jury would be warranted in believing that the prospect of a man past 59, with but one leg, getting a job in the labor market in competition with younger and able-bodied men, was equally remote. Computed at 3 per cent the present worth of $6,000 a year for eleven years is $55,515.74. This figure is somewhat less than that arrived at by the trial judge, whose opinion stated that the amount would be “between $60,000, and $70,000.” Such a figure would be produced if the total earnings of $6,893 were considered, without deduction for taxes. It is apparent that an appraisal of the verdict shows that assuming that the jury correctly appraised the present worth of the loss of earnings, there must have been some $45,000 awarded on account of such items of damage as pain and suffering, inconvenience and disfigurement. The evidence as to these factors was that Guthrie was hospitalized for 37 days during which he underwent two operations on his stump. In the process of healing a 27 degree contracture of the right thigh developed, so that the stump of his leg extended at an angle which up to the time of trial had prevented him from wearing an artificial limb, and it appeared possible that he would never be able to wear one. He suffered from phantom pain in the cut limb, there was tenderness over the cut end of the sciatic nerve, and the medical testimony was that this phantom pain, a continued constant burning sensation as if he felt his amputated foot, was characteristic of amputees generally, and was real pain, often remaining constant and permanent. Loss of the leg has increased his discomfort in his back, due to a congenital anomaly which previously existed there. It is common knowledge that for a man of Guthrie’s age, aches and pains arising out of physical disabilities do not ordinarily lessen, as they might for a younger man. We do not think it necessary to determine whether the probability of future suffering was proven with the requisite degree of certainty. On the whole the inconvenience, the disfigurement, and certainly some degree of distress, are shown to be both substantial and permanent. “Insofar as the award of damages to him consists of compensation for pain and suffering it is, obviously, nothing that an appellate court can, or a trial court for that matter, measure by a yardstick as to whether the jury has given too much or too little.” The same is true with respect to the elements of inconvenience and disfigurement. And in comparing the amount here awarded with amounts previously held by the courts to be excessive, we are bound to consider “the century’s continued depreciation of the purchasing value of the dollar, with the extraordinary acceleration of the rate of decrease of the past decade.” Nevertheless, it is the opinion of the members of this court that the amount of the verdict is too high. What we, as an appellate court, are permitted to do about such a situation, is another matter. It appears to be generally agreed that when it can be said that the verdict of ■the jury was the result of passion or prejudice, it is the duty of the appellate court to set aside the verdict and grant a new trial. Southern Pac. Co. v. Zehnle, 9 Cir., 163 F.2d 453; L. E. Whitham Const. Co. v. Remer, 10 Cir., 105 F.2d 371; American Ice Co. v. Moorehead, 62 App.D.C. 266, 66 F.2d 792. In such a case a new trial must be ordered, — the error cannot be' cured by a remittitur. Minneapolis, St. P. & S. S. M. Ry. Co., v. Moquin, 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243. Some authorities hold that passion and prejudice may not be inferred from the mere excessiveness of the verdict, proof of appeals to passion and prejudice not appearing in the record. Larsen v. Chicago & N. W. R. Co., 7 Cir., 171 F.2d 841, 845. As to this, we need not express any opinion for the reason that in our view there is nothing in this case, either in the siz.e of the verdict or otherwise, sufficient to establish the existence of passion or prejudice. There is an abundance of authority in the decisions of the federal courts that in this situation an appellate court has no power to do anything about such a verdict. The view most commonly expressed is that stated by Judge Goodrich, for the Court of Appeals of the Third Circuit, in Scott v. Baltimore & O. R. Co., supra, as follows: “The members of the Court think the verdict is too high. But they also feel very clear that there is nothing the Court can do about it. * * * ” “A long list of cases in the federal courts demonstrates clearly that the federal appellate courts, including the Supreme Court, will not review a judgment for excessiveness of damages even in cases where the amount of damage is capable of much more precise ascertainment than it is in a personal injury case.” The cases in accord, cited in the margin of that court’s opinion, could be multiplied. Most of the cases so holding cite Southern Ry. Carolina Division v. Bennett, 233 U.S. 80, at page 87, 34 S.Ct. 566, at page 567, 58 L.Ed. 860, in which it was said: “It may be admitted that if it were true that the excess appeared as matter of law, —that if, for instance, the statute fixed a maximum and the verdict exceeded it, — a question might arise for this court. But a case of mere excess upon the evidence is a matter to be dealt with by the trial court. It does not present a question for re-examination here upon a writ of error.” On the other hand, in Cobb v. Lepisto, 9 Cir., 6 F.2d 128, this court remanded a case with directions to order a new trial unless an excess amount, stated 'by this court, were remitted. In Department of Water & Power of City of Los Angeles v. Anderson, 9 Cir., 95 F.2d 577, while finding the verdict there in question not to be “grossly excessive”, this court stated the rule of Cobb v. Lepisto to be as follows, 95 F.2d at page 586: “Although it was held in Southern Ry. Co. v. Montgomery, 5 Cir., 46 F.2d 990, 991, that a Circuit Court of Appeals has ‘no jurisdiction to correct a verdict because it is excessive,’ the rule in this court is that the refusal to grant a new trial is ‘such air abuse of discretion as is reviewable by this court’ where the verdict is ‘grossly excessive.’ ”. In Virginian Ry. Co. v. Armentrout, 166 F.2d 400, the Court of Appeals for the Fourth Circuit, reversed the judgment and ordered a new trial in a personal injury case because of its determination that the verdict was excessive notwithstanding the trial judge had denied a motion for new trial made upon this ground. The court cited Cobb v. Lepisto, supra, with approval and said: “To the federal trial judge, the law gives ample power to see that justice is done in causes pending before him; and the responsibility attendant upon such power is his in full measure. While according due respect to the findings of the jury, he should not hesitate to set aside their verdict and grant a new trial in any case where the ends of justice so require. * * * “The power of this court to reverse the trial court for failure to exercise the power, where such failure, as here, amounts to an abuse of discretion, is likewise clear. * *" [166 F.2d 408]. The writer of this opinion thinks that this court should remand this case with directions to grant a new trial unless the appellee shall file his consent in writing to remit from the judgment now entered the sum of $20,000 together with all interest, if any, which may have accrued upon the amount so remitted. Neither the industry of counsel nor our own research has been able to turn up any case of any appellate court where a verdict anywhere near so high as that rendered here has been upheld as compensation for comparable injuries. Cobb v. Lepisto, supra, as well as Estabrook v. Butte Anaconda & Pacific Ry. Co., 9 Cir., 163 F.2d 781, in which a new trial was ordered because of inadequate damages, had fixed the rule of this circuit as one sustaining the power of a federal appellate court to review the trial court’s action in a case of this kind. He thinks this power should be exercised here independently of the fact that the defect in the charge mentioned in note 5, supra, probably accounts for the excessive verdict; that this defect furnishes a special additional reason for holding the court’s refusal to set aside the verdict an abuse of discretion and that the defective instruction may be taken into consideration in this connection notwithstanding appellant’s failure to make specific objection to the charge on this ground. He is of the opinion that a disclaimer of appellate power such as that stated in Scott v. Baltimore & O. R. Co., supra, is a manifestation of a momentum generated in the earlier cases, and not yet arrested simply because the courts expressing this doctrine have failed to note that the procedural obstacles which originally prevented appellate review no longer exist, as was stated in the Fairmount Glass Works case, supra, note 15. In his opinion the doctrine of impotence expressed in the cases mentioned is due for a general overhauling and he thinks that the decision of Judge Parker in Virginian Railway Co. v. Armentrout, supra, points to the reasons why this court should not abdicate the power which it has previously asserted in Cobb v. Lepisto, supra, and Department of Water & Power v. Anderson, supra. The majority of the court, however, do not agree with what has been stated in the preceding paragraph. They -find it unnecessary to express any opinion here as to whether, in a case of this kind, this court may not, under any circumstances, review the action of the trial court upon an application for a new trial because of the alleged excessiveness of the verdict. The court cannot say that the verdict here is so large that the refusal of the trial court to grant a new trial, or to condition a denial of a new trial on a remittitur, can be called an abuse of discretion. The majority of the court think the amount of this verdict left it within the area of the trial court’s discretion. Finally, error is assigned because Guthrie was permitted to testify that on another railroad, the Texas and Pacific, employees are permitted to work beyond age 701 It is sufficient to say that we think the admission of that evidence could not have been prejudicial. Katalla Co. v. Rones, 9 Cir., 186 F. 30, 35. The judgment is affirmed. The company’s roadmaster testified as follows: “Q. Let me ask you this: If the tie bar and the head block were so close together that they were two inches in one end, three inches in the middle and four inches at the other end, and if you had a seven-to-nine inch hole underneath that so that a man may got his leg caught and broken in there, wouldn’t you say as a track man and roadmaster, wouldn’t you consider that to be a. dangerous condition? A. I would, sir.” Appellant has an ingenious explanation for this answer, saying that the witness merely meant that it was dangerous because the ties would move. We think that-since the question referred to getting the leg caught the witness must have understood the question as referring to danger for a man crossing. . For a summary of the recent decisions of the Supreme Court dealing with this question see Appendix to opinion of Mr. Justice Douglas, concurring, in Wilkerson v. McCarthy, 336 U.S. 53, at page 71, 69 S.Ct. 413, 422. It is. noteworthy that the Supreme Court has recently reversed a state supreme court upon this point by per curiam decision simply upon the authority of the cases here cited. Hill v. Atlantic Coast Line Railroad Co., 336 U.S. 911, 69 S.Ct. 507. . Some of tile requested instructions were cautionary in character and designed to warn the jury against being misled in certain directions. Included in this group are instructions that the damages must not be more than reasonable; that the amount demanded in the complaint is no proof but is merely a claim; that the jury are not to fix damages by inquiring what sum they would take to exchange places with the plaintiff; that damages must be proved with reasonable certainty, and that the jury must not speculate or conjecture; that if plaintiff’s loss of earning capacity is not total, due allowance for possible earnings must be made; that an award for loss of earning capacity must be limited to the present value or worth of the anticipated losses; that damages must not constitute a gift or windfall to plaintiff or be awarded as punishment or I>onalty to the defendant; that the jury must not be misled by the words “in whole or in part” in the Act, hut that the plaintiff must prove that defendant’s negligence, if any, was a proximate cause of his injury; that mere risk or hazard or danger is not itself negligence; that the defendant is not liable in absence of proof of negligence; that the defendant was not required to use the utmost care, but only ordinary care and ordinary skill; that defendant was not bound to provide and maintain the best and safest conditions, or to supply facilities, equipment or appliances which were not called for as a practical matter and in the exercise of ordinary care; that in determining whether plaintiff was guilty of contributory negligence, the jury must consider all the evidence, that produced by the plaintiff as well as that produced by the defendant. . The charge of the court correctly defined negligence and stated the effect of contributory negligence on the part of plaintiff if the jury should determine that such existed. The jury were told that they must exclude any sympathy as a basis for any verdict; that they must not have any prejudice against the defendant because it is a corporation or engaged in railroad business, or is an employer; that any award of damages must be reasonable. They were correctly instructed as to the provisions of the Federal Employers’ Liability Act and of the necessity of proving that plaintiff’s injuries were proximately caused or contributed to by the negligence of the employer. The jury were advised with great care as to the application of the rule of comparative negligence in the event that the jury should find contributory negligence, and the jury were told of the duty of the plaintiff to exercise reasonable care for his own safety. They were told that if the accident occurred solely and exclusively from the negligence of the plaintiff, their verdict must be for the defendant. . A comparison of the .requested instructions with the court’s charge would indicate that appellant’s requested instruction No. 5, defining present worth of prospective loss of earning capacity, was more complete than the instruction of the court on the same subject, in reciting that the amount should be so computed that “at the end of the period for which allowance is made nothing would remain.” Appellant has not argued that the charge was defective in this particular. Nor was this point specified in the objections to the instructions. It was then stated: “We respectfully object and except to the refusal of the court to give defendant’s instruction No. 5, that the question is not loss of wages, but also loss of earning capacity, and only that could be used.” See Federal Rules of Civil Procedure, Rule 51, 28 U.S.C.A. Cf. Hall v. Aetna Life Ins. Co., 8 Cir., 85 F.2d 447, 450. . Thus the request No. 29, to the effect that because of the construction of the locomotive in- such manner that Guthrie was out of the view of the operators of the locomotive until he was run over, “you cannot find that the operators of the locomotive were negligent because they did not see Guthrie until after he was run over, if that is the fact”, suggests what was said in Union Pacific R.R. Co. v. Hadley, 246 U.S. 330, 332, 38 S.Ct. 318, 319, 62 L.Ed. 751, as follows: “On the question of its negligence the defendant undertook to split up the charge into ■items mentioned in the declaration as constituent elements and to ask a ruling as 'to each. But the whole may be greater than the sum of its pai-ts, and the Court was justified in leaving the general que'stion to the jury if it thought that the defendant should not be allowed to take the bundle apart and break the sticks separately, and if the defendant’s conduct viewed as a whole warranted a finding of neglect.” Appellant asked for an instruction No. 36, as follows: “If plaintiff Guthrie was experienced in, and familiar with, the work he was doing and knew and appreciated normal risks and hazards which attend it, including chance of injury from getting his foot caught in a switch in front of an approaching train, defendant Southern Pacific was not required to take steps to protect him against such of those risks and hazards as did not result from its negligence, which were normal and customary risks and hazards of the employment, which were known to, and appreciated by, him and which he himself could have avoided by exercising reasonable care for his own safety.” We think that since the decision in Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967, a court would do well to avoid the giving of such an'instruction which squints in the direction of assumption of risk. , Of course, if Guthrie is awarded a sum as the present worth of his loss of earning capacity, it must be assumed that the income from investments acquired with that .sum would be taxable. If estimated tax is properly deducted at one end, it should be added at the other. Since present worth is computed upon the hypothesis of a gradually diminishing principal, the interest or income factor in the amounts consumed each year would not be large, and would not greatly, if at all, exceed his exemptions. . In 1948 the twelve largest life insurance companies in the United States made a return upon their invested funds which on the average (not weighted) was slightly less than 3 per cent. (Best’s Life Insurance Reports, 1949 Ed., Alfred M. Best Co. Inc. N.Y.) . 9.252624 times the annual sum. Bailey’s Tables and Methods, (Times-Mirror Press, Los Angeles). . The figure would be $63,778.33. . Scott v. Baltimore & O. R. Co., 3 Cir., 151 F.2d 61, 64. . Southern Pacific Co. v. Zehnle, 9 Cir., 163 F.2d 453, 454. See also, “Fluctuating Dollars and Tort Damage Verdicts”, 48 Columbia Law Review, p. 264, footnote 1. . Cf. Kurn v. Stanfield, 8 Cir., 111 F.2d 469. See “Correction of Damage Verdicts by Remittitur and Additur”, 44 Vale Law Journal 318; cases cited in note 18, p. 321. . . Some of these cases, more recent than Scott v. Baltimore & O. R. Co., supra, are Feltman v. Sammond, 82 U.S.App.D.C. 404, 166 F.2d 213, Reid v. Nelson, 5 Cir., 154 F.2d 724, Chicago & N. W. Ry. Co. v. Green, 8 Cir., 164 F.2d 55, Herzig v. Swift & Co., 2 Cir., 154 F.2d 64. . Cobb v. Lepisto, supra, prior to the decision in Virginian Ry. Co. v. Armentrout, supra, has been stated to stand alone. See Miller v. Maryland Casualty Co., 2 Cir., 40 F.2d 463. Cf. Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, footnote 14, page 485, 53 S.Ct. 252, 255, 77 L.Ed. 439. It dealt with a verdict in an action to recover the value of services rendered, something more readily calculated than the compensation for pain, suffering, and the like. Southern Railway Co. v. Bennett, supra, and the earlier cases asserting want of power to review the action of the trial court in denying a new trial on the ground of excessiveness of the verdict, were explained by Judge Learned Hand in Miller v. Maryland Casualty Co., 2 Cir., 40 F.2d 463. The rule is there said to be based upon a procedural difficulty in that historically the writ of error did not afford review of the trial court’s action upon a motion for a new trial, and it was said that the appeal later provided for was subject to the same limitations. Subsequently in Fairmount Glass Works v. Coal Co., 287 U.S. 474, 482, 53 S.Ct. 252, 254, 77 L.Ed. 439, the Supreme Court expressly referred to the decision in Miller v. Maryland, supra, saying: “It has been suggested that a review must be denied becanse of the historical limitation of the writ of error to matters within the record, of which the motion for a new trial was not a part. Compare Judge Learned Hand in Miller v. Maryland Casualty Co. [2 Cir.], 40 F.2d 463. But the denial of review can no longer rest upon this ground, since the record before the appellate court has been enlarged to include in the bill of exceptions a motion for a new trial, made either before or after judgment.” . Rule 75 of the Federal Rules of Civil Procedure relating to the record on appeal, is even more inclusive than the hill of exceptions referred to in the Fair-mount Glass Works case. In the field of criminal appeals the Supreme Court in Griflin v. United States, 336 U.S. 704, 69 S.Ct. 814, noted no procedural difficulty in reviewing the trial court’s action upon a motion for a new trial notwithstanding the earlier disclaimers of authority in cases such as Blitz v. U. S., 153 U.S. 308, 14 S.Ct. 924, 38 L.Ed. 725. Cf. National Bank of Commerce v. U. S., 9 Cir., 224 F. 679, 683. The rational explanation is to be found in Rule 39(b), Federal Rules Criminal Procedure, 18 U.S.C.A. incorporating the rules and practice governing civil appeals. . Cf. Pacific Greyhound Lines v. Rumeh, 9 Cir., 1949, 178 F.2d 652, in which this court considered at length the question whether the verdicts there were excessive. Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:

sc_issuearea

B

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. CONNECTICUT DEPARTMENT OF INCOME MAINTENANCE v. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, et al. No. 83-2136. Argued March 27, 1985 Decided May 20, 1985 Stevens, J., delivered the opinion for a unanimous Court. Charles A. Miller argued the cause for petitioner. With him on the briefs were Joseph I. Lieberman, Attorney General of Connecticut, Donald M. Longley, Assistant Attorney General, and Michael A. Roth. Kathryn A. Oberly argued the cause for respondents. With her on the brief were Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, and Howard S. Scher. Briefs of amici curiae urging reversal were filed for the State of Illinois et al. by Neil F. Hartigan, Attorney General of Illinois, Jill Wine-Banks, Solicitor General, James C. O’Connell and Barbara L. Greenspan, Special Assistant Attorneys General, John K. Van de Kamp, Attorney General of California, Thomas E. Warriner, Assistant Attorney General, Elisabeth C. Brandt, Deputy Attorney General, Hubert H. Humphrey III, Attorney General of Minnesota, and Beverly Jones Heydinger, Assistant Attorney General; for the Commonwealth of Massachusetts by Francis X. Bellotti, Attorney General, and Thomas A. Bamico and William L. Pardee, Assistant Attorneys General; and for the American Psychiatric Association et al. by Joel I. Klein, Paul M. Smith, and R. Emmett Poundstone III. Justice Stevens delivered the opinion of the Court. Services performed for patients between the ages of 21 and 65 in an “institution for mental diseases” (IMD) are not covered by the Medicaid Act. The Secretary of Health and Human Services has adopted a definition of that term that is broad enough to encompass an “intermediate care facility” (ICF). The Middletown Haven Rest Home is an ICF that provides care for persons with mental illness as well as other diseases. The narrow question presented by this case is whether Middletown Haven is an IMD within the meaning of the Act. The broader question is whether the Secretary’s definition of an IMD, which permits an ICF to be classified as an IMD, is consistent with the intent of Congress. During the period between January 1977 and September 1979, the State of Connecticut paid Middletown Haven for the services it provided to Medicaid eligible patients, including those between the ages of 21 and 65 who had been transferred to Middletown Haven from state mental hospitals. Under the Medicaid program, the State received federal reimbursement of $1,634,655 for those payments. After receiving information that Connecticut was discharging large numbers of mental patients from state mental institutions into ICFs and skilled nursing facilities, and after numerous meetings with state officials, the Department of Health and Human Services selected Middletown Haven, which is certified by the State as an ICF, for review and audit. The Department believed that the State was receiving federal financial aid in violation of applicable regulations that prohibited aid to IMDs. Middletown Haven is a privately owned, 180-bed facility that is licensed by the Connecticut State Department of Health as a “Rest Home with Nursing Supervision” with authority “to care for persons with certain psychiatric conditions.” During the years 1977-1979 over 77% of its patients suffered from a major mental illness, and over half of its patients were transferees from state mental hospitals. Middletown Haven employed a professional staff, including three psychiatrists, that specialized in the care of the mentally ill; they viewed it as a psychiatric facility. In sum, there was ample evidence for the review team’s conclusion that Middletown was “primarily engaged” in providing diagnostic treatment and care for persons with mental diseases within the meaning of the applicable regulations. After the completion of its audit, the Department gave notice to the State that the federal reimbursement of $1,634,655 was not allowable because Middletown Haven had been identified as an IMD and because payments for services to the mentally ill between the ages of 21 and 65 in IMDs were not eligible for federal financial participation. The State’s request for administrative review of the disallowance decision was consolidated with similar requests by the States of Illinois, Minnesota, and California. The Department’s Grant Appeals Board upheld the disallowance. The State then obtained judicial review by filing this action. The United States District Court for the District of Connecticut held that the Secretary’s decision was not supported by the statute and set aside the disallowance. Connecticut v. Schweiker, 557 F. Supp. 1077 (1983). The Court of Appeals for the Second Circuit reversed, 731 F. 2d 1052 (1984), expressly rejecting the contrary reasoning of the Eighth Circuit. See Minnesota v. Heckler, 718 F. 2d 852 (1983). The square conflict on an important question of statutory construction prompted us to grant certiorari. 469 U. S. 929 (1984). Connecticut contends that the same institution cannot be both an “institution for mental diseases” and an “intermediate care facility”; in other words, IMDs and ICFs are mutually exclusive categories. Because the Secretary acknowledges that Middletown Haven is an ICF, the State concludes that it cannot be an IMD. In our view, however, the State’s position is foreclosed by the plain language of the statute, by the Secretary’s reasonable and longstanding interpretation of the Act, and by the Act’s legislative history. We therefore affirm. I In 1965 Congress authorized the Medicaid program by adding Title XIX to the Social Security Act; the program was established “for the purpose of providing federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons. ” The program offers the financial assistance to States that submit and have approved by the Secretary plans for “medical assistance.” In its present form, the Act authorizes reimbursement for 18 categories of medical assistance. For three types of covered medical services — inpatient hospital services, skilled nursing facilities services, and, most importantly, intermediate care facility services — the definition contains an express exception for services performed in IMDs. The thrice-repeated exclusion demonstrates that Congress did not intend the ICF and IMD categories to be mutually exclusive; if Congress had intended separate categories, the IMD exclusion from services in other types of facilities would be unnecessary and illogical. Other provisions of the Act make it clear that services performed for the mentally ill may be covered, provided the services are performed in a hospital, a skilled nursing facility, or an ICF that is not an IMD. Thus, the definition of an ICF expressly describes persons “who because of their mental or physical condition” require institutional care but do not need the level of services provided by a skilled nursing facility or a hospital. And § 1396d(a)(18)(B) prohibits medical assistance for services to individuals under 65 who are patients in IMDs, while another provision, § 1396d(a)(14), also allows such payments for “inpatient hospital services, skilled nursing facility services, and intermediate care facility services for individuals 65 years of age or over in an institution for mental diseases.” To accept the State’s interpretation would render the language of § 1396d(a)(14) unnecessary and would render lifeless Congress’ approval of ICF services for persons 65 or over in IMDs. “The term ‘medical assistance’ means payment of part or all of the cost of the following care and services ... for individuals[:]. . . “(1) inpatient hospital services (other than services in an institution for mental diseases); “(4)(A) skilled nursing facility services (other than services in an institution for mental diseases) for individuals 21 years of age or older . . . ; “(15) intermediate care facility services (other than such services in an institution for mental diseases) for individuals who are determined ... to be in need of such care. . . .” 42 U. S. C. §§ 1396d(a)(1), (a)(4)(A), (a)(15) (1982 ed., Supp. III) (emphasis added). Thus, there is ample textual support for the conclusion that an ICF may be an IMD. II In the absence of a statutory definition of the term “institution for mental diseases,” it is appropriate to consider the Secretary’s interpretation of that term. The Secretary’s initial definition was provided shortly after the Medicaid program was enacted in 1965. It stated: “Any individual who has not attained 65 years of age and is a patient in an institution for . . . mental diseases; i. e., an institution whose overall character is that of a facility established and maintained primarily for the care and treatment of individuals with . . . mental diseases (whether or not it is licensed) .” (Emphasis added.) A few years later, the Secretary promulgated the following: “Whether an institution is one for . . . mental diseases will be determined by whether its overall character is that of a facility established and maintained primarily for the care and treatment of individuals with . . . mental diseases (whether licensed or not) .... “‘Institution for mental diseases’ means an institution which is primarily engaged in providing diagnosis, treatment or care of persons with mental diseases, including medical attention, nursing care and related services.” The current definition — like the earlier versions — is essentially the same as the original definition developed almost two decades ago. In both the earliest and the later interpretations of “institution for mental diseases,” the Secretary consistently emphasized the “overall character” of the facility when defining an IMD. Congress has never indicated dissatisfaction with the Secretary’s undeviating construction. “We have often noted that the interpretation of an agency charged with the administration of a statute is entitled to substantial deference.” Blum v. Bacon, 457 U. S. 132, 141 (1982). Moreover, the agency’s construction need not be the only reasonable one in order to gain judicial approval. It follows that the Secretary was authorized to determine that medical assistance is not available if the overall character of a facility discloses that it is maintained primarily for the care and treatment of individuals with mental diseases. We must therefore reject the State’s suggestion that ICFs and skilled nursing facilities that are primarily engaged in the care of the mentally ill are not “institutions for mental diseases” within the meaning of the Act. HH I — I HH The Medicaid program as enacted in 1965 provided coverage for elderly patients in IMDs, but also contained an express exclusion for patients under 65 years of age in IMDs. The Report of the Senate Committee on Finance made it clear that the IMD exclusion applied to both public and private mental institutions, and explained that it was based on the view that long-term care in mental institutions was a state responsibility. The Committee Report also explained that the decision to provide federal financial assistance to the mentally ill who were 65 years of age or over was based in part on the requirement that the state plan would include adequate provision for individual review of a patient’s needs. Moreover, the Report stated that States had to develop and to implement comprehensive mental health programs. These latter conditions are components of the “Long Amendment,” and provide support for the State’s contention that federal policy favors the transfer of patients — at least the elderly — from IMDs to less restrictive treatment facilities. In 1967, without amending the Medicaid statute, Congress expanded the aid programs for the aged, blind, and disabled by authorizing federal reimbursement for the cost of services in ICFs. The 1967 amendments do not expressly mention IMDs. Four years later, in 1971, Congress' adopted the amendment to the Medicaid statute that enlarged the definition of covered medical services to include services performed by ICFs. The amendments retained the IMD exclusion, an exclusion that remains in the Act today. The next year, Congress added coverage for “inpatient psychiatric hospital services for individuals under 21.” In its deliberations on the 1972 amendments, Congress also considered the desirability of extending Medicaid “mental hospital coverage” to persons between the ages of 21 and 65, but decided not to do so. See Schweiker v. Wilson, 450 U. S. 221, 236 (1981). The State points to several aspects of this lengthy legislative history to support its argument that the exception for IMDs should be narrowly construed to encompass only traditional custodial mental hospitals. It places special emphasis on the “Long Amendment,” which surely indicates that federal policy favors the transfer of mentally ill patients to alternative and less restrictive care facilities when feasible. It also notes that when federal assistance for ICFs was first authorized in 1967, no express exclusion for IMDs was made, and that the text of the Act plainly contemplates that ICF services will be provided for the mentally ill. Finally, it points to a number of comments by legislators indicating that they assumed that the IMD exclusion only referred to traditional mental hospitals. The history on which the State relies does clearly establish that an individual is not ineligible for Medicaid simply because his need for care is based on a diagnosis of mental illness. Moreover, it is perfectly clear that hospitals, skilled nursing facilities, and intermediate care facilities are not ineligible simply because they provide care and treatment for mentally ill patients. However, the legislative history also demonstrates that Congress has thrice since 1965 not accepted proposals to lift the IMD exclusion for persons under 65. But most damaging to the State’s position is a statement by Congress from the legislative history of the 1972 amendments, which authorized Medicaid funding for ICF services for the elderly in IMDs. In explaining this amendment, the Conference Report stated: “The Senate amendment added a new section to the House bill which provided that when a State chooses to cover individuals age 65 and over in institutions for . . . mental diseases it must cover such care in intermediate care facilities as well as in hospitals and skilled nursing homes.” This statement of congressional intent is consistent with the plain language of the statute and with the Secretary’s longstanding administrative interpretation: hospitals, skilled nursing facilities, and ICFs can be IMDs and the terms are not mutually exclusive. The State has persuasively argued that its position represents sound and enlightened policy. It has not, however, established that Congress has only excluded “hospitals” in which a mental illness is treated instead of “institutions for mental diseases.” The express authorization for coverage of individuals 65 years of age or over uses language that plainly indicates that a hospital, a skilled nursing facility, or an ICF may be an IMD; this indication is unambiguously confirmed by the fact that the same parenthetical exclusion for IMDs applies to all three types of facilities. Moreover, the Secretary’s interpretation of “institution for mental diseases” comports with the plain language of the statute. Finally, the legislative history does not reveal any clear expression of contrary congressional intent. The judgment of the Court of Appeals is affirmed. It is so ordered. App. 35a-37a. Id., at 17a. Id., at 22a-23a. Id., at 14a. Although Middletown Haven did not hold itself out to the media as a mental institution, and although the level of care provided to patients at the facility was less restrictive than that provided in a typical mental hospital, Middletown Haven did hold itself out as a facility specializing in the treatment of mental diseases to sources of referral. Id., at 15a. Moreover, Middletown Haven cared for individuals' that could have been admitted into mental institutions and had a patient population uncharacteristic of nursing homes. Id., at 20a. The Secretary’s regulations, 42 CFR §435.1009(e) (1984), define an IMD as follows: “an institution that is primarily engaged in providing diagnosis, treatment or care of persons with mental diseases, including medical attention, nursing care and related services. Whether an institution is an institution for mental diseases is determined by its overall character as that of a facility established and maintained primarily for the care and treatment of individuals with mental diseases, whether or not it is licensed as such.” The Secretary has developed criteria designed to focus on what constitutes “primarily engaged” and “overall character.” The review team utilized the following criteria when evaluating Middletown Haven: 1. That a facility is licensed as a mental institution; 2. That it advertises or holds itself out as a mental institution; 3. That more than 50% of the patients have a disability in mental functioning; 4. That it is used by mental hospitals for alternative care; 5. That patients who may have entered a mental hospital are accepted directly from the community; 6. That the facility is in proximity to a state mental institution (within a 25-mile radius); 7. That the age distribution is uncharacteristic of nursing home patients; 8. That the basis of Medicaid eligibility for patients under 65 is due to a mental disability, exclusive of services in an institution for mental disease; 9. That the facility hires staff specialized in the care of the mentally ill; and 10. That independent professional reviews conducted by state teams report a preponderance of mental patients in the facility. App. 12a-13a, 22a-23a. Id., at 1e-6e. The letter stated that, because federal financial participation “is not available in payments to IMDs for persons aged 21 to 64, and because the State plan does not cover services by such facilities to individuals under 21 or over 65, no payments to IMDs are eligible” for federal financial participation. Id., at 2e. App. to Pet. for Cert. 40d-44d. In addition to filing in District Court, the State sought direct appellate review. The Court of Appeals dismissed for want of jurisdiction. 731 F. 2d 1052, 1055 (CA2 1984). 79 Stat. 343. Harris v. McRae, 448 U. S. 297, 301 (1980). 42 U. S. C. §§ 1396, 1396a. See § 1905(a) of the Act, 42 U. S. C. § 1396d(a) (1982 ed. and Supp. III), as further amended by the Medicare and Medicaid Budget Reconciliation Amendments of 1984, Pub. L. 98-369, § 2335(f), 98 Stat. 1091. The definitions of these three categories of service read as follows: Section 1905(c) of the Act, as set forth in 42 U. S. C. § 1396d(c), provides in part: “For purposes of this subchapter the term ‘intermediate care facility’ means an institution which (1) is licensed under State law to provide, on a regular basis, health-related care and services to individuals who do not require the degree of care and treatment which a hospital or skilled nursing facility is designed to provide, but who because of their mental or physical condition require care and services (above the level of room and board) which can be made available to them only through institutional facilities .... The term ‘intermediate care facility’ also includes any skilled nursing facility or hospital which meets the requirements of the proceeding [sic] sentence.... With respect to services furnished to individuals under age 65, the term ‘intermediate care facility’ shall not include, except as provided in subsection (d) of this section, any public institution or distinct part thereof for mental diseases or mental defects.” It is a familiar principle of statutory construction that courts should give effect, if possible, to every word that Congress has used in a statute. See, e. g., Reiter v. Sonotone Corp., 442 U. S. 330, 339 (1979). Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843-845 (1984). The Act expressly provides the Secretary with authority to “make and publish such rules and regulations, not inconsistent with” the Act “as may be necessary [for its] efficient administration.” 42 U. S. C. § 1302. U. S. Dept. of Health, Education & Welfare, Handbook of Public Assistance Administration, Supplement D—Medical Assistance Programs Under Title XIX of the Social Security Act, ¶ D-4620.2 (1966). Regulations fashioned shortly thereafter restated the essence of this definition: covered “ ‘[ijnpatient hospital services’ are those items and services ordinarily furnished by the hospital for the care and treatment of inpatients ... in an institution maintained primarily for treatment and care of patients with disorders other than . . . mental diseases.” 45 CFR § 249.10(b)(1) (1970) (emphasis added); see also §249.10(b)(4)(i) (skilled nursing home services are “those items and services furnished by a skilled nursing home maintained primarily for the care and treatment of inpatients with disorders other than . . . mental diseases”). 45 CFR §§ 248.60(a)(3)(ii) and (b)(7) (1972). See n. 5, supra. The State recognizes that the “substance of these provisions has not changed materially since their first adoption.” Brief for Petitioner 8. See Unemployment Compensation Comm’n of Alaska v. Aragon, 329 U. S. 143, 153 (1946); see also American Paper Institute, Inc. v. American Electric Power Service Corp., 461 U. S. 402, 423 (1983) (“We need only conclude that [the agency’s interpretation] is a reasonable interpretation of the relevant provisions”). The State also contends that the disallowance undermines the cooperative federalism concept on which the public assistance programs are based. More specifically, the State argues that the disallowance was based on an interpretation of the Act that did not crystallize until after it had received and spent the federal money. In our view, the Secretary’s position has been established with sufficient clarity at least since the 1972 regulations to make this argument untenable. The general policy of federal-state cooperation that underlies the entire program does favor a liberal interpretation of the eligibility provisions of the Act, but as is true of the policy favoring the development of less restrictive treatment programs for the mentally ill that is reflected in the “Long Amendment,” see infra, this page and 534, we must nevertheless respect the apparent limits that Congress has placed on its own decision to fund the implementation of sound policy. 79 Stat. 352. The statute provided that the term “medical assistance” did not include “(A) any such payments with respect to care or services for any individual who is an inmate of a public institution (except as a patient in a medical institution); or “(B) any such payments with respect to care or services for any individual who has not attained 65 years of age and who is a patient in an institution for tuberculosis or mental diseases.” Ibid. The statute also contained a prohibition against payments for certain services rendered in IMDs. Id., at 351-352. The Report stated: “Since the enactment of the Social Security Act, patients in public mental and tuberculosis hospitals have not been eligible under the public assistance titles of the Social Security Act, and only prior to 1951 were individuals eligible who were patients in private mental and tuberculosis hospitals. The reason for this exclusion was that long-term care in such hospitals had traditionally been accepted as a responsibility of the States.” S. Rep. No. 404, 89th Cong., 1st Sess., pt. 1, p. 144 (1965). See also H. R. Rep. No. 213, 89th Cong., 1st Sess., 126 (1965). The Senate Report continued: 26 A second safeguard, under the committee’s bill, is a provision that the State plan include a provision for an individual plan for each patient in the mental hospital to assure that the care provided to him is in his best interests and that there will be initial and periodic review of his medical and other needs. The committee is particularly concerned that the patient receive care and treatment designed to meet his particular needs. Thus, under the committee bill, the State plan would also need to assure that the medical care needed by the patient will be provided him and that other needs considered essential will be met and that there will be periodic redetermination of the need for the individual to be in the hospital. “The committee believes that responsibility for the treatment of persons in mental hospitals — whether or not they be assistance recipients — is that of the mental health agency of the State.” S. Rep. No. 404, 89th Cong., 1st Sess., pt. 1, pp. 145-146 (1965). See also H. R. Rep. No. 213, 89th Cong., 1st Sess., 128 (1965). The Report further stated: “The committee believes it is important that States move ahead promptly to develop comprehensive mental health plans as'contemplated in the Community Mental Health Centers Act of 1963. In order to make certain that the planning required by the committee’s bill will become a part of the overall State mental health planning under the Community Mental Health Centers Act of 1963, the committee’s bill makes the approvability of a State’s plan for assistance for aged individuals in mental hospitals dependent upon a showing of satisfactory progress toward developing and implementing a comprehensive mental health program — including utilization of community mental health centers, nursing homes, and other alternative forms of care.” S. Rep. No. 404, 89th Cong., 1st Sess., pt. 1, p. 146 (1965). See also H. R. Rep. No. 213, 89th Cong., 1st Sess., 129 (1965). See 110 Cong. Rec. 21346-21348 (1964); 79 Stat. 347; 42 U. S. C. §§ 1396a(a)(20), 1396a(a)(21). Commenting on the “Long Amendment,” the Senate Report stated, in part: “The committee bill provides for the development in the State of alternative methods of care and requires that the maximum use be made of the existing resources in the community which offer ways of caring for the mentally ill who are not in hospitals. This is intended to include provision for persons who no longer need care in hospitals and who can, with financial help and social services to the extent needed, make their way in the community.” S. Rep. No. 404, 89th Cong., 1st Sess., pt. 1, p. 146 (1965). See also H. R. Rep. No. 213, 89th Cong., 1st Sess., 128 (1965). 81 Stat. 920-921. The amendments did, however, provide: “(d) Except when inconsistent with the purposes of this section or contrary to any provision of this section, any modification, pursuant to this section, of an approved State plan shall be subject to the same conditions, limitations, rights, and obligations as obtain with respect to such approved State plan.” Id., at 920. The amendments were not actually signed until January 2, 1968, but are generally described as the “1967 amendments.” 85 Stat. 809. The amendment also contained a definition of the term “intermediate care facility” that largely tracks the language contained in the 1967 amendments. That definition, however, contained this comment on services for persons under age 65: “With respect to services furnished to individuals under age 65, the term ‘intermediate care facility’ shall not include, except as provided in subsection (d), any public institution or distinct part thereof for mental diseases or mental defects.” Ibid. A straightforward reading of this sentence strongly implies that a private institution for mental diseases may qualify as an ICF. 86 Stat. 1460-1461. The Senate Report on the bill contains this statement: “The committee also believes that the potential social and economic benefits of extending medicaid inpatient mental hospital coverage to mentally ill persons between the ages of 21 and 65 deserves to be evaluated and has therefore authorized demonstration projects for this purpose.” S. Rep. No. 92-1230, p. 281 (1972). See also id,., at 57. The proposal was, however, rejected in conference. H. R. Conf. Rep. No. 92-1605, p. 65 (1972). Although the history of the IMD exclusion in various amendments to the Act suggests that Congress may have assumed that it would refer primarily to public institutions, the State does not argue that it is so confined. We are confident that Congress would have used the term “public” if it had not intended the exclusion to encompass private institutions as well. See Social Security Amendments of 1971: Hearings on H. R. 1 before the Senate Committee on Finance, 92d Cong., 1st and 2d Sess., pt. 2, pp. 924-941 (1972) (statements of Dr. Jonathan Leopold, Commissioner, Vermont Dept. of Mental Health, and Dr. Kenneth Gaver, Commissioner, Ohio Dept. of Mental Hygiene and Corrections); Social Security Amendments of 1970: Hearings on H. R. 17550 before the Senate Committee on Finance, 91st Cong., 2d Sess., pt. 2, pp. 500-550 (1970); Social Security Amendments of 1967: Hearings on H. R. 12080 before the Senate Committee on Finance, 90th Cong., 1st Sess., pt. 3, p. 1741 (1967) (statement of Dr. Robert W. Gibson, American Psychiatric Association). The 1971 amendments were technically corrected to explain that the IMD exclusion did not prevent reimbursement for ICF services provided to the elderly in IMDs. 86 Stat. 1329, 1459-1460; S. Rep. No. 92-1230, pp. 320-321 (1972). H. R. Conf. Rep. No. 92-1605, p. 64 (1972). Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:

songer_method

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc. Terrell WALKER, Petitioner, Appellant, v. Frederick BUTTERWORTH et al., Respondents, Appellees. No. 78-1448. United States Court of Appeals, First Circuit. Argued March 14, 1979. Decided June 7, 1979. Stephen L. Saltonstall and Eric D. Blu-menson, Boston, Mass., with whom Norman S. Zalkind, Boston, Mass., was on brief, for petitioner, appellant. Robert S. Potters, Asst. Atty. Gen., Crim. Div., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Stephen R. Delin-sky, Asst. Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on brief, for respondents, appellees. Before COFFIN, Chief Judge, BOWNES, Circuit Judge, PETTINE, District Judge. Of the District of Rhode Island, sitting by designation. PETTINE, District Judge. This appeal of a dismissal of a petition for a writ of habeas corpus, 28 U.S.C. § 2254, requires the Court to inspect the constitutional validity of evidentiary and procedural rules traditionally practiced at criminal trials in Massachusetts. At the state court trial, the defendant, Terrell Walker, was convicted of armed robbery and first degree murder; he was found to have successfully organized, with two others, the robbery of the Suffolk Loan Company, during the course of which he shot and killed a policeman stationed therein. The government’s evidence pictured Walker as the leader by showing that he dictated which store was to be robbed, supplied one partner with a weapon and instructed him in its use, arranged for the other partner to drive the getaway car, directed which jewelry display cases to open, arranged the eventual escape and admonished them not to flee prematurely. Walker did not deny any of this. Instead, he pleaded insanity and introduced evidence both expert and lay, as to his mental condition at tile time of the crime. Two doctors testified that examinations of Walker revealed a paranoid character disorder and that on the date of the homicide he was not able to conform his conduct to the law and unable to appreciate the wrongfulness of his act. The government did not contradict the defendant’s medical testimony. Instead, to prove his sanity circumstantially, it relied on the lay evidence showing Walker’s calculated organization of the robbery. In addition it leaned heavily upon the “presumption of sanity”, a judicially created presumption that carries evidentiary weight in Massachusetts. Walker appealed his conviction to the Massachusetts Supreme Judicial Court; the court rejected his numerous assignments of error. Commonwealth v. Walker, 370 Mass. 548, 350 N.E.2d 678 (1976). Walker then renewed his objections in this habeas corpus petition to the federal district court. Chief Judge Caffrey agreed with much of the reasoning of the Supreme Judicial Court and denied the petition. It is this denial that is now before this court. The defendant argues as errors, the trial judge’s instructions as to the “presumption of sanity” and two procedures ^employed in the trial as ordered by the court, i. e., that defendant personally exercise his peremptory challenges and not sit at counsel table but be confined, in the “prisoner’s dock” throughout the trial. The judge followed Massachusetts practice and required defendant to exercise his peremptory challenges personally after consulting with his lawyer. Defendant’s lawyer, noting that sanity was the critical issue in this case, objected to this practice. It further developed that during his closing argument, the prosecutor, in what was later described as unprofessional conduct, highlighted Walker’s personal exercise of the peremptory challenges and utilized them as evidence of Walker’s sanity. Ask yourself about this particular defendant. What do you think? Do you think he knew what he was doing when he stood up there and said, “I am content with this juror? I am content with this juror? I am content with this juror?” Do you think he knew what he was doing then? Walker’s attorney also objected to this pros-ecutorial tactic and requested a specific cautionary instruction which was not granted. Instead, the trial judge informed the jury that the petitioner was required to make the challenges and gave a generalized instruction which noted that either lawyer’s arguments were not to be considered as evidence. Defendant’s counsel likewise objected when the trial judge confined Walker to the prisoner’s dock. Massachusetts practice allows a judge to utilize his discretion as to this practice and, in the present case, the court apparently required its use as it had done in all first degree murder trials. The prisoner’s dock is described as being about four feet square and four feet high, open at the top so that the defendant’s head and shoulders can be seen by the jury. The lawyer may freely go to the box to consult with his client. Finally, Walker’s counsel also objected to various portions of the lengthy jury charge. At the outset of the charge, the trial judge attempted to explain to the jurors why the defendant had taken exceptions to evidentiary rulings during the trial, although the government had not. In explaining that the defendant had the right to except to a ruling in order to preserve the point for appeal, the judge noted that only the defendant had a right to an appeal; this jury instruction was accompanied by cautionary language demanding that the jury’s verdict be free of surmise, conjecture, bias, or hostility. As the Massachusetts Supreme Judicial Court suggested, such mention of the appellate mechanics is unwise. Commonwealth v. Walker, 350 N.E.2d 678, 687 (1976). However, the language and context of this particular instruction evidences an intent to protect the defendant from any jury confusion or hostility that may have been aroused by the frequent taking of exceptions. Such an instruction is not unduly prejudicial and is not an error of constitutional magnitude. See Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). The judge began his discussion of the sanity issue by describing the conclusive effect of the “presumption of sanity” when the defendant fails to make sanity an issue. These comments were merely introductory and, when taken in context, might be considered superfluous, but not unduly prejudicial. Cupp v. Naughten, supra. The judge then emphasized that the jury must “consider and look at the whole evidence regarding the mental condition of the defendant.” In this vein, the judge noted that the expert testimony was valuable evidence but that the medical opinions were not binding upon the jury; as the “sole judges of the credibility and weight of all evidence on the issue of insanity”, the jury “may believe, but is not compelled to believe, any . . testimony or opinion given by an expert”. The jury was also told that “[i]n assessing a defendant’s mental responsibility for crime, the jury should weigh the fact that a great majority of men are sane and the probability that any particular man is sane”. In applying this “presumption of sanity” to the present case, the judge reiterated “it is for the jury to determine whether or not the fact that a great majority of men are sane and the probability that any particular man is sane may be deemed to outweigh the evidential value of any expert testimony that [a person] is insane”. As to the burden of persuasion on this issue, the trial judge repeatedly noted that the Commonwealth had the burden of proving Walker legally sane beyond a reasonable doubt. Aside from the two superfluous instructions already addressed, Walker concedes that the judge’s jury instruction and trial procedures fully complied with traditional Massachusetts practice and procedure. The petitioner, however, argues that the well established Massachusetts “presumption of sanity” relieves the state of its constitutional burden of proving defendant’s sanity beyond a reasonable doubt. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Defendant also asserts that confinement in the “prisoner’s dock” during the trial erodes a defendant’s presumption of innocence. Walker finally argues that the forced personal exercise of his peremptory challenges reflected upon his sanity and violated his fifth amendment privilege against self-incrimination. We find this last contention sufficiently persuasive to require a granting of this habeas corpus petition. The Presumption of Sanity Exactly what constitutes a presumption is a troubling question. In an attempt to describe presumptions, commentators have likened these evidentiary creatures to “bursting bubbles” and to “bats of the law flitting in the twilight”. These analogies may be more colorful than illuminating. Surveying the law of presumption, Dean McCormick noted that the “use of the term presumption is only confusing”. McCormick, Evidence § 346, at 830 (1972). See also Hecht & Pinzler, Rebutting Presumptions: Order out of Chaos, 58 B.U.L.Rev. 527 (1978). Heeding Dean McCormick’s warning, the Massachusetts Supreme Judicial Court, in a recent decision, carefully defined the operation of the “presumption of sanity”. Commonwealth v. Kostka, 370 Mass. 516, 350 N.E.2d 444 (1976). Massachusetts courts have long held that once sanity is an issue the burden of proof rests upon the Commonwealth to prove sanity beyond a reasonable doubt. Commonwealth v. Smith, 357 Mass. 168, 258 N.E.2d 13 (1970). The judicially created “presumption of sanity”, however, aids the Commonwealth in meeting this burden because the jury is always instructed to consider the presumption of sanity when weighing the evidence. Thus, Massachusetts adopts a minority position in that the “presumption of sanity” always remains, carrying “evidential value”, and may never be kept from the jury by introducing evidence of insanity. Commonwealth v. Kostka, supra, at 453. This definition of the “presumption of sanity” allows the Commonwealth to rely upon the presumption “to meet its burden even in a case where there is uncontradicted expert testimony that the defendant was insane at the time he committed the crime in question.” Id. at 451. Instructing the jury to weigh this presumption necessarily lessens the government’s burden of proof. The use of this evidentiary device can be viewed as artificially aiding the government in satisfying its burden of production or as diluting the standard of “beyond a reasonable doubt”. Either way, the standard of proof has been altered by a judicially created mechanism. The United States Supreme Court has often scrutinized presumptions that operate in such an evidentiary fashion. The Supreme Court has set down certain due process guidelines that must be met when a fact is to be presumed by a jury. In Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 .(1969), the Supreme Court held that a statutory presumption was arbitrary and unconstitutional “unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend”. Id. at 36, 89 S.Ct. at 1548. See also Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). In light of the Court’s pronouncement in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970), that the due process clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime . . the Supreme Court has suggested that a presumption that supplies “[a] fact necessary to constitute the crime” must meet the reasonable doubt standard. Thus, Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), set forth a dual standard: “if a statutory inference submitted to the jury as sufficient to support conviction satisfies the reasonable-doubt standard (that is, the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt) as well as the more-likely-than-not standard, then it clearly accords with due process.” Id. at 843, 93 S.Ct. at 2361. Despite the evidentiary effect of the Massachusetts “presumption of sanity” and the Supreme Court’s careful review of presumptions in criminal cases, the particular presumption in this case need not meet the standards set forth in such cases as Turner and Barnes. The due process clause only requires that a state prove the essential elements of the crime charged. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). If the presumption concerns a fact ancillary to the crime, such as an affirmative defense, there is no constitutional reason to demand that the logic giving rise to the presumption meet a certain due process or burden-of-proof standard. The Supreme Court underscored this point in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). The Court emphasized that the earlier holding of Mullaney v. Wilbur, supra, still stood: Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense. This is true even though the State’s practice, as in Maine, had been traditionally to the contrary. Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause. Patterson v. New York, 432 U.S. at 215, 97 S.Ct. at 2330. In Patterson, however, the Court upheld a New York law designating insanity as an affirmative defense. The Court reasoned that sanity was not an essential ingredient of murder; a person could intentionally kill another person, “an act which it is not disputed the State may constitutionally criminalize and punish”, without being completely sane. Id. at 209, 97 S.Ct. at 2326. Nor had the New York legislature deemed sanity so important to make it an ingredient that must be proven by the government. Instead, once the fundamental ingredients of the crime exist, the legislature may choose “to recognize a factor [i. e., insanity] that mitigates the degree of criminality or punishment” and place the burden of raising and proving this mitigating factor upon the defendant. Id. Thus, the government’s burden of proof and any presumptions that may affect that burden are only constitutionally relevant if they relate to an indispensable “ingredient” of the crime or an ancillary ingredient that the legislature has directed the government to prove. Patterson holds that sanity is not an essential, constitutional ingredient of the crime of murder. Nor has the Massachusetts legislature deemed sanity sufficiently important to statutorily designate it as an element of murder to be proven by the government beyond a reasonable doubt. In fact, the Massachusetts Supreme Judicial Court, in an opinion foreshadowing the reasoning of Patterson, held that sanity is not an element of the Massachusetts crime of murder. Commonwealth v. Kostka, supra, at 455. The Massachusetts court stated: “We do not believe that a defendant’s mental disease or defect . . . bears any ‘necessary relationship to the existence or nonexistence of the required mental elements of the crime [charged].’ Mullaney v. Wilbur, 421 U.S. 684, 706, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (Rehnquist, J., concurring).” Id. at 455 n.15. Because neither the federal constitution nor Massachusetts law make sanity an ingredient of the crime of murder, the burden of proof on the issue of sanity and the effect that the Massachur setts “presumption of sanity” has on that burden do not raise constitutional questions. We must agree with the conclusion of the Massachusetts Supreme Judicial Court: If sanity were an “element” of the crime charged, then recent Supreme Court cases on the use of presumptions and inferences to establish an element of the offense would be apposite to our inquiry. Because sanity is not an element of the crime charged, we do not think that cases like Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); and Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), which concerned the use of statutory and common law inferences to establish an element of the crime charged, set forth the appropriate test. Id. at 455-56. See also Commonwealth v. Walker, supra at 700. The Prisoner Dock Petitioner claims that his confinement to the prisoner dock unconstitutionally eroded his presumption of innocence in the eyes of the jury. Confinement in the prisoner dock is analogized to the wearing of prison garb during trial, a practice held unconstitutional in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126, reh. den., 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d 1194 (1976). Petitioner argues that confinement in the prisoner dock served as a “constant reminder of the accused’s condition [that] may affect a juror’s judgment . . [and] is so likely to be a continuing influence throughout the trial that ... an unacceptable risk is presented of impermissible factors coming into play.” Id. at 504-05, 96 S.Ct. at 1693. The practice of isolating the accused in a four foot high box very well may affect a juror’s objectivity. Confinement in a prisoner dock focuses attention on the accused and may create the impression that he is somehow different or dangerous. By treating the accused in this distinctive manner, a juror may be influenced throughout the trial. The impression created may well erode the presumption of innocence that every person is to enjoy. Of course, “[t]he actual impact of a particular practice on the judgment of jurors cannot always be fully determined. But this Court has left no doubt that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny.” Id. at 504, 96 S.Ct. at 1693. We see no state policy sufficiently compelling or essential to justify risking a dilution in the accused’s presumption of innocence. The Massachusetts courts and the federal district court found that this traditional practice of prisoner dock confinement served such state purposes as: identification of the accused person to the jury; minimizing the danger of harm to the public, court, and jury; and encouraging maintenance of courtroom order. From the record in this case, we cannot determine whether the practice of the prisoner dock realistically promoted the interests of safety or courtroom order. In any event, the use of a dock is hardly the most advanced or least restrictive means of insuring courtroom order and protection. This is not a case where the prisoner exhibited any dangerous and disruptive propensities at trial. See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Further, argument that the dock helped identify the accused is hardly persuasive. Prison clothing served identification purposes in Estelle v. Williams, supra ; yet, the Supreme Court found this to provide no justification for the practice. The defendant can be easily identified without using the dock. Thus, even if the state’s purposes are rational on an abstract level, the use of a prisoner dock may not further those interests significantly. We must agree with District Judge Caf-frey in terming the prisoner’s dock “an anachronism in a modern criminal trial which could have been abandoned years ago”. Walker v. Butterworth, 457 F.Supp. 1233 at 1239 (D.Mass.1978). The right to a fair trial is simply too delicate and valuable a right to be impeded by an anachronistic practice. Because confinement in the prisoner dock is unnecessary to accomplish any important state interest and may well dilute the presumption of innocence, the Massachusetts prisoner dock must be considered, as a general matter, to be an unconstitutional practice. The record is unclear as to whether this unconstitutional practice constituted harmful error in this case. Determining harmless error in such a case is always difficult because “[t]he actual impact of a particular practice on the judgment of jurors cannot always be fully determined.” Estelle v. Williams, 425 U.S. at 504, 96 S.Ct. at 1693. It is true that the record reveals no evidence of prejudicial references to the defendant’s confinement; yet, this is no guarantee that the jurors failed to be influenced by the prisoner dock. In such a situation, the objective record may often prove unenlightening, but a court should be ready to vindicate constitutional rights whenever an “unacceptable risk” is presented. Id. at 505, 96 S.Ct. 1691. Because we find other grounds upon which to grant this petition, however, we need not decide, from the rather bare record before us, whether the use of the prisoner dock produced a likelihood of harmful error in this case. Personal Exercise of Peremptory Challenges The trial judge, in keeping with traditional Massachusetts practice in a murder case, required Walker to personally exercise his peremptory challenges. Walker was allowed to consult with his attorney about each prospective juror but he was required, in the presence of each individual juror, to announce his decision personally. After the prosecutor emphasized petitioner’s ability to make such peremptory challenges personally, the trial judge’s charge did inform the jury that such personal challenges were required. Both the Massachusetts Supreme Judicial Court and the federal district court criticized the prosecutor’s conduct as ill advised but rejected petitioner’s contention that the required personal exercise of his challenges violated his privilege against self-incrimination. These courts reasoned that the petitioner’s peremptory challenges may have been probative as to his competency at the time of trial; but this forced communication was found to have little if any relation to the central issue of petitioner’s sanity at the time of the offense. The federal district court also analogized petitioner’s conduct to physical actions which possessed no testimonial or communicative content. We cannot accept this reasoning. In a case where sanity is the sole issue, the court’s requirement that the petitioner personally exercise his peremptory challenges and the prosecution’s subsequent emphasis on the conscious and knowing exercise of those challenges combined to violate petitioner’s constitutional privilege against self-incrimination. There is no dispute that Walker was required, against his will and over his attorney’s objection, to announce his objection or contentment as to each individual juror in front of that juror. Of course, the fact that the accused is forced to utter words does not, in itself, constitute self-incrimination. Recordings of an accused’s voice are permissible if they are “used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said”. United States v. Dionisio, 410 U.S. 1, 7, 93 S.Ct. 764, 768, 35 L.Ed.2d 67 (1973). Likewise, requiring the uttering of words in a lineup, for purposes of identification rather than as a way of eliciting testimony, does not violate the privilege against self-incrimination. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Nor has the fifth amendment ever prohibited the government from requiring the accused to supply some form of incriminating evidence. In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court allowed the government to introduce an incriminating blood sample involuntarily taken from the defendant. The Supreme Court noted that a distinction had emerged in the law of self-incrimination: “the privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.” Id. at 764, 86 S.Ct. at 1832. The critical question, for the purposes of the self-incrimination clause, is whether the forced utterances had communicative content. One can safely start with the premise that Walker’s statements of objection or satisfaction were not typical testimony in the sense of narrating an occurrence or confessing guilt. The concept of verbal communication, however, is not limited to narration or direct confessions of guilt. Rather, verbal communication is the use of words to impart or transmit information. Walker’s comments constitute such verbal communication. Walker obviously was communicating his satisfaction with the individual jurors. More importantly, these forced words revealed Walker’s mental process of evaluating each juror. In exercising these challenges, Walker was transmitting, against his will, an important message to the jury. Roughly translated, this message would read: “the accused can rationally and sanely communicate with his lawyer and make important trial decisions.” Each juror was not measuring Walker’s words for their “physical properties”, United States v. Dionisio, supra, and the words were not being used for their identifying characteristics, United States v. Wade, supra. Taken in isolation, the words “I am content with this juror” mean little. But, in the context of an insanity defense, the words necessarily take on an additional meaning and relate important and incriminating information. The content of the words and the mental processes that they necessarily embodied and revealed, conveyed an inescapable message to the jury. The message conveyed was directly relevant to the sole issue at trial and can be fairly defined as communication for the purposes of the privilege against self-incrimination. Any doubts as to the communicative or testimonial nature of the peremptory challenges were resolved by the prosecutor’s closing argument. The prosecutor had no doubt about the important statement that Walker’s words conveyed. In highlighting the accused’s personal exercise of the peremptory challenges, the prosecutor explicitly repeated the words spoken by Walker and attempted to utilize them as testimonial evidence bearing upon Walker’s sanity. Requiring Walker to speak and seizing upon his words as constituting evidence against him, threatened the central values of the privilege against self-incrimination: [T]he constitutional foundation underlying the privilege is the respect a government — state or federal — must accord to the dignity and integrity of its citizens. To maintain a “fair state-individual balance,” to require the government “to shoulder the entire load,” 8 Wigmore, Evidence 317 (McNaughton rev. 1961), to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. Chambers v. Florida, 309 U.S. 227, 235-238, 60 S.Ct. 472, 476-477, 84 L.Ed. 716 (1940). In sum, the privilege is fulfilled only when the person is guaranteed the right “to remain silent unless he chooses to speak in the unfettered exercise of his own will.” Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694 (1966). Forcing one to exercise his peremptory challenges personally is hardly comparable to the practices of the Star Chamber. In the context of an insanity defense, however, the uttering of peremptory challenges reveals damaging inferences. In capitalizing upon Walker’s utterances, the prosecutor was not producing evidence by his own independent labors but relying upon the simple expedient of compelling testimony from the accused. Walker simply was not provided the right “to remain silent unless he chooses to speak in the unfettered exercise of his own will.” Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). The present case is a far cry from cases holding that no fifth amendment violation exists when a court orders psychiatric examination of defendants pleading insanity. The legal arguments and theoretical justifications that support compelled psychiatric examination are completely inapplicable to this case. In a psychiatric examination, a neutral expert analyzes the defendant’s statements, dreams and actions; the psychiatrist then correlates this information to medical postulates and issues a report. Although such an examination often requires compelled communication from the defendant, the courts find the resulting psychiatric analysis sufficiently neutral and buffered by expertise to equate it with the medical examination of physical characteristics upheld in Schmerber, supra. See, e. g., United States v. Baird, 414 F.2d 700 (2d Cir. 1969). These courts recognize that expert examination of the defendant who pleads insanity is one of the few methods of obtaining scientific, reliable evidence on the issue. See, e. g., United States v. Bohle, 445 F.2d 54, 66 (7th Cir. 1971); United States v. Handy, 454 F.2d 885 (5th Cir. 1971). Even though compelled communication is involved, the psychiatric examinations are constitutionally permissible because the “great importance of expert testimony on the issue of insanity” outweighs “the minimal risk to the Fifth Amendment privilege.” United States v. Bohle, 445 F.2d at 66. Compared to the rationale supporting compelled psychiatric examinations, this case presents almost the reverse situation. The prosecutor decided not to introduce any expert testimony but instead relied, in part, on the defendant’s personal exercise of peremptory challenges. The forced statements in this case went directly to the jury; the lack of any expert evaluation or guidance made these statements extremely unreliable and prejudicial. Indeed, because these comments were compelled, they are not evidence of any rational decisional process; yet, to each juror the appearance of the defendant uttering these words and apparently making important trial decisions was both damaging and misleading. The prosecutor’s comments exacerbated the situation. This series of events threatened one of the key purposes behind the self-incrimination clause: protection against forced, unreliable evidence. Murphy v. Waterfront Comm’n, 378 U.S. 52, 55, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). This is not a situation where there is an important interest to be served by permitting reliable and expert evidence. In fact, no rational purpose supports the archaic practice of compelling a defendant to personally exercise peremptory challenges.' When the prosecution spurns expert testimony and relies upon compelled statements which transmit an extremely unreliable message, there is a substantial risk to the fifth amendment privilege. In light of this risk and the lack of any countervailing purpose, the constitutional balance is struck differently than in such cases as Bohle, supra. When sanity is an issue, the practice of requiring and allowing comment on the personal exercise of peremptory challenges unconstitutionally infringes the accused’s privilege against self-incrimination. This constitutional violation cannot be overlooked by asserting that Walker’s utterances were only probative of his competency at the time of trial. Almost inevitably, evidence of defendant’s current mental abilities carried inferential weight as to his past mental condition. The actual impact of the defendant’s utterances on the jury cannot be measured. The prosecutor certainly recognized that demonstrating sanity at the time of trial might well persuade the jury of the accused’s sanity at the time of the crime. The personal exercise of the peremptory challenges communicated damaging information to the jury. Even so, the Commonwealth argues, the accused’s expressions or actions in the courtroom could have communicated the same information. Maybe so, but this argument misses the point. Unlike expressions or actions, the challenges were compelled. The defendant could not control the words or conceal the thought process that they revealed... This compulsion, for the purposestef the privilege against self-incrimination, makes all the difference. We must conclude that ¡the compelled utterances conveyed important and relevant information to the jury./ The prosecutor insured that the utterances conveyed the message of the accused’s sanity; the sanity of the accused was the sole issue at trial. In the context of this case, such a combination of occurrences violated Walker’s privilege against self-incrimination and denied him a fair trial. The trial judge’s well intentioned, but highly generalized, charge could not adequately remedy the constitutional violation. Recognizing that the privilege against self-incrimination is an essential mainstay of our adversary system and a hallmark of our society, we reverse. The writ of habeas corpus shall issue unless the Commonwealth makes arrangements for a new trial within ninety days. . The petitioner renewed all his present claims at each appellate stage. Both sides agree that exhaustion is not an issue in this case. . The “presumption of sanity” does place the burden of production, or burden of “going forward” with the evidence, upon the defendant. Thus, the defendant must raise the issue of insanity by introducing some supporting evidence. If defendant fails to raise the issue, he is conclusively presumed sane. The defendant in this case does not challenge this particular aspect of the presumption. Defendant contests the effect that the presumption has on the government’s burden of persuasion once the issue of sanity is properly raised. . See J. Thayer, A Preliminary Treatise on Evidence at Common Law, 313-52 (1898). . 9 Wigmore, Evidence § 2491. See also Boh-len, The Effect of Rebuttable Presumptions of Law Upon the Burden of Proof, 68 U.Pa.L.Rev. 307, 314 (1920) where presumptions are described: “Like Maeterlinck’s male bee, having functioned they disappear.” Judges have also discussed, and sometimes confused, the law of presumptions. Referring to the law of presumptions, Learned Hand complained: “Judges have mixed it up until nobody can tell what on earth it means. . . 18 ALI Proceedings 217-18 (1941). . In dismissing Walker’s appeal the Massachusetts Supreme Judicial Court stressed that the “presumption” itself was not evidence, Commonwealth v. Walker, 350 N.E.2d 678, 700 (1976); rather, the jury was to “weigh the facts underlying the presumption and the inferences that may follow from [the] facts . . . Commonwealth v. Kostka, 350 N.E.2d 444, 454 (1976). Whether the “presumption of sanity” is an inference or a presumption or a creature possessing “characteristics of both presumptions and inferences”, id. at 454, makes no constitutional difference. The Supreme Court has chosen to scrutinize presumptions and inferences identically if they operate to shift the burden of production and are to be given evi-dentiary weight by a jury in criminal cases. See Barnes v. United States, 412 U.S. 837, 841-45, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). ' The Barnes case concerned the traditional common law inference that knowledge necessary for conviction may be drawn from the unexplained possession of recently stolen goods. As with the statutory presumptions involved in Leary and Turner, this “inference” operated to shift the burden of producing rebutting evidence onto the defendant. All three of the above cases are similar to the present case in that the jury was clearly instructed that they were permitted, but not required to find the presumed fact. The Supreme Court made no distinction between the Barnes common law “inference” and a statutory presumption. In fact, the Court appeared to use the two terms interchangeably. . The requirement that the government prove sanity beyond a reasonable doubt is a judicial doctrine. See e. g., Commonwealth v. Johnson, 188 Mass. 382, 74 N.E. 939 (1905). This standard must be considered in context with another long-established judicial doctrine, the “presumption of sanity”. Even if one finds that the presumption reduces the government’s burden of proof on the issue of sanity to something less than “beyond a reasonable doubt”, the burden of proof is strictly a judicially created standard in Massachusetts. This is not a case where the legislature has balanced competing concerns and designated sanity as an element (or ingredient) of the crime, only to have a state court dilute that standard by creating an evidentiary presumption. Patterson primarily was concerned with allowing the legislative branch sufficient leeway to define mitigating factors that affect criminality. 432 U.S. at 210, 97 S.Ct. 2319. That decision does not authorize judicial modification of a legislature’s evidentiary standard. Once the legislature designates a fact to be proven “beyond a reasonable doubt” by the government, an expectation is created and the fact must be proven in accord with the legislative standard and due process. 432 U.S. at 215, 97 S.Ct. 2319. When the legislature is silent, however, traditional judicial evidentiary standards are controlling. . Judge Bownes would find reversible constitutional error in the use of the prisoner dock. Judge Coffin shares the writer’s concerns about the serious constitutional questions raised by the use of the prisoner dock in this case but would reserve decision on the issue until such time as it is necessary for the disposition of an appeal. Accordingly, Judge Coffin does not join in the portion of the opinion dealing with the prisoner’s dock. . As both courts noted, the Massachusetts Supreme Judicial Court had used similar reasoning in rejecting a nearly identical self-incrimination claim at a much earlier date. Commonwealth v. Millen, 289 Mass. 441, 194 N.E. 463 cert. denied, 295 U.S. 765, 55 S.Ct. 924, 79 L.Ed. 1706 (1935). The Millen case was decided long before Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) applied fifth amendment principles to the states. Thus, Millen should carry little, if any, precedential weight in a claim based upon the federal constitution. . Of course, this transmitted message might be completely erroneous. Forcing one to exercise his peremptory challenges personally may well produce a dangerously incorrect impression of sanity precisely because the person is not communicating with entire independence and under his own free will. The likelihood that the message transmitted may be erroneous argues for applying the protections of the fifth amendment. Prohibiting the inherent unreliability of forced communication is an important policy reflected in the privilege against self-incrimination. See Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S.Ct. 1594, 1597, 12 L.Ed.2d 678 (1964) (the privilege reflects “our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the innocent.’ ”). . In this case we are concerned with how the prosecutor’s argument reinforced and aggravated the court’s infringement upon the accused’s privilege against self-incrimination. We do not find Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) directly relevant. Donnelly concerns the degree of prosecutorial misconduct necessary to constitute a violation of general due process protections. Because we find that a specific constitutional guarantee was implicated in this case, the standard set forth in Donnelly is not applicable. . Unlike a guilty plea, where personal communication is helpful to show full comprehension and voluntariness, the exercising of peremptory challenges does not necessitate complete comprehension by the accused or his personal participation. Question: What is the nature of the proceeding in the court of appeals for this case? A. decided by panel for first time (no indication of re-hearing or remand) B. decided by panel after re-hearing (second time this case has been heard by this same panel) C. decided by panel after remand from Supreme Court D. decided by court en banc, after single panel decision E. decided by court en banc, after multiple panel decisions F. decided by court en banc, no prior panel decisions G. decided by panel after remand to lower court H. other I. not ascertained Answer:

songer_casetyp1_7-3-2

H

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 - torts". L. E. WHITHAM CONSTR. CO. v. REMER. No. 1535. Circuit Court of Appeals, Tenth Circuit. Dec. 11, 1937. Robert D. Hudson, of Tulsa, Okl. (W. E. Hudson, of Tulsa, Okl., on the brief), for appellant. John W. Tyree, of Lawton, Okl. (S. R. Harper, of Lawton, Okl., on the brief), for appellee. Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges. PHILLIPS, Circuit'Judge. Sam Remer, administrator of the estate of Sam Remer, deceased, brought this action against the L. E. Whitham Construction Company, to recover damages for the alleged wrongful death of Sam Remer, deceased. The evidence, viewed in a light most favorable to the plaintiff established these facts: The Construction Company was engaged in building a road up M.t. Scott in the National Forest Reserve, Comanche County, Oklahoma. The location of the road was through practically solid rock covered with boulders and it was necessary to employ dynamite as an explosive agent to break up the rock. Holes were drilled in the rock with a jackhammer, a device operated with compressed air. After the holes were drilled the charges of dynamite were placed therein and a detonator was attached to each charge. Two fine wires extended from the detonator out through the top of the hole. These wires in turn were connected with wires attached to a blasting machine. The circuit was then closed and the current from the blasting machine set off the detonator which in turn caused the dynamite to explode. Charges in groups of 15 to 40 were connected with the blasting machine and exploded simultaneously. Due to crossing of the wires or other causes there would be times when some of the charges would not explode. Plaintiff’s intestate had been employed by the Construction Company on other work prior to September 4, 1935. On that day he went to work at noon as a jackhammer operator. He had had previous experience as a jackhammer operator but had not operated a hammer at or near the place of the accident. He completed the drilling of an unfinished hole on the south side of the road and then moved his jackhammer over to a ledge of rock that formed a high point on the north side of the road. He first blew the trash off the place where he proposed to drill, with air from the hammer. After he had cleaned off a place approximately three feet in diameter, he commenced the drilling of a second hole. In the drilling of that hole the drill encountered an unexploded charge of dynamite which exploded causing injuries to him from which he died. Prior to the accident the south side of the road had been cleaned off so that the drillers might be able to observe any holes containing unexploded charges. Tlie surface where the accident occurred had not been cleaned off. A. C. Doyle, foreman for the Construction Company, had reason to believe there was an unexploded charge of dynamite in close proximity to the place where the accident occurred. On the evening of September 3, 1935, Doyle and four other employees of the Construction Company made a careful search for that unexploded charge. They searched at and about the place where the accident occurred, but failed to discover it. It had not been discovered when plaintiff’s intestate began working on the following day. Doyle instructed plaintiff’s intestate to drill holes at the high places in the section of the road where he suspected this unexploded charge to exist, but wholly failed to warn him with respect to such unexploded charge. He did warn the jackhammer operator who worked during the forenoon of the day of the accident concerning such charge. The petition alleged that the “explosion was caused by a charge of dynamite * * * which had been carelessly and negligently placed and allowed to remain at the point where * * * deceased was ordered to drill by the * * * agents and employees of * * * defendant; that * * * deceased had no knowledge of the presence of the * * * dynamite * * * and was unaware of the danger of drilling at that point and that no signals marked the place of danger.” The answer denied negligence and alleged assumed risk and contributory negligence. At th.e close of the evidence the Construction Company moved for a directed verdict in its favor. The motion was denied. There was a verdict and judgment for the plaintiff. The Construction Company has appealed. The proof showed that the Construction Company used modern equipment, followed standard methods, made regular inspections, and exercised care to discover unexploded charges, and that no method was known to accomplish the construction work other than by the use of dynamite or high explosives. On the other hand, while the evidence was in conflict as to the existence of the unexploded charge of dynamite in the immediate vicinity where plaintiff’s intestate was instructed to drill, knowledge thereof ,on the part of Doyle, and failure of the Construction Company to warn plaintiff’s intestate with respect to that particular unexploded charge, there was substantial evidence which warranted the jury in finding that such unexploded charge existed, that the Construction Company had knowledge thereof, that plaintiff’s intestate had no knowledge thereof, and that the Construction Company wholly failed to warn plaintiff’s intestate of the danger of such unexploded charge. The master is under a nondelegable duty to warn and instruct his servant as to defects and dangers of which he knows or ought in the exercise of reasonable care and diligence to know, and of which the servant has no knowledge. It follows that the court properly'denied the motion for a directed verdict. The Construction Company by proper exception challenged the correctness of the following instruction given to the .jury: “In .this connection you are instructed that if the defendant drilled Or caused to be drilled numerous holes, and these holes were filled with dynamite, and the dynamite in any of these holes failed to explode, and therefore, it remained in the ground as a source of future danger, that it was the duty of the defendant to locate those holes, and to advise those who were working in the vicinity pf those holes of the danger.” • The Construction Company was not an insurer. Its duty was to exercise reasonable or ordinary care for the safety of its employees. Ordinary care is such care as ought reasonably to be expected of an ordinarily prudent person in the same situation as that of the individual whose conduct is in question in the particular case. The duty is that of exercising reasonable care, whether-the business is comparatively safe or is extremely dangerous, but the acts of care and precaution required by ordinary prudence are to be determined as matters of fact from a consideration of the dangers incident to the agency employed as well as from other circumstances and conditions, and the precautions required increase with the known dangers. ’The law cast upon the Construction Company the duty of exercising reasonable care in searching for unexploded charges of dynamite and protecting its employees against the dangers thereof, but it did not cast upon the Construction Company the absolute duty of locating such charges. The Construction Company also challenged by proper exception the correctness of the following instruction: “You are instructed that dynamite is a dangerous instrumentality, and must at all times be used with the highest degree of care. The fact that the use of dynamite is practically indispensable for the accomplishment of certain purposes is not sufficient to justify its use if it cannot be used without great danger to life and limb, and one so using dynamite assumes the risk incident to such use.” The substance of the instruction is that even though the use of dynamite was indispensable in the prosecution of the work, its use • constituted negligence if it could not be used without great danger to the life and limb of the employees. The language of the Supreme Court in Mather v. Rillston, 156 U.S. 391, 398, 399, 15 S.Ct. 464, 467, 39 L.Ed. 464, is apposite: “All occupations producing articles or works of necessity, utility, or convenience may undoubtedly be carried on, and competent persons, familiar with the .business and having sufficient skill therein, may properly be employed upon them; but in such cases, where the occupation is attended with danger to life, body, or limb, it is incumbent on the promoters thereof and the employers of others thereon to take all reasonable and needed precautions to secure safety to the persons engaged in their prosecution, and for any negligence in this respect, from which injury follows to the persons engaged, the promoters or the employers may be held responsible and mulcted to the extent of the injury inflicted. The explosive nature of the materials used in this case, and the constant danger of their explosion from heat or collision, as already explained, were well known to the employers, and were continuing admonitions to them to take every precaution to guard against explosions. Occupations, however important, which cannot be conducted without necessary danger to life, body, or limb, should not be prosecuted at all without all reasonable precautions against such dangers afforded by science. The necessary danger attending them should operate as a prohibition to their pursuit without such safeguards. Indeed, we think it may be laid down as a legal principle that in all occupations which are attended with great and unusual danger there must be used all appliances readily attainable known to science for the prevention of accidents, and that the neglect to provide such readily attainable appliances will be regarded as proof of culpable negligence.” While the law, because of the dangers inherent in the use of dynamite, cast upon the Construction Company the obligation to use all appliances readily attainable known to science for the prevention of accidents, to employ all reasonable precautions against the danger incident to the use of dynamite, afforded by science, and to use all reasonable and needed precautions for the safety of the employees engaged in the work, the instruction went further than that. It in effect made the Construction Company an insurer of its employees and in that respect it was inaccurate and prejudicial. Because of the errors in the instructions to the jury, the judgment is reversed and the cause remanded with instructions to grant the Construction Company a new trial. Reversed and remanded. See Champlin Refining Company v. Thomas, 10 Cir., 93 F.2d 133; Summers v. Denver Tramway Corp., 10 Cir., 43 F.2d 286; Indemnity Ins. Co. v. Atchison, T. & S. F. Ry. Co., 9 Cir., 85 F.2d 438, 439; Harlan v. Bryant, 7 Cir., 87 F.2d 170, 172; Bonk v. Welch, 7 Cir., 78 F.2d 478, 479; Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720. Alpha Portland Cement Co. v. Curzi, 2 Cir., 211 F. 580, 586; Pennsylvania Pulverizing Co. v. Butler, 3 Cir., 61 F.2d 311, 316; Matter v. Rillston, 156 U.S. 391, 399, 15 S.Ct. 464, 39 L.Ed. 464; Thurlow v. Failing, 133 Old. 277, 272 P. 868, 372. McNeal v. Otto, 10 Cir., 91 F.2d 289; Grammer v. Mid-Continent Petroleum Corp., 10 Cir., 71 F.2d 38, 40; Grant Storage Battery Co. v. De Lay, 8 Cir., 87 F.2d 726, 731; Chicago & N. W. Ry. Co. v. Payne, 8 Cir., 8 F.2d 332, 334; Great Northern Ry. Co. v. Johnson, 8 Cir., 207 F. 521, 524; H. D. Williams Cooperage Co. v. Headrick, 8 Cir., 159 F. 680, 682; Aqua System v. Kodakoski, 5 Cir., 88 F.2d 395, 398; Baltimore & O. S. W. R. Co. v. Carroll, 280 U.S. 491, 496, 50 S.Ct. 182, 183, 74 L.Ed. 566; Wabash R. Co. v. McDaniels, 107 U.S. 454, 459, 460, 2 S.Ct. 932, 27 L.Ed. 605. Wabash R. Co. v. McDaniels, supra; Hewlett v. Schadel, 4 Cir., 68 F.2d 502, 505, 91 A.L.R. 743; City of Decatur v. Eady, 186 Ind. 205, 115 N.E. 577, 579, L.R.A.1917E, 242; Reynolds v. Security Trust Co., 246 Mich. 670, 225 N.W. 575Gulf, M. & N. R. Co. v. Kelly, Miss., 171 So. 883, 886; Schaum v. Southwestern Bell Tel. Co., 336 Mo. 228, 78 S.W.2d 439, 442; Eorbis v. Hessing, 328 Mo. 699, 41 S.W.2d 378, 380; Clinton & O. W. Ry. Co. v. Dunlap, 75 Okl. 64, 179 P. 749, 751, 181 P. 312; Ponca City Ice Co. v. Robertson, 67 Okl. 86, 169 P. 1111, 1112; Wychgel v. States S. S. Co., 135 Or. 475, 296 P. 863, 868; Texas & Pacific Ry. Co. v. Barrett, 166 U.S. 617, 619, 17 S.Ct. 707, 41 L.Ed. 1136; Grand Trunk R. Co. v. Richardson, 91 U.S. 454, 469, 470, 23 L.Ed. 356; Leach v. St. Louis-San Francisco Ry. Co., 6 Cir., 48 F.2d 722, 724; Waddell v. A. Guthrie & Co., 10 Cir., 45 F.2d 977, 979. Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"? A. motor vehicle B. airplane C. product liability D. federal employer liability; injuries to dockworkers and longshoremen E. other government tort liability F. workers compensation G. medical malpractice H. other personal injury I. fraud J. other property damage K. other torts Answer:

songer_usc1

0

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. Roxie Owen RUFF, et al., Plaintiffs-Appellants, v. BOSSIER MEDICAL CENTER, et al., Defendants, Dr. Miguel Mora, Defendant-Appellee. No. 90-4800. United States Court of Appeals, Fifth Circuit. Jan. 31, 1992. Edmund M. Thomas, Shreveport, La., Richard J. Voelker, Baton Rouge, La., for plaintiffs-appellants. Lawrence W. Pettiette, Jr., Blanchard, Walker, O’Quinn & Roberts, Shreveport, La., for defendant-appellee. Before CLARK, Chief Judge, JONES, Circuit Judge and PARKER , District Judge. District Judge of the Eastern District of Texas, sitting by designation. This opinion was concurred in by Chief Judge Clark prior to his resignation from the Court on January 15, 1992. ROBERT M. PARKER, District Judge: A medical malpractice claim was brought against Dr. Miguel Mora, appellee, another doctor and Bossier Medical Center in a Louisiana state court. Dr. Mora filed a third party demand against the Veterans Administration (V.A.), an agency of the federal government which owns and operates the V.A. Medical Center in Shreveport, Louisiana, seeking contribution and indemnification. The V.A. removed the suit to federal court. The Louisiana patient compensation fund was later added as a defendant. Prior to trial the Plaintiffs settled with the other doctor, Bossier Medical Center, and the Louisiana Patient Compensation fund. The Plaintiffs, the family and estate of the late Walter Don Ruff, were suing for damages allegedly caused by the defendants in failing to timely diagnose and treat the decedent’s heart attack. Plaintiffs claim that the negligence of the defendants either caused Mr. Ruff’s death or resulted in the loss of a chance of survival. After trial, the Court entered an order dismissing Plaintiff’s claim against Dr. Mora and dismissing Dr. Mora’s claim against the V.A. The Court found that: (1) Dr. Mora had been negligent in his treatment of Mr. Ruff, (2) Plaintiffs failed to prove that Dr. Mora’s negligence caused Mr. Ruff’s death, and (3) Plaintiffs failed to carry their burden of proof showing Mr. Ruff’s chances of survival “... would more probably than not have been increased to some reasonable degree had Dr. Mora diagnosed his heart problems on May 27, 1984.” Plaintiffs appeal from the court’s order, bringing three points of error. We AFFIRM. FACTS On May 26,1984, Walter D. Ruff went to the emergency room of the Veterans Administration Hospital complaining of fever, constipation and existing symptoms of anorexia. He was diagnosed as having viral gastroenteritis and was released with direction to drink fluids and take aspirin. On May 27, 1984, Mr. Ruff went to the emergency room of Bossier City Medical Center complaining of chest pain, shortness of breath, coldness and numbness of his left arm over a two month period and inability to eat the preceding three days, Dr. Mora, M.D., the physician on duty at Bossier City Medical Center, examined Mr. Ruff and conducted routine tests. Dr. Mora was a native of Spain and may have had some difficulty communicating with the decedent. In spite of the symptoms Mr. Ruff complained of, Dr. Mora did not diagnose or rule out cardiac problems. Instead he diagnosed Mr. Ruff as having poorly controlled diabetes and severe osteoarthritis of the spine. Dr. Mora gave him a pain medication and sent him home after consulting with Dr. Forbing, his regular physician, and instructing Mr. Ruff to see Dr. Forb-ing the next morning. On May 28,1984, Mr. Ruff saw Dr. Forb-ing in his office. Dr. Forbing gave him medication for diabetes and blood pressure and sent him home. On May 29, 1984, Mr. Ruff was admitted to the V.A. Hospital emergency room and was diagnosed as having suffered a heart attack approximately 72 hours prior to this admission. He was stabilized initially, but died on June 1, 1984. STANDARD OF REVIEW In reviewing the judgment of the trial court, where the action was tried to the court without a jury, the Court of Appeals may not set aside the findings of fact made by the court unless they are clearly erroneous. Fed.R.Civ.P. 52(a). A finding is clearly erroneous when, although there is evidence to support it, the appellate court is convinced on a review of the entire record, that a mistake has been made. United States v. Oregon State Medical Soc., 348 U.S. 326, 72 S.Ct. 690, 96 L.Ed. 978 (1952). However, conclusions of law made by the district court are not binding on the appellate court and the latter is free to substitute its judgment on the law for that of the court below. Horn v. C.L. Osborn Contracting Co., 591 F.2d 318 (5th Cir.1979). APPELLEE’S DUTY TO DECEDENT Appellants allege that the trial court erred in ascribing to the defendant a duty less stringent than the standard of care required of physicians by La.R.S. 9:2794, which provides: [T]he plaintiff shall have the burden of proving: (1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, or chiropractic physicians within the involved medical specialty. Plaintiffs characterize Dr. Mora’s duty under this statute as an obligation to “rule out” the possibility that the cause of Mr. Ruff’s signs and symptoms was a heart attack. Under the Court’s interpretation of the facts, Dr. Mora had a duty to take adequate steps to be certain that he fully understood Mr. Ruff’s complaints. We find that the Court's characterization of the duty was correct. The facts presented do not indicate that the doctor failed to make a proper diagnosis or differential diagnosis of the symptoms of which he was aware. Rather, the evidence shows and the Court found that Dr. Mora failed to understand the nature of Mr. Ruff’s complaints because of the doctor’s limited ability to understand English. However, even if the court’s characterization of the duty imposed a higher standard on Plaintiff than was appropriate, the Plaintiff has presented no grounds for reversal of the Court’s order because the Court found for the Plaintiff on the issue of breach of duty. LOUISIANA DOCTRINE OF LOST CHANCE The Plaintiffs complain that the District Court imposed an incorrect burden of proof under the Louisiana Doctrine of Lost Chance. The Court found that Plaintiffs did not carry their burden of proving by a preponderance of the evidence that the patient would have had at least a better chance of survival if the negligence had not occurred. The Doctrine of Lost Chance is a principal which has evolved in the common law of Louisiana over a period of many years. A defendant’s conduct must increase the risk of a patient’s harm to the extent of being a substantial factor in causing the result, but need not be the only cause. Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La.1986). It is not necessary to prove that a patient would have survived if proper treatment had been given, but only that there would have been a chance of survival. Hastings, supra, citing Kellenberg v. Beth Israel Hospital, 357 N.Y.S.2d 508, 45 A.D.2d 177 (1974). The “substantial factor” in the cause of death language was reiterated recently in Tabor v. Doctors Memorial Hospital, 563 So.2d 233 (La.1990). In an action brought by the family of a deceased heart attack victim against a hospital and emergency room physician, the Louisiana Supreme Court articulated the test in another way: The question is whether the patient’s chances of avoiding injury or death had been decreased due to the defendant’s negligence, or the Defendant’s conduct denied the patient a chance of survival. Even the destruction of less than fifty percent chance of survival is compensable. The Plaintiff must prove such a chance existed and that it was lost as a result of the Defendant’s negligence. Smith v. State, Through the Department of HHR, 523 So.2d 815 (La.1988). The Court’s opinion, after properly stating the doctrine of lost chance of survival and citing to these three cases, adds the following sentence: “This court finds that Plaintiffs have failed to carry then-burden of proof in showing that Mr. Ruff’s chances of survival would more probably than not have been increased to some ‘reasonable’ degree had Dr. Mora diagnosed his heart problems on May 27, 1984.” Although the court’s order refers to increasing the chance of survival by some “reasonable” degree and the case law never uses the word reasonable, we do not find that the court’s wording imposed a higher burden on the Plaintiff than the doctrine of lost chance dictates. The language in each case differs slightly. The “substantial factor” language is the common thread among the cases, if there is one to be found. The District Court’s reasonable degree language is, if anything, a lighter burden for the Plaintiff to meet than the “substantial factor” test. We find the Court’s order did not affect any substantial right of the Plaintiffs. 28 U.S.C. § 2111. APPORTIONMENT OF FAULT The Plaintiffs allege that the District Court erred in apportioning fault among the two defendant doctors. The Court did not apportion fault. The Court apportioned the negligence between the two doctors — 40% to Dr. Mora and 60% to Dr. Fleming. The Court found the decedent was not at fault for his own death. The Court then made a finding that the negligence proved by the Plaintiffs did not cause Mr. Ruff’s death. If, as Appellants are asking, we assign 100% of the negligence to Dr. Mora, it does not change the outcome of the case, given the Court’s finding on causation. We find no merit in this point of error. CONCLUSION We AFFIRM the order of the Trial Court. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

songer_respond1_3_3

F

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant. HANBY v. COMMISSIONER OF INTERNAL REVENUE. No. 3491. Circuit Court of Appeals, Fourth Circuit. Oct. 3, 1933. Robert Ruark, of Raleigh, N. C. (Ruark & Ruark, of Raleigh, N. C., on the brief), for petitioner. J. P. Jackson, Sp. Asst, to Atty. Gen. (Sewall Key and Earl C. Crouter, Sp. Assts. to Atty. Gen., and E. Barrett Prettyman, Gen. Counsel, Bureau of Internal Revenue, and Mason B. Leming, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for respondent. Before PARKER, NORTHCOTT, and SOPER, Circuit Judges. SOPER, Circuit Judge. A petition was filed by tbe taxpayer to review a decision of tbe Board of Tax Appeals affirming tbe Commissioner’s determination of additional income and excess profits taxes for tbe years 1917, 1918, 1919, 1920, and 1921. Tbe sum of the deficiencies of tbe taxes in these years, as so approved, is $22,829.-64, to which penalties in the amount of $20,-556.35 have been added. For the year 1917 there was imposed under R. S. § 3176, as amended by section 16 of the Revenue Act of 1916 (39 Stat. 756, 775), a penalty of 50 per cent, of the excess profits tax, for failure to make and file the excess profits return, and also a penalty of 100 per cent, of the income tax, for willfully making a false and fraudulent income tax return; while for each of the other years there was imposed, under section 250 (b) of the Revenue Acts of 1918 and 1921 (40 Stat. 1057 ; 42 Stat. 227), a penalty of 50 per cent, of the amount of the deficiency, for false and fraudulent understatement, with intent to evade the tax or the amount which should have been paid. Petitioner does not question the amount of the deficiencies assessed, but advances divers reasons why the assessment may not now be imposed upon the following facts as found by the Board. Petitioner was engaged during the years in question at Wilmington, N. C., in the manufacture and. wholesale distribution of candies and soft drinks, under the trade-name of Crescent Candy Company. A false record book was kept, under petitioner’s direction, the accounts of the business were deliberately manipulated in order that his taxable gain might be understated, and false returns, based upon these accounts, were filed in due time for each of the years 1917 to 1921. On June 9, 1923, after an examination of petitioner’s books, a deficiency letter, with attached statement showing an additional tax and penalty of $63,892.37 for the years 1917, 1918, and 1919, was mailed to petitioner, and as a result petitioner filed amended returns for those years, admitting part of the liability asserted. Conferences were then had in Washington between a representative of the petitioner and representatives of the Bureau of Internal Revenue, and as a consequence of these discussions an additional assessment of taxes and penalties was made by the Commissioner, and additional payments were made by the taxpayer under circumstances to be later more fully described. In the year 1924, a further examination of petitioner’s books was had, and a second deficiency letter, showing additional taxes and penalties in the sum' of $43,385.99, was mailed to petitioner on October 11, 1924. A jeopardy assessment for this sum followed in November, 1924; and the present proceeding grows out of the respondent’s rejection on June 3, 1927, of petitioner’s claim for abatement of the full amount of the additional assessment. In the meantime, petitioner was indicted in the United States District Court for the Eastern District of North Carolina for willful attempt to defeat and evade the taxes imposed by law, by filing false and fraudulent amended returns for the years 1917,1918, and 1919; and also for filing a false and fraudulent original return for 1921. He was tried under this indictment and acquitted of the charges with reference to the amended returns for 1917, 1918, and 1919, but convicted of. the charge in relation to his original return for 1921. Upon these facts, petitioner contends: (1) That the assessment in November, 1924, of taxes and penalties for 1917, 1918, and 1919 was barred by the statute of limitations; (2) that there was a binding settlement and compromise of tax liability for the years 1917,1918, and 1919; (3) that the acquittal of petitioner on criminal charges in connection with the amended returns for 1917,1918, and 1919 is res judicata, as to his liability for fraud penalties for those years; and (4) that the indictment and conviction of petitioner on the charge of filing a false and fraudulent original return for 1921. operates as a bar, under the doctrine of double jeopardy, to the further imposition of the fraud penalty for that year. There is also a preliminary procedural question, petitioner earnestly contends, as to the penalties imposed, that the question of fraud was not properly raised by the pleadings before the Board, and hence that certain objections made by him at the hearing to evidence of fraud offered by the respondent should have been sustained, leaving no evidence in the reeord to support the imposition of the penalties. It is true that respondent did not affirmatively allege fraud in his answer, but simply denied that he had erred in making the assessment and denied generally the material allegations of fact in the petition. Nor did the petitioner expressly alldge the absence of fraud. In his specifications he referred to certain of the defenses above mentioned, and declared that the computation of tax and penalties was erroneous, being based upon improper data and records, and not in accord with the facts. But it does not follow that the question of fraud was not in issue. It is obvious that the petitioner was well aware that fraudulent conduct on his part formed the basis of the Commissioner’s determination, for the petition itself contained the allegation on his part that the amounts assessed against him as penalties were assessed upon the ground that he had unlawfully and willfully attempted to evade payment of the taxes imposed upon him for the respective years. Moreover, as the Board pointed out in its opinion, the question of fraud was inherent in the Commissioner’s determination. The jeopardy assessment of November 29, 1924, of $43,385.99, consisted of additional taxes and of penalties incurred from his willful attempt to evade the payment of taxes. He filed a claim in abatement of this assessment which was rejected on June 3,1927, and the pending petition was filed by him to secure a review of this rejection by the Board. Since the Commissioner’s determination and assessment of penalties'was based on a finding of fraud, the only way in which the taxpayer could get relief was to put the question of fraud in issue;- for the Board has merely a revisory capacity and its jurisdiction is limited to the issues raised by the pleadings before it. Popular Price Tailoring Co. v. Commissioner (C. C. A.) 33 F.(2d) 464; Blair v. Mathews (C. C. A.) 29 F.(2d) 892; ‘ Boggs & Buhl, Inc., v. Commissioner (C. C. A.) 34 F.(2d) 859, 861. Therefore, unless it appears from the petition of the taxpayer that he contested the validity of the Commissioner’s finding on the ground that fraud was not proved, the Commissioner’s determination of fraud must necessarily stand. Compare Board of Tax Appeals v. United States, 59 App. D. C. 161, 37 F.(2d) 442. It would avail the taxpayer nothing in this ease to interpret the general assignment of error above referred to in the manner which he now suggests as questioning only the correctness of the mathematical calculation involved in the assessment, for no error has been shown in this respeet, and this interpretation would leave the finding of fraud by the Commissioner undisturbed. It may be added in passing that the point under discussion is purely formal and technical, because the Commissioner offered evidence which fully established fraudulent conduct on the part of the petitioner in connection with his tax return, and the petitioner offered no evidence on his behalf to the contrary. Under these circumstances, we think that the Board was correct in holding that the Commissioner’s answer, filed on August 22, 1927, was in accord with rule 14 of the Board, which then provided, in substance, that the answer should fully advise the petitioner and the Board of the nature of the defense, and should contain a specific admission or denial of each material allegation of fact contained in the petition, and should set forth any new matters upon which the petitioner relies for defense or for affirmative relief. The issue of fraud was not new matter within the meaning of this rule because it was inherent in the Commissioner’s prior determination; and it cannot be said that the petitioner was in need of advice that fraud was involved, since his petition dis-. closed that he was in possession of this information. Subsequent to the filing of the answer, section 601 of the Revenue Act of 1928, 45 Stat. 791 (26 USCA § 1219 (a) amending section 907 (a) of the Revenue Act of 1924, 43 Stat. 253, was passed providing for the first time that the burden of proving fraud should be upon the Commissioner; and, pursuant to this statute, the Board amended rule 14 to provide that the answer shall contain amongst other things a statement of any facts upon which the petitioner relies to sustain any issue raised in the petition in respect to which the burden of proof is placed upon the Commissioner; but this rule was not in effect in 1927 when the answer was filed, and such a statement was not then necessary. This result disposes also of the first contention made by petitioner upon the facts as found by the Board, that the assessment of taxes and penalties for the years 1917, 1918, and 1919 was barred by the statute of limitations. Section 277 (a) (3) of the Revenue Act of 1926, 44 Stat. 9, 26 USCA § 1057 (a) (3), provides: “The amount of income, excess-profits, and war-profits taxes imposed by * * * the Revenue Act of 1917, the Revenue Act of 1918, and by any such Act as amended, shall be assessed within five years after the return was filed. * * * ” Section 278 (a) (26 USCA § 1058) provides: “In the case of a false or fraudulent return with intent to evade tax or of a failure to file a return the tax may be assessed * * * at any time.” Since the Board has found, on proper and sufficient evidence, that petitioner’s returns for 1917, 1918, and 1919 were false and fraudulent with intent to evade tax, and that no excess profits return was filed for 1917, the jeopardy assessment of November, 1924, was timely. Petitioner’s next contention is that there has been a valid compromise and settlement of his liability for taxes and penalties for the years 1917, 1918, and 1919, which prevents further recovery for those years. He relies upon the authority given the Commissioner by R. S. § 3229 (26 USCA § 158), to compromise certain claims, the language of the provision being: “The Commissioner of Internal Revenue, with the advice and consent of the Secretary of the Treasury, may compromise any civil or criminal ease arising under the internal-revenue laws instead of commencing suit thereon. * * * 'Whenever a compromise is made in any ease there shall be placed on file in the office of the commissioner the opinion of the Solicitor of Internal Revenue, or of the officer acting as such, with his reasons therefor, with a statement of the amount of tax assessed, the amount of additional tax or penalty imposed by law in consequence of the neglect or delinquency of the person against whom the tax is assessed, and the amount actually paid in accordance with the terms of the compromise.” The evidence offered by petitioner to¡ show that a compromise was effected in accordance with this section, tended to show that after an examination of petitioner’s books by an internal revenue agent in 1923, and after receipt of the first deficiency letter, petitioner filed amended returns for the years 1917, 1918, and 1919, and also a protest to the deficiency letter in which he stated he was making an “offer of compromise in the amount of $12,880.55”; that at a conference between a representative of petitioner and certain subordinate officials in the bureau, the facts sworn to by petitioner in the protest and in the amended returns were discussed, and petitioner’s contention that there had been no fraud in the original returns was apparently accepted; that at this conference a cheek for $12,880.55, payable to the Commissioner, which was tendered with the protest, was tentatively accepted; that it was agreed at a later conference that this cheek should be accepted as part payment of the total tax which the bureau’s audit of the amended returns showed to be due, and that the balance of $7,263.22 should be met by a cheek payable to the collector of internal revenue for the district of North Carolina, where the taxpayer resided, and that this was done; that the cheek for $12,880.55 was indorsed by the Commissioner to the collector, and that both checks were indorsed by the latter official and deposited in bank, and that each cheek stated on its face that it was in full and final payment of all federal taxes and penalties for the years in question. Petitioner offered no evidence that the consent of the Secretary of the Treasury to the offer of compromise had been given, or that an opinion of-the Solicitor of Internal Revenue had been placed on file, as required by the provisions of R. S. § 322-9, above set out. On the other hand, the respondent offered evidence tending to show that there was no record in the office of the collector, or in the office of the General Counsel of the Bureau of Internal Revenue, or in the office of the Solicitor of Internal Revenue, that an offer of compromise had been tendered. This evidence was objected to by the petitioner, but the objection was properly overruled by the Board, since the evidence obviously tended to show that the requirements of the statute with respect to the consent of the Secretary of the Treasury, and of the filing of an opinion by the Solicitor of Internal Revenue had not been met. It was also shown that a carbon copy of an offer of compromise, dated June 14, 1923, which the petitioner claimed that he had filed with the collector on or about that date, was written on an official form that was not printed until August, 1924, and the petitioner made no effort to explain the discrepancy in dates. The Board of Tax Appeals held that the evidence failed to establish that a compromise had been reached in compliance 'with the provisions of R. S. § 3229, and since there was substantial evidence to support the finding, it is binding on this court. Ox Fibre Brush Co. v. Blair (C. C. A.) 32 F. (2d) 42, 68 A. L. R. 696. Petitioner nevertheless contends that the evidence outlined brings the ease within the rule laid down by this court in Oliver v. United States, 267 F. 544, where it was held by a divided court that upon the trial of the defendant for violating the Harrison Narcotic Act (26 USCA §§ 211, 691-707), it was error to reject evidence tending to show that the defendant had made an offer of compromise to the Commissioner of Internal Revenue, accompanied by a check in payment of the amount offered, which was indorsed by the Commissioner to the proper collector of internal revenue and deposited by the latter in bank. It was held that this evidence, in the absence of any evidence to the contrary, at least tended to show that the compromise had been approved and duly accepted by the proper officials of the government, in accordance with the statute. That case, however, is not controlling here for the evidence of the petitioner has been met by evidence on the part of the respondent creating an issue of fact upon which the Board has made a binding decision. Moreover, the more recent decision of the Supreme Court in Botany Mills v. United States, 278 U. S. 282, 49 S. Ct. 129, 73 L. Ed. 379, is conclusive of the matter. There the taxpayer’s hooks showed the necessity of an additional assessment, and after much correspondence and numerous conferences with subordinate officials of the Bureau of Internal Revenue, it filed an amended return and paid an additional tax based upon figures agreed upon in the conferences. But the Secretary of the Treasury did not consent to the settlement, and no opinion was filed by the Solicitor of Internal Revenue. The taxpayer sued to recover a part of the additional tax on the ground that it had been illegally collected, and was met with the defense that a binding agreement of compromise had been made. The Supreme Court said (page 288 of 278 U. S., 49 S. Ct. 129, 131, 73 L. Ed. 379): “Here the attempted settlement was made by subordinate officials in the Bureau of Internal Revenue. And although it may have been ratified by the Commissioner in making the additional assessment based thereon, it does not appear that it was assented to by the Secretary, or that the opinion of the Solicitor was filed in the Commissioner’s office. “We think that Congress intended by the statute to prescribe the exclusive method by which tax eases could be compromised, requiring therefor the concurrence of the Commissioner and the Secretary, and prescribing the formality with which, as a matter of public concern, it should be attested in the files of the Commissioner’s office; and did not intend to intrust the final settlement of such matters to the informal action of subordinate officials in the Bureau. When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.” This result renders it unnecessary to consider several assignments of error relative to the admission of evidence as to what transpired at the conferences in the bureau, and as to the interpretation placed upon the result of those conferences by certain officials. There is no merit in petitioner’s contention that his acquittal as to the years 1917, 1918, and 1919 upon an indictment charging willful attempts to defeat and evade tax in those years, operates, under the doctrine of res judicata, as a bar to the imposition of fraud penalties for those years. The criminal charges as to 1917, 1918, and 1919 related only to the amended returns which petitioner filed after the examination of his books in 1923, and the issue here involved, of fraud in the original returns, is wholly distinct. There can be 'no estoppel by judgment, where the former and subsequent ease do not involve the same claim or demand, unless the point or question to be determined in the later ease is the same as that litigated and determined in the former. Tait v. Western Maryland Ry. Co., 289 U. S. 620, 53 S. Ct. 706, 77 L. Ed. 1405; Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195. Finally petitioner contends that the fraud penalty of $357.41, assessed for the year 1921 under section 250 (b) of the Revenue Act of 1921 (42 Stat. 227, 264, 265), set forth in the note, may not properly be imposed upon him because of his prior indictment and conviction in 1924 for having filed the same false and fraudulent return for 1921. The contention is, that the fraud penalty is a punishment for crime, and that, having once been punished in a criminal proceeding for the same offense, petitioner is protected from a second punishment by the Fifth Amendment to the Constitution, providing that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” The Board found as a fact that the petitioner had been indicted and convicted of filing a false and fraudulent return for 1921, the return being his original return for that year and the same for which the penalty now under discussion was assessed; and following the language of section 250 (b), which specifically imposes the fraud penalty “in addition to other penalties provided by law for false or fraudulent returns,” the Board approved the respondent’s determination. It appears that the petitioner was found guilty of a violation of section 253 of the Revenue . Act of 1921, 42 Stat. 268, which provides that “any individual * ® ® who willfully attempts in any manner to defeat or evade the tax imposed by this title, shall be guilty of a misdemeanor,” and punished by fine and imprisonment. Thus the question is presented whether a conviction under section 253 of the Revenue Act of 1921 for willfully attempting to defeat or evade a tax by the filing of a false or fraudulent return operates as a bar to the subsequent assessment and collection under section 250 (b) of that act of the added penalty of 50 per centum of the deficiency found to exist in'the same fraudulent return. Petitioner relies entirely upon United States v. La Franca, 282 U. S. 568, 51 S. Ct. 278, 75 L. Ed. 551, and United States v. Chouteau, 102 U. S. 603, 26 L. Ed. 246. It was held in the former ease that a civil suit for the recovery of taxes and penalties, imposed by the earlier statutes upon the illegal manufacture and traffic in intoxicating liquors, and kept alive and increased by section 35 of title 2 of the National Prohibition Act (27 USCA § 52), was barred by a prior conviction involving the same unlawful conduct under the National Prohibition Act. The decision was based upon an interpretation of section 5 of the Willis-Campbell Act (27 USCA § 3), which provided that if any act should be both a violation of the earlier laws and also of the National Prohibition Act, a conviction under one statute should be a bar to a subsequent prosecution under the other. It was said that a contrary interpretation would give rise to a grave constitutional question; and it was pointed out that the so-called tax had no relation to the ordinary support of the government, but was an exaction imposed by statute as a punishment for an unlawful act, and that the fact that the second case was a civil action did not alter the rule that a person may not be twice punished for the same offense. In United States v. Chouteau, 102 U. S. 603, 26 L. Ed. 246, it was held that where the government had accepted a sum of money in compromise of the charges in an indictment for the removal of distilled spirits from a distillery, without paying the revenue tax thereon, it could not succeed in a civil suit for the recovery of a penalty for the same unlawful act, although R. S. § 3296 (26 USCA § 404) imposed not only a fine and imprisonment for unlawful removal, but also a penalty. Speaking of the defendant, the court said (page 611 of 102 U. S.) : “He has been punished in the amount paid upon the settlement for the offence with which he was charged, and that should end the present action, according to the principle on which a former acquittal or conviction may be invoked to protect against a second punishment for the same offence. To hold otherwise would be to sacrifice a great principle to the mere form of procedure, and to render settlements with the government delusive and useless.” Respondent contends that the Fifth Amendment is inapplicable because (1) the identity of offenses necessary to give rise to the bar of double jeopardy has not been established, and (2) the fraud penalty imposed by section 250 (b) is not a punishment for 'crime. Respondent’s first contention is based upon the doubtful ground that the offenses must be regarded as distinct because fraud, while expressly made essential to liability for the penalty provided by section 250 (b), is-not a necessary ingredient of the criminal offense described in section 253. For the purposes of this case, however, we shall assume the identity of the offenses. Similarly, we shall assume, contrary to the eontention of the respondent, that a second punishment, even though imposed as an administrative penalty, violates the prohibition of the Fifth Amendment that no' person shall be twice in jeopardy for the same offense. But it does not follow that recovery of the penalty in this ease is barred by the Fifth Amendment. It is manifest that Congress intended to impose upon such unlawful and fraudulent conduct as that of the taxpayer in this ease not only a punishment by .fine and imprisonment through criminal prosecution under section 253 of the Revenue Act of 1921, but also the added penalty under section 250 (b), to become due and payable upon notice and demand by the collector. Under such circumstances it has been held that the statute does not impose a second punishment for the same offense, but that the several penalties are parts of a whole which is not satisfied by the imposition of a. part.. Thus the ease of In re Leszynsky, 15 Fed. Cas. 397, No. 8,279, involved a civil suit in which the United States had recovered a monev penalty imposed by R. S. § 3318 (26 USCA § 329), and it was held .that this judgment was not a bar to a subsequent criminal prosecution based on the same offense. Blatehford, Circuit Judge, quoting from People v. Stevens, 13 Wend. (N. Y.) 341, 342, said: “It is undoubtedly competent for the legislature to subject any particular offence both to a penalty and a criminal prosecution; it is not punishing the same offence twice. They are but parts of one punishment; they both constitute the punishment which the law inflicts upon the offence. That they are enforced in different modes of proceeding, and at different times, does not affect the principle. It might as well be contended that a man was punished twice, when he was both fined and imprisoned,-which he may be in most misdemeanors.” He also said: “The 5th amendment to the constitution of the United States provides that no person shall ‘be subject, for the same offence, to be twice put in jeopardy of life or limb.’ It is contended, for the United States^ that the judgment in the civil suit, and the payment of it, did not subject the relator to be put in jeopardy of his life or limb. But, even though the spirit of this amendment be to prevent a second punishment, under judicial proceedings, for the same crime, so far as the common law gave that protection (Ex parte Lange, 18 Wall. (85 U. S.) 163,170 [21 L. Ed. 872]), yet the criminal proceeding now instituted against the relator will not produce a second punishment for the same offence, but will only complete, on conviction, the punishment intended by congress. The 5th amendment was proposed by congress on the 25th of September, 1789, and was ratified by eleven states in that year and the following two years. But, that amendment has not been regarded by congress as preventing legislation such as that found in the statute now in question.” The decision of the Board of Tax Appeals is affirmed. “Sec. 250. * * * (b) * * * If any part of the deficiency is due to fraud with intent to evade tax, then, in lieu of the penalty provided by section 3176 of the Revised Statutes, as amended, for false or fraudulent returns willfully made, but in addition to other penalties provided by law for false or fraudulent returns, there shall be added as part of the tax 50 per centum of the total amount of the deficiency in the tax. In such case the whole amount of the tax unpaid, including the penalty so added, shall become due and payable upon notice and demand by the collector.” Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant? A. Food & Drug Administration B. General Services Administration C. Government Accounting Office (GAO) D. Health Care Financing Administration E. Immigration & Naturalization Service (includes border patrol) F. Internal Revenue Service (IRS) G. Interstate Commerce Commission H. Merit Systems Protection Board I. National Credit Union Association J. National Labor Relations Board K. Nuclear Regulatory Commission Answer:

sc_casesource

029

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. UNITED STATES v. MAZURIE et al. No. 73-1018. Argued November 12, 1974 Decided January 21, 1975 Rehnquist, J., delivered the opinion for a unanimous Court. Harry B. Sachse argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Johnson, Jacques B. Gelin, and Lawrence E. Shearer. Charles E. Hamilton argued the cause and filed a brief for respondents. Jerome F. Statkus, Assistant Attorney General, argued the cause for the State of Wyoming as amicus curiae urging affirmance. With him on the brief was Sterling A. Case, Deputy Attorney General. Marvin J. Sonosky and Glen A. Wilkinson filed a brief for the Shoshone and Arapahoe Tribes of the Wind River Indian Reservation as amici curiae urging reversal. Mb. Justice Rehnquist delivered the opinion of the Court. The respondents were convicted of introducing spirituous beverages into Indian country, in violation of 18 U. S. C. § 1154. The Court of Appeals for the Tenth Circuit reversed. 487 F. 2d 14 (1973). We granted certiorari, 415 U. S. 947 (1974), in order to consider the Solicitor General’s contentions that 18 U. S. C. § 1154 is not unconstitutionally vague, that Congress has the constitutional authority to control the sale of alcoholic beverages by non-Indians on fee-patented land within the boundaries of an Indian reservation, and that Congress could validly make á delegation of this authority to a reservation’s tribal council. We reverse the Court of Appeals. I The Wind River Reservation was established by treaty in 1868. Located in a rather arid portion of central Wyoming, at least some of its 2,300,000 acres have been described by Mr. Justice Cardozo as “fair and fertile,” Shoshone Tribe v. United States, 299 U. S. 476,486 (1937). It straddles the Wind River, with its remarkable canyon, and lies in a mile-high basin at the foot of the Wind River Mountains, whose rugged, glaciated peaks and ridges form a portion of the Continental Divide. The reservation is occupied by the Shoshone and Arapahoe Tribes. . Although these tribes were once “ancestral foes,” ibid., they are today jointly known as the Wind River Tribes. As a result of various patents, substantial tracts of non-Indian-held land are scattered within the reservation’s boundaries. It was on such non-Indian land that respondents Martin and Margaret Mazurie operated their bar, which did business under the corporate name of the Blue Bull, Inc. Before 1953 federal law generally prohibited the introduction of alcoholic beverages into “Indian country.” 18 U. S. C. § 1154 (a). “Indian country” was defined by 18 U. S. C. § 1151 to include non-Indian-held lands “within the limits of any Indian reservation.” In 1949, the term was given a narrower meaning, insofar as relevant to the liquor prohibition, so as to exclude both fee-patented lands within “non-Indian communities” and rights-of-way through reservations. Act of May 24, 1949, 63 Stat. 94, 18 U. S. C. § 1154 (c), supra, n. 1. The quoted term is not defined, a fact which creates problems with which we shall shortly deal. In 1953 Congress passed local-option legislation allowing Indian tribes, with the approval of the Secretary of the Interior, to regulate the introduction of liquor into Indian country, so long as state law was not violated. Act of Aug. 15,1953, 67 Stat. 586,18 U. S. C. § 1161 The Wind River Tribes responded to this option by adopting an ordinance which permitted liquor sales on the reservation if made in accordance with Wyoming law. When the Blue Bull originally opened, a liquor license had been issued to it by Fremont County, Wyo., and its operation was therefore consistent with that tribal ordinance. But in 1971 the Wind River Tribes adopted a new liquor ordinance, Ordinance No. 26. That ordinance required that retail liquor outlets within Indian country obtain both tribal and state licenses. In 1972, the Mazuries applied for a tribal license, after warnings that they would be subject to criminal charges if they continued to operate without one. The tribes held a public hearing which Martin Mazurie and the Ma-zuries’ lawyer attended. Witnesses protested grant of the license, complaining of singing and shooting at late hours, disturbances of elderly residents of a nearby housing development, and the permitting of Indian minors in the bar. The application was denied. Thereafter, the Mazuries closed the Blue Bull. Three weeks later they reopened it. It remained in operation for approximately a year, until federal officers seized its alcoholic beverages, and this criminal prosecution was initiated. The case was tried to the District Court without a jury. Since most of the factual issues were disposed of by stipulations, the testimony at trial primarily dealt with whether the bar was within “Indian country.” On the basis of testimony about the Blue Bull’s location, and about the racial composition of residents of the surrounding area, the court concluded that the bar was so located. Holding that federal authority could reach non-Indians located on privately held land within a reservation’s boundaries, the court entered judgments of conviction. Each respondent was fined $100. The Court of Appeals reversed the convictions. It concluded that the prosecution had not carried its burden of proving beyond a reasonable doubt that the bar was not excluded from Indian country by the § 1154 (c) exception for “fee-patented lands in non-Indian communities.” This conclusion was tied directly to the more basic holding: “[T]he terminology of 'non-Indian community’ is not capable of sufficiently precise definition to serve as an element of the crime herein considered .... The statute is thus fatally defective by reason of this indefinite and vague terminology.” 487 F. 2d, at 18. As a second basis for reversal, the court held that insofar as 18 U. S. C. § 1161 authorized Indian tribes to adopt ordinances controlling the introduction by non-Indians of alcoholic beverages onto non-Indian land, it was an invalid congressional attempt to delegate authority. The Court of Appeals also suggested that Congress itself could not regulate the sale of alcohol by non-Indians on fee-patented non-Indian lands within Indian reservations. II It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand. United States v. National Dairy Products Corp., 372 U. S. 29 (1963). In determining whether § 1154 (c) is unconstitutionally vague as to respondents, we must therefore first consider the evidence as to the location of the Blue Bull. The evidence showed that the bar was located on the outskirts of Fort Washakie, Wyo., an unincorporated village bearing the name of the man who was chief of the Shoshones during their early years on the Wind River Reservation. Shoshone Tribe v. United States, 299 U. S., at 486; Harmston, supra, n. 2, at 3-4. Fort Washakie is the location of the Wind River Agency of the Bureau of Indian Affairs, and of the Tribal Headquarters of the Wind River Tribes. One witness testified that the village was an “Indian community.” App 49. The evidence also showed that of the 212 families living within a 20-square-mile area roughly centered on the Blue Bull, 170 were Indian families, 41 were non-Indians, and one was mixed. A large-scale United States Geological Survey map was introduced to show the limits of this housing survey. It indicates that the survey included all settlements within the Fort Washakie area, and that the nearest not-included concentrations of housing were at Saint James Church and Ethete, some four miles beyond the boundaries of the survey and some six miles from Fort Washakie. The evidence also established that the state school serving Fort Washakie, and located about two and one-half miles from the Blue Bull, had a total enrollment of 243 students, 223 of whom were Indian. Other evidence bearing on whether the Blue Bull was located in a non-Indian community was Martin Mazurie’s testimony that the bar served both Indians and non-Indians, and that: “We are kind of out there by ourselves, you know.” App. 70. A transcript of the hearing on the Mazuries’ application to the tribes for a retail liquor license was also admitted at the trial. That transcript indicates that the Blue Bull was located near a public housing development populated largely if not entirely by Indians. Residents of this development complained that persons leaving the bar late at night, and for one reason or another having either no transportation or no destination, would wander into the development. There was no testimony that the Blue Bull was in a non-Indian community. The defense did obtain acknowledgments by prosecution witnesses that they could not precisely state the boundaries of the Fort Washakie Indian community. Otherwise, examination by the defense was directed at establishing that the term “Indian” was without precise meaning, and that the State of Wyoming generally had jurisdiction over non-Indians and their lands within the reservation. We think that the foregoing evidence was sufficient to justify the District Court’s implied conclusion that Fort Washakie and its surrounding settlements did not compose a non-Indian community. We do not read the opinion of the Court of Appeals as reaching a conclusion contrary to that which we have just stated. That court instead based its decision on the proposition that such proof did not go far enough, a view generated by its opinion of the requirements this statute must meet in order to avoid the vice of vagueness. The Court of Appeals was looking for proof beyond a reasonable doubt of precisely defined concepts of “Indian” and “community.” We gather that it expected persons treated as “Indians” in the housing and school surveys to be proved to satisfy a specific statutory definition. Similarly, it apparently expected that proof concerning the “community” should have conformed to some specific statutory definition, presumably one keyed to a geographical area with precise boundaries. We believe that the Court of Appeals erred by holding that the Constitution requires proof of such precisely defined concepts. The prosecution was required to do no more than prove that the Blue Bull was not located in a non-Indian community, where that term has a meaning sufficiently precise for a man of average intelligence to “reasonably understand that his contemplated conduct is proscribed.” United States v. National Dairy Products Corp., 372 U. S., at 32-33. Given the nature of the Blue Bull’s location and surrounding population, the statute was sufficient to advise the Mazuries that their bar was not excepted from tribal regulation by virtue of being located in a non-Indian community. Ill The Court of Appeals, expressed doubt that “the Government has the power to regulate a business on the land it granted in fee without restrictions.” 487 F. 2d, at 18. Because that court went on to hold that even if Congress did possess such power, it could not be delegated to an Indian tribe, that court did not find it necessary to resolve the issue of congressional power. We do, however, reach the issue, because we hereinafter conclude that federal authority was properly delegated to the Indian tribes. We conclude that federal authority is adequate, even though the lands were held in fee by non-Indians, and even though the persons regulated were non-Indians. Article I, § 8, of the Constitution gives Congress power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This Court has repeatedly held that this clause affords Congress the power to prohibit or regulate the sale of aleoholic beverages to tribal Indians, wherever situated, and to prohibit or regulate the introduction of alcoholic beverages into Indian country. United States v. Holliday, 3 Wall. 407, 417-418 (1866); United States v. Forty-three Gallons of Whiskey, 93 U. S. 188, 194-195 (1876); Ex parte Webb, 225 U. S. 663, 683-684 (1912); Perrin v. United States, 232 U. S. 478, 482 (1914); Johnson v. Gearlds, 234 U. S. 422, 438-439 (1914); United States v. Nice, 241 U. S. 591, 597 (1916). Perrin v. United States, supra, demonstrates the controlling principle. It dealt with the sale of intoxicating beverages within premises owned by non-Indians, on privately held land in an organized non-Indian municipality. The land originally had been included in the Yankton Sioux Indian Reservation, but had been ceded to the United States. The cession agreement, as ratified and confirmed by Congress, specified that alcoholic beverages would never be sold on the ceded land. The land was subsequently opened to private non-Indian settlers. In upholding Perrin’s conviction, this Court stated: “The power of Congress to prohibit the introduction of intoxicating liquors into an Indian reservation, wheresoever situate, and to prohibit traffic in such liquors with tribal Indians, whether upon or off a reservation and whether within or without the limits of a State, does not admit of any doubt. It arises in part from the clause in the Constitution investing Congress with authority ‘to regulate commerce with foreign nations, and among the several States, and with the Indian tribes,’ and in part from the recognized relation of tribal Indians to the Federal Government.” 232 U. S., at 482. Seymour v. Superintendent, 368 U. S. 351 (1962), is a more recent indication of congressional authority over events occurring on non-Indian land within a reservation. The case concerned an Indian’s challenge to a state burglary conviction. The Indian contended that because the offense took place within “Indian country,” it was within the exclusive jurisdiction of the United States by virtue of 18 U. S. C. § 1153. This Court agreed, despite the fact that the crime occurred on land patented in fee to non-Indians. While the opinion did not address the constitutional issue, it did reject a variety of statutory arguments for excluding the crime’s situs from 18 U. S. C. § 1151’s definition of “Indian country.” Of significance for our purposes is the fact that Congress’ authority to define “Indian country” so broadly, and to supersede state jurisdiction within the defined area, went both unchallenged by the parties and unquestioned by this Court. We hold that neither the Constitution nor our previous cases leave any room for doubt that Congress possesses the authority to regulate the distribution of alcoholic beverages by establishments such as the Blue Bull. IV The Court of Appeals said, however, that even if Congress possessed authority to regulate the Blue Bull, it could not delegate such authority to the Indian tribes. The court reasoned as follows: “The tribal members are citizens of the United States. It is difficult to see how such an association of citizens could exercise any degree of governmental authority or sovereignty over other citizens who do not belong, and who cannot participate in any way in the tribal organization. The situation is in no way comparable to a city, county, or special district under state laws. There cannot be such a separate 'nation’ of' United States citizens within the boundaries of the United States which has any authority, other than as landowners, over individuals who are excluded as members. “The purported delegation of authority to the tribal officials contained in 18 U. S. C. § 1161 is therefore invalid. Congress cannot delegate its authority to a private, voluntary organization, which is obviously not a governmental agency, to regulate a business on privately owned lands, no matter where located. It is obvious that the authority of Congress under the Constitution to regulate commerce with Indian Tribes is broad, but it cannot encompass the relationships here concerned.” 487 F. 2d, at 19. This Court has recognized limits on the authority of Congress to delegate its legislative power. Panama Refining Co. v. Ryan, 293 U. S. 388 (1935). Those limitations are, however, less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter. United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 319-322 (1936). Thus it is an important aspect of this case that Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory, Worcester v. Georgia, 6 Pet. 515, 557 (1832); they are “a separate people” possessing “the power of regulating their internal and social relations . . . ,” United States v. Kagama, 118 U. S. 375, 381-382 (1886); McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 173 (1973). Cases such as Worcester, supra, and Kagama, supra, surely establish the proposition that Indian tribes within “Indian country” are a good deal more than “private, voluntary organizations,” and they thus undermine the rationale of the Court of Appeals’ decision. These same cases, in addition, make clear that when Congress delegated its authority to control the introduction of alcoholic beverages into Indian country, it did so to entities which possess a certain degree of independent authority over matters that affect the internal and social relations of tribal life. Clearly the distribution and use of intoxicants is just such a matter. We need not decide whether this independent authority is itself sufficient for the tribes to impose Ordinance No. 26. It is necessary only to state that the independent tribal authority is quite sufficient to protect Congress’ decision to vest in tribal councils this portion of its own authority “to regulate Commerce ... with the Indian tribes.” Cf. United States v. Curtiss-Wright Export Corp., supra. The fact that the Mazuries could not become members of the tribe, and therefore could not participate in the tribal government, does not alter our conclusion. This claim, that because respondents are non-Indians Congress could not subject them to the authority of the Tribal Council with respect to the sale of liquor, is answered by this Court’s opinion in Williams v. Lee, 358 U. S. 217 (1959). In holding that the authority of tribal courts could extend over non-Indians, insofar as concerned their transactions on a reservation with Indians, we stated: “It is immaterial that respondent is not an Indian. He was on the Reservation and the transaction with an Indian took place there. The cases in this Court have consistently guarded the authority of Indian governments over their reservations. Congress recognized this authority in the Navajos in the Treaty of 1868, and has done so ever since. If this power is to be taken away from them, it is for Congress to do it. Lone Wolf v. Hitchcock, 187 U. S. 553, 564-566.” Id., at 223 (citations omitted). For the foregoing reasons the judgment of the Court of Appeals must be reversed, and the convictions of respondents reinstated. Reversed. Title 18 U. S. C. § 1154 provides in pertinent part: “(a) [W]hoever introduces or attempts to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, shall, for the first offense, be fined not more than $500 or imprisoned not more than one year, or both; and, for each subsequent offense, be fined not more than $2,000 or imprisoned not more than five years, or both. “(c) The term ‘Indian country’ as used in this section does not include fee-patented lands in non-Indian communities or rights-of-way through Indian reservations, and this section does not apply to such lands or rights-of-way in the absence of a treaty or statute extending the Indian liquor laws thereto.” F. Harmston, Wind River Basin 2 (1953); H. Granger et al., Mineral Resources of the Glacier Primitive Area, Wyoming, Geological Survey Bull. No. 1319-F, pp. F2-F5 (1971). Title 18 U. S. C. § 1151 provides in pertinent part: “Except as otherwise provided in sections 1154 and 1156 of this title, the term ‘Indian country,’ as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation . . . .” Title 18 U. S. C. § 1161 provides: “The provisions' of sections 1154, 1156, 3113, 3488, and 3618, of this title, shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both- with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, .and published in the Federal Register.” The ordinance was properly approved by the Secretary of the Interior and published in the Federal Register. 37 Fed. Reg. 1253-1254 (1972). The Blue Bull was reopened after the decision of the Court of Appeals. In April 1974, however, Fremont County refused to renew its license and it was again closed. Brief for United States 5 n. 4; Brief for Respondents 20 n. 8. It was stipulated that the Blue Bull was being operated without the license required by Ordinance No. 26, that alcoholic beverages had been sold at the Blue Bull, that the Blue Bull was located within the Wind River Reservation, but on land which it owned in fee, and that the Blue Bull had been properly licensed by state authorities. The District Court did not make a specific finding of fact that the Blue Bull was not located in a non-Indian community. The court did find that it was in “Indian Country,” that it was situated “at a site known as Fort Washakie, Wyoming,” that “Fort Washakie is not an incorporated non-Indian community with recognized boundaries,” and that the bar had been operated in violation of 18 U. S. C. § 1154 (which contains the exclusion from “Indian country” of fee-patented lands in non-Indian communities). The ambiguity in the trial court’s findings is readily explained by respondents’ failure to focus on the issue at trial. The nature of defense testimony and cross-examination is discussed infra, at 552. That respondents failed to contest the issue is further established by the motion to dismiss at the close of the Government’s evidence. The basis of the motion was failure “to prove beyond a doubt that [respondents] are operating in an Indian community,” App. 64 (emphasis added), which even if true is plainly irrelevant under the wording of § 1154 (c). Respondents’ counsel then proceeded with an argument based on respondents’ unrestricted fee ownership of the property on .which the bar was located. App. 64. In addition, respondents’ counsel did not dispute the court's statement at the close of the trial that the “sole issue” was “whether or not the Tribal Council has jurisdiction over deeded land held by these parties in fee . . . .” 2 Record on Appeal 140. The court went on to state: “[I]t is in Indian Country. There is not any question. You do not need to cite a single case that this bar and this ten acres is [sic] located in Indian Country. I am not saying it is Indian land, but it is Indian Country.” Ibid. Again, respondents’ counsel made no objection. He also apparently did not seek to focus the court’s attention on the issue by filing either a post-trial brief or proposed findings of fact and conclusions of law; while both parties had the opportunity to make such submissions, only the prosecution’s appears in the record on appeal. We assume, arguendo, as has the Government in its arguments before this court, that the prosecution has the burden of proving that the § 1154 (c) statutory exceptions are not applicable. Because of this assumption, and because we conclude that the Government in any event did carry this burden, we need not consider whether the exception must be pleaded and proved by criminal defendants. Cf. United States v. Vuitch, 402 U. S. 62, 70 (1971) (dealing with a criminal statute in which "an exception is incorporated in the enacting clause of a statute”). (Emphasis supplied.) We note that the § 1154 (e) exception is available for fee-patented lands which are in non-Indian communities, rather than for those which are not in Indian communities. This fact renders irrelevant the inability of prosecution witnesses to specify precise boundaries of the Fort Washakie Indian community. We need not detain ourselves with an issue which seemed to cause the Court of Appeals some difficulties, that of what qualifies a person as an "Indian.” The record plainly establishes that, in the circumstances of this case, the distinction between Indians and non-Indians was generally understood. Those who testified about the housing and school surveys displayed no difficulty in making such classifications. Nor did Mr. Mazurie. He testified that when there was trouble at his bar he would call the county sheriff to deal with a non-Indian, but would call the tribal police to deal with an Indian. When his counsel questioned him as to how he determined which was which, he simply replied: “Because I knew them.” App. 70. It is undisputed that the Wind River Tribes have not been emancipated from federal guardianship and control. There is thus no doubt that this case is properly analyzed in terms of Congress exclusive constitutional authority to deal with Indian tribes. Respondents attempt to bolster this claim with the argument that “the basic rights and principles of equal protection and due process [are] currently not available to non-Indians within the tribal councils.” Brief for Respondents 24. However, respondents make no claim that the tribal decision to deny them a license constituted a denial of equal protection or that it resulted from a hearing which lacked due process. Whether and to what extent the Fifth Amendment would be available to correct arbitrary or-discriminatory tribal exercise of its delegated federal authority must therefore, await decision in a case in which the issue is squarely presented and appropriately briefed. This observation is also applicable with regard to § 202 of Pub. L. 90-284, 82 Stat. 77, 25 U. S. C. §1302, which provides: “No Indian tribe in exercising powers of self-government shall ... (8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.” Quite apart from these potential sources of protection against arbitrary tribal action, such protection is to some extent assured by § 1161’s requirement that delegated authority be exercised pursuant to a tribal ordinance which itself has been approved by the Secretary of the Interior. Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:

songer_exhaust

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it would not hear the appeal for one of the following reasons: a) administrative remedies had not been exhausted; or b) the issue was not ripe for judicial action?" 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". Vladimir DOWHY v. HARVEY B. MOYER, INC., Defendant and Third-Party Plaintiff, Appellant, v. EASTERN ENGINEERING COMPANY, Third-Party Defendant, Appellant. No. 13168. United States Court of Appeals Third Circuit. Argued May 10, 1960. Decided May 16, 1960. Joseph X. Heincer, Robert C. Kitchen, Philadelphia, Pa., on the brief, for Eastern Engineering Company, third-party defendant-appellant. Thomas E. Comber, Jr., Philadelphia, Pa. (Perry S. Bechtle, Pepper, Hamilton & Scheetz, Philadelphia, Pa., on the brief), for Harvey B. Moyer, Inc., defendant and third-party plaintiff-appellant. Milton M. Borowsky, Philadelphia, Pa. (Abraham E. Freedman, Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for appellee, Vladimir Dowhy. Before GOODRICH, MeLAUGHLIN and STALEY, Circuit Judges. PER CURIAM. This is an appeal from the denial of a motion for direction of satisfaction of judgment. In the underlying action for damages for personal injuries, the plaintiff recovered a verdict of $25,000 against the original defendant and, on the third-party action, the original defendant recovered a verdict against the plaintiff’s employer, the third-party defendant. The plaintiff had already received $6,-782.47 in compensation payments, but the entire liability for compensation has not as yet been determined. Judgment has been entered against the original defendant but not against the third-party defendant inasmuch as the amount of its liability is still unliquidated. In this action the original defendant has paid into the registry of the court the amount of $18,643.71, representing $25,-000, less the amount paid by the employer as compensation together with costs and interest, and has moved the district court to have the judgment marked satisfied. In support of this proposition, the defendant relies upon Maio v. Fahs, 1940, 339 Pa. 180, 14 A.2d 105, which interpreted the 1915 Compensation Act; however, as the district court noted, the Workmen’s Compensation Act has since been amended, Act of May 29, 1951, P.L. 507, 77 Purdon’s Pa.Stat.Ann. § 671. It is perfectly clear that by virtue of the amendment, the employee is entitled to a pro rata counsel fee measured by the amount of the employer’s liability to him for compensation whether the compensation has been paid or not. Soliday v. Hires Turner Glass Co., 1958, 187 Pa. Super. 44, 142 A.2d 425, allocatur refused. The statute makes no exception for the case where the employer has been found liable for contribution as a joint tortfeasor. Appellant would have us construe the statute to require an innocent employer to pay counsel fees but allow one who was at fault to recover in full. In effect, this is an attempt on the part of the original defendant to utilize the right of subrogation which is granted by statute to the employer. But the statute expressly provides that the employer is not only liable for compensation payments but also for a proportionate share of counsel fees. Even assuming that the original defendant (the nonemployer) can utilize the employer’s right of subrogation in satisfaction of its claim for contribution against the employer as a joint tortfeasor, as we have noted above, the statutory amount that the employer can recover under this right is the amount of payments of compensation less a pro rata share of counsel fees. All of this was thoroughly analyzed and covered in the opinion of Judge Kirkpatrick in the district court, 184 F.Supp. 31, with which we fully agree. The order will be affirmed. . Under the Pennsylvania law, which is applicable here, the original defendant can recover against an employer who was a joint tortfeasor with him a judgment for contribution, but not in excess of the employer’s liability to the plaintiff-employee for compensation. Question: Did the court determine that it would not hear the appeal for one of the following reasons: a) administrative remedies had not been exhausted; or b) the issue was not ripe for judicial action? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_numresp

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. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. BOWIE v. SORRELL et al. No. 6670. United States Court of Appeals Fourth Circuit. Argued Nov. 17,1953. Decided Dec. 26, 1953. William J.. Gibson and- Bascom S. Pribble, Jr.,. Fredericksburg, Va., for appellant. C. O’Conor Goolrick, Fredericksburg, Va. (Caskie, Frost, Davidson & Watts, Lynchburg, Va., and Goolrick & Ashby, Fredericksburg, Va., on the brief),, for appellees. Before PARKER,' Chief Judge,. DO-BIE, Circuit Judge, and CHESNUT, District Judge.' DOBIE, Circuit Judge. , This civil action to recover damage's for personál injuries" alleged to have been suffered by .plaintiff, Bowie, in an aütóínobilé accident, was instituted in the Circuit Court of Campbéll County, Virginia, and was duly removed to the United States District Court for the Western. District of Virginia. The defendants filed an answer denying liability'and asserting that a settlement had béen made and that Bowie had 'executed a release in full for all claims against the defendants. Bowie- replied to the answer, admitting that he, executed the release, but claimed that it ■was obtained by. “fraud, undue influence, harrassment and misrepresentations on the part of- defendants acting through their agents and servants, who represented to- the plaintiff that $5,000.-00‘ was the maximum he could expect for his injuries; that in the event of .his death, his family would get nothing; that it was to his interest to sign without benefit of consultation with friends or attorneys,- that after signing the alleged release, when too ill to understand ,the extent and without knowledge of his .injuries, he was further hospitalized in ¡the Walter Reed Hospital until October .31, 1952.” Defendants moved the court for a separate trial- on thé issue of the validity of the'release, and asked that on this issue ¡a jury .trial be denied upon the ground that the matter of determining.the validity of an executed release was properly 'cognizable in equity, and therefore plaintiff was not entitled to a jury trial on this issue. A pretrial conference was held, and argument of counsel whs heard 'on the procedural questions' presented, the plaintiff strenuously insisting that he be awarded a single jury trial for the determination of all the issués- in this case. On the question of whether a separate trial upon the issue of the validity of the release should be had, and, whether upon .such separate trial there should be a jury, the District Judge stated , in his .opinion [113 F.Supp. 375] : “As the release'had been obtained by the' adjuster for the insurance company covering the public liability of the defendants, it seemed obvious that, if all issues were.tried at one time with a jury, the fact of the defendants’ insurance coverage' would inevitably be made .known to the jury. In Virginia, it has-been consistently held that evidence as tc insurance coverage is inadmissible and prejudicial to a defendant and the admission of such testimony or argument of counsel disclosing insurance coverage is reversible error. [P.] Lorillard [Co.] v. Clay, 127 Va. 734, 104 S.E. 384; Lanham v. Bond, 157 Va. 167, 160 S.E. 89; Worrell v. Worrell, 174 Va. 11, 4 S.E.2d. 343; Bloxom v. McCoy, 178 Va. 343, 17 S.E.2d 401. Therefore, it seemed clear to me that defendants were entitled tp a .separate trial on the issue of the validity of the release, and it was so ordered. “Upon the question of whether, notwithstanding defendants’ opposition, the plaintiff was entitled to a jury trial on this issue, the situation seemed to be that the trial of this issue was clearly in the nature of an equitable action to set aside and declare invalid an executed instrument. Chesapeake & Ohio Railway Co. v. Mosby, 93 Va. 93, 24 S. E. 916. As the issue would be one ‘not triable of right by a jury’, it seemed to me that I could not properly order a jury trial. It is true that I might have impaneled an advisory jury under the provisions of Rule 39(c), Fed.Rules Civ.Proc. 28 U.S.C.A., but as neither party had requested an advisory jury and I was of the opinion that an advisory jury would not be helpful as the duty of the final determination of the facts would rest upon the court, I denied plaintiff’s demand for a jury, trial, and set the case for trial upon the issue of the validity of the release by the court without á jury.” After an extended hearing the District Judge held: “It is my conclusion that the release executed by plaintiff on January 29, 1952, was voidable when executed, by reason of the mental incapacity of the plaintiff and the constructive fraud of defendant’s agent Reid.” The District Judge held, further, that “plaintiff by his subsequent conduct ratified the settlement and release”. Plaintiff’s action was, accordingly, dismissed, 113 F.Supp. 373. We think the District Judge acted altogether properly in granting a separate trial upon the issue of the validity of the release. Under Rule 42(b) of the Federal Rules of Civil Procedure, the granting of separate trials is within the sound discretion of the trial judge. There was no abuse of this discretion in the instant case. See, Bedser v. Horton Motor Lines, Inc., 122 F.2d 406, 407, opinion by, Circuit Judge Northcott, speaking for our Court. We must hold, though, that plaintiff, Bowie, was entitled to a jury trial on the issue of the validity of the release. We are not impressed by the statement in the brief for defendants: “We do not see how Bowie was prejudiced in any way by a failure to submit the issue of the validity of the release to a jury.” The right to a jury trial in a federal court, in a proper case, is guaranteed by the 7th Amendment to the United States Constitution and has been sedulously guarded by a long line of judicial decisions. See, for example, Jacob v. City of New York, 315 U.S. 752, 62 S.Ct. 854, 86 L.Ed. 1166; Callen v. Pennsylvania Railway Co., 332 U.S. 625, 68 S.Ct. 296, 92 L.Ed. 242. See, also, Rule 38, Federal Rules of Civil Procedure. In one place in his opinion, the District Judge stated: “In certain particulars, the evidence in this case is conflicting.” At another place, he said: “The matter of the mental capacity of the plaintiff at the time of the execution of the release seems to me to be a very close question.” The case must, therefore, be remanded to the District Court with instructions to grant a jury trial on the question of the validity of the release. ' From the brief for defendants, we quote: ■ “There are a number of cases in Virginia where the validity of releases has been tried with the tort actions by a court and jury, but in none of these eases has the question of a proper forum for passing on the validity of the release been raised. Flowers v. Virginian R. Co., 135 Va. 367, 116 S.E. 672; Northwestern Nat. Ins. Co. v. Cohen, 138 Va. 177, 121 S.E. 507; Stallard v. Atlantic Greyhound Lines, 169 Va. 223, 192 S.E. 800; Provident Life [& Accident] Ins. Co. v. Walker, 190 Va. 1016, 59 S.E.2d 126.” Both the District Judge and defendants rely upon the case of Chesapeake & Ohio. Railway Co. v. Mosby, 93 Va. 93, 24 S.E. 916. In that case, the plaintiff (injured conductor) “instituted this suit in chancery to set aside a release of all claim for damages suffered by him in that accident, on the ground that at the time of executing said release he was mentally incompetent, and that the defendant company took advantage of his incapacity to procuré the release.” Clearly, that was a chancery proceeding seeking an equitable remedy. Here, we have a quite different situation: a common-law suit for damages, a release pleaded as a defense by defendants, and an attack by the plaintiff on the validity of the release, based upon the alleged fraud of the agent of the defendants in procuring the release. Further, any comfort the defendants may find in the Mosby case, is completely taken away by subsequent decisions of the Virginia Supreme Court of Appeals. Thus Kelly, President, stated in Flowers v. Virginian Railway Co., 135 Va. 367, 116 S.E. 672: “The case of C Chesapeake] & 0 [hio] R[ailway] Co. v. Mosby, 93 Va. 93, 24 S.E. 916, cited by counsel for defendant, was a suit in chancery, and the decision was rendered by the chancellor without the intervention of a jury. In the instant case the question (the validity of a release attacked or the score of fraud) was properly referable to the jury”. 135 Vá. at page 382, 116 S.E. at page 677. And, see, also, Ferries Co. v. Brown, 121 Va. 13, 92 S.E. 813; Stallard v. Atlantic Greyhound Lines, 169 Va. 223, 192 S.E. 800; Provident Life & Accident Insurance Co. v. Walker, 190 Va. 1016, 59 S.E.2d 126. The decision in Atlantic Greyhound Lines v. Metz, 4 Cir., 70 F.2d 166, upon which the defendants rely, is not in point here, as in that case a jury trial was actually held. Ross v. Service Lines, Inc., D.C., 31 F.Supp. 871, is directly in point as supporting the contention of defendants, District Judge Lindley, though, made it quite clear in that case: “I consider myself bound to follow the reasoning of the Supreme Court of Illinois”. 31 F.Supp. at page 873. We think that our problem must be solved by federal law, not by the law of the State of Virginia, though we believe that the solution to the problem before us would be the same, whether the State law or the federal law be applied. In the leading case of Enelow v. New York Life Insurance Co., 293 U.S. 379, 384-385, 55 S.Ct. 310, 312, 79 L.Ed. 440, Chief Justice Hughes stated: “The instant case is not one in which there is resort to equity for cancellation of the policy during the life of the insured and no opportunity exists to contest liability at law. Nor is it a case where, although death may have occurred, action has not been brought to recover upon the policy, and equitable relief is sought to protect the insurer against loss of its defense by the expiration of the period after which the policy by its terms is to become incontestable. Here, on the death of the insured, an action at law was brought on the policy, and the defendant had opportunity in that action at law, and before the policy by its terms became incontestable, to contest its liability and accordingly filed its affidavit of defense. That defense was solely that the defendant had been induced to issue the policy by false answers in the application which were alleged to have been made by the applicant ‘with knowledge of their falsity and fraudulently’ in order to obtain the insurance. The affidavit of defense showed nothing whatever as a further ground for equitable relief, and the respondent is necessarily confined to the case it made. In such a case, the defense of fraud is completely available in the action at law, and a bill in equity would not lie to stay proceedings in that action in order to have the defense heard and determined in equity. Phoenix Mut. Life Insurance Co. v. Bailey, 13 Wall. 616, 623, 20 L.Ed. 501; New York Life Insurance Co. v. Bangs, 103 U.S. 780, 782, 26 L.Ed. 608; Cable v. United States Life Ins. Co., 191 U.S. 288, 305, 24 S.Ct. 74, 48 L.Ed. 188; American Mills Co. v. American Surety Co., 260 U.S. 360, 363, 43 S.Ct. 149, 67 L.Ed. 306; New York Life Ins. Co. v. Marshall, 23 F.2d 225; New York Life Ins. Co. v. Miller [8 Cir., 73 F.2d 350, 97 A.L.R. 562], supra. Respondent was in no better position under section 274b.” This seems to us to be controlling. The judgment of the District Court is reversed, and the case is remanded to that Court with instructions to grant a jury trial on the issue of the validity of the release. Reversed and remanded. Question: What is the total number of respondents in the case? Answer with a number. Answer:

songer_respond1_3_3

J

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant. MONTGOMERY WARD & CO., Inc., v. NATIONAL LABOR RELATIONS BOARD. No. 490. Circuit Court of Appeals, Eighth Circuit. Dec. 2, 1940. Stuart S. Ball, of Chicago, 111. (John A. Barr and R. F. Walker Smith, both of Chicago, 111., on the brief), for petitioner. Allen Heald, of Washington, D. C., (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, and Joseph Friedman and Thomas F.'Wilson, all of Washington, D. C., on the brief), for National Labor Relations Board. Before SANBORN and THOMAS, Circuit Judges, and DEWEY, District Judge. SANBORN, Circuit Judge. The petitioner, Montgomery Ward & Co., Inc., asks for the reversal of an order of the National Labor Relations Board, which, so far as now pertinent, requires the petitioner to cease and desist from “either directly or indirectly engaging in any manner of espionage or surveillance, or engaging the services of any agency or individuals for the purpose of interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purposes of collective bargaining and other mutual aid or protection; * * * ”; and requires the petitioner (respondent before the Board) to take the following affirmative action: “Notify in writing all its present and any future under-cover operatives at the St. Paul house that they shall not spy upon the respondent’s [petitioner’s] employees in their exercise of the right to self-organization, to form, join, or assist labor organizations of their own choosing, and to engage in concerted activities for the purposes of collective bargaining and other mutual aid or protection, and that they shall not report to the respondent [petitioner] regarding such exercise by the respondent’s [petitioner’s] employees; * * The Board asks for the enforcement of this order. The Board, in 1938, upon charges filed by Warehouse Employees’ Union No. 20,297, affiliated with the A. F. of L., issued its complaint, which, as finally amended, alleged that petitioner, following a strike at its St. Paul house, had refused to reinstate fifteen employees because they had struck and had engaged in concerted activities for the purpose of collective bargaining, and that the petitioner had thus discriminated in regard to their hire and tenure of employment, in violation of § 8(3) of the National Labor Relations Act. 249 Stat. 449, 452; 29 U.S.C.A. § 158 (3). The complaint further alleged that petitioner had maintained a system of espionage and had advised and warned its employees to refrain from joining the union, and thus had violated § 8(1) .of the Act. The petitioner, in its answer, conceded that the Board had jurisdiction, but denied having committed any unfair labor practices. A hearing was had before a Trial Examiner designated by the Board, at St. Paul, Minnesota. The Trial Examiner subsequently recommended that petitioner be ordered to cease and desist from interfering with the rights of its employees guaranteed by § 7 of the Act, 29 U.S.C.A. § 157; *and, further, that it be required to reinstate, with back pay, three of fifteen employees named in the complaint, and that the complaint with respect to the other twelve be dismissed. The petitioner filed exceptions to this report, and, after a hearing, the Board decided that petitioner had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by § 7 of the Act, thus violating § 8(1) of the Act, but that petitioner had not discriminated in regard to the hire and tenure of employment of any of the .fifteen employees named in the complaint, and had not violated § 8(3) of the Act. In addition to the order requiring the petitioner to cease and desist from violating § 8(1) of the Act, the Board ordered it to place the fifteen employees named in the complaint on a preferential list, to be offered employment when available, and to reinstate them to their former or equivalent positions before it hired others therefor. The complaint, in so-far as it alleged that petitioner had discriminated against the fifteen employees named in the complaint, was dismissed. 'In this court the Board, in its response to the petition for. the review of its order, asserted the validity of the entire order, and requested its enforcement, but in its brief it has requested the elimination from the order of all reference to placing the fifteen named employees upon a preferential list. Only so much of the order as relates to the alleged violation of § 8(1) of the Act, through petitioner’s use of a system of espionage, need be discussed. The facts out of which this controversy arises are not seriously in dispute. It is the inferences, drawn by the Board from the facts, that the petitioner challenges. The petitioner is' an Illinois corporation engaged in merchandising, with its main office and place of business in Chicago. It owns and operates a large retail and mail order house or establishment in St. Paul, Minnesota. For a long timé the petitioner has maintained a system of espionage or surveillance of its employees, which has been primarily used for obtaining information relative to matters in which it has a direct and proper interest, such as the honesty, moral character, and efficiency of the large number of employees who work in its establishment at St. Paul. These matters were not in any way related to the rights of its employees guaranteed by § 7 of the National Labor Relations Act. In 1936, 1937 and 1938 the system was utilized by the petitioner to secure information as to the attitude of its employees' toward unionization and with respect to union activities; and it was this use of the system which caused the filing of charges by the union with the Board that petitioner had interfered with the rights of its employees and thus violated § 8(1) of the Act. The evidence disclosed that the head of petitioner’s espionage or secret service system at St. Paul was the chief of petitioner’s ■store police. His operatives were secured-from among the regular employees of petitioner, who received, as their compensation for this special sérvice, either extra pay ■or promises of an increase in pay or of promotion. Confidential instructions were .given to the operatives, both verbal and in writing, by the chief of the system. They were directed to report thefts and irregularities of fellow employees which re•quired immediate attention to the Personnel Director of petitioner, or, in case of necessity, to the chief. At the end of each week, each operative was required to mail a ■confidential report, containing matters of interest, to the chief at his residence ad■dress, or, in case of his absence, to the residence address of the Personnel Director. The operatives were instructed to report -fairly and impartially upon both the bad and the good qualities of their fellow employees. The reports were to show “the true attitude of employees regarding their work, efficiency, attitude towards their immediate superiors, the management or company in general, employees’ outstanding qualities or dishonest or careless tendencies.” The operatives were advised that all information furnished was to be held in strictest confidence and referred only to the management. In June, 1936, the operatives received from their chief a letter which contained the following: “The management is very much interested in knowing the full details of the present labor situation throughout the house, namely, what the attitude is of the persons who have recently joined Local 120, what benefits they expect to derive from it, what their general attitude is towards this movement, also if there is any talk of organizing the house as a whole. * * * Please destroy this letter as soon as read.” In December, 1936, after an affiliated union had initiated the unionization of petitioner’s employees, the . chief wrote his operatives as follows: “Labor organizers are again at work among Ward employees. As usual, they are using the Government as an excuse to encourage organization among employees and to directly profit themselves. “A number of Ward employees have received a letter soliciting membership in The National Union of Mail Order Employees. This letter is signed ‘The Committee’, although a Saint Paul attorney, John T. O’Donnell at 519 New York Building, is named in the letter. “This is the way many organizations start and many times in the end cause trouble between companies and employees, with the result that both lose. You know that your company is anxious to do what is fair to its employees and, therefore, please be sure to report as soon as possible any discussions you hear of this new effort to cause trouble within the Ward organization.” Organization of the union in petitioner’s establishment in St. Paul was completed in the early spridg of 1937. In April of that year the chief told one of petitioner’s employees, whom he was asking to join his force of operatives, “that there was a lot of talk now about the union and they wanted to know more about this because the union was, well, bad business for employees as well as the company, that it would cause trouble between the employees and the company and they wanted to have everything peaceable, did not want to have any trouble, * * The operatives were requested to keep in touch with the labor situation not only on petitioner’s premises, but also outside. At least two operatives were asked to-attend union meetings and to report upon them. One operative was asked to join the union at petitioner’s expense, and the chief, on one occasion, apparently when in high spirits, publicly boasted that he had undercover agents in the union who kept him in touch with everything the union was doing. In December, 1937, the union called a strike of petitioner’s St. Paul employees, which extended through the holidays, and was not successful. There is»no direct evidence that the petitioner actually used the information secured through its espionage system to influence or coerce any of its employees with respect to joining or not joining a union or with respect to wages or conditions of employment. The petitioner’s position is that proof of the use by an employer of a system of espionage to acquire information as to the union affiliations and union activities of his employees is not, standing alone, sufficient to establish a violation of § 8(1) of the Act, and that it only becomes sufficient when there.is other evidence to show that the system actually constituted an interference with the rights of the employees guaranteed by § 7 of the Act. The position of the Board is that proof of the use of such a system for such a purpose by an employer is in and of itself sufficient evidence to support a finding of a violation of § 8(1) of the Act, but that, even if it is not, other evidence in this case sustains the finding of the Board that the petitioner was guilty of a violation of that section. There was evidence in the record from which the Board might have found that the responsible officers of the petitioner did not actually use the information secured through the espionage system to interfere with the rights of its employees guaranteed by the act^ that in 1938 the petitioner discarded the system in so far as it touched upon union affiliations and activities of its employees, and that there was no likelihood of a resumption of the use of the system for procuring information about such matters. However, we think that the Board was not compelled to find noninterference with the employees’ rights, and was not precluded from finding that the use of the system which the Board found objectionable might recur. Compare Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 230, 59 S.Ct. 206, 83 L.Ed. 126. For the purposes of this opinion, we shall assume, without deciding, that proof of the maintenance by an employer of a system of espionage, one of the purposes of which is to secure information relative to-the attitude of his employees toward self-organization, joining a union, and kindred matters, is not alone sufficient to justify a finding that § 8(1) of the Act has been-violated by him. The Board in its decision expressed the opinion that such proof was,, alone, sufficient, but if its finding that petitioner violated § 8(1) is justified by the-evidence as a whole, we are satisfied that the order of the Board should be affirmed. In addition to proof of the existence of the espionage system and its use, there is-evidence, as already pointed out, that the chief of the system had a bias against the union, which he communicated to some of petitioner’s employees, and certainly to-those whom he engaged as operatives. The statements of the chief, before referred to, tended to characterize the system, in so far as it was used to gather information relative to the union affiliations and activities-of petitioner's employees, as one antagonistic to unionization. Moreover, from the-evidence that the chief of the system had openly stated that he had operatives in the union, the Board could reasonably infer that the employees could hardly be ignorant-of the existence of the system and of the interest of the petitioner in ascertaining their labor affiliations and activities. It is. scarcely conceivable, we think, that the statements of the chief of the system and the knowledge of the employees of the use-of the system to spy upon their union activities could have been without some effect, upon their freedom in the exercise of the rights guaranteed by § 7 of the Act. The petitioner contends that the statements of the chief antagonistic to the-unionization of the employees may not properly be charged against it, but should, be considered an expression of his personal views. He was, however, the supervisor of the system for petitioner, and it is not unreasonable to suppose that, as such, he: knew what information was desired by the petitioner and the purpose for which it was desired. It was his duty to instruct the employees who were acting as his operatives. His relation to the petitioner and the nature of his employment and duties were such that we think the Board was justified in concluding that his statements with respect to the unionization of the employees were attributable to petitioner. The distinction . between statements made by the head of an espionage system which are germane to the-business entrusted to him by the employer and the statements made by a supervisory employee working on a match machine, which were considered by this court in Cup-pies Co. Manufacturers v. National Labor Relations Board, 106 F.2d 100, 114-116, is too obvious to require discussion. The suggestion by petitioner that the order of the Board will prevent petitioner from using its system of espionage for the purposé of detecting thefts and irregularities of its employees, is clearly without merit. The order of the Board merely prevents the petitioner from using the system for the purpose of interfering with, restraining or coercing its employees in respect to the rights guaranteed by § 7 of the Act. Our conclusion is that, under the evidence, the question of whether the petitioner had violated § 8(1) of the Act is not a question of law for this court to decide, but was a question of fact for the Board to determine, and that its finding is conclusive upon the petitioner and upon this court. See and compare: National Labor Relations Board v. Fruehauf Trailer Co., 301 U.S. 49, 54, 57 S.Ct. 642, 630, 81 L.Ed. 918, 108 A.L.R. 1352; National Labor Relations Board v. Friedman-Harry Marks Clothing Co., 301 U.S. 58, 75, 57 S.Ct. 645, 630, 81 L.Ed. 921, 108 A.L.R. 1352; Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 230, 59 S.Ct. 206, 83 L.Ed. 126; Fort Wayne Corrugated Paper Co. v. National Labor Relations Board, 7 Cir., 111 F.2d 869, 874; Montgomery Ward & Co., Inc. v. National Labor Relations Board, 7 Cir., 107 F.2d 555, 558, 559; Link-Belt Co. v. National Labor Relations Board, 7 Cir., 110 F.2d 506, 511. The order of the Board will, as requested by it, be modified by eliminating therefrom all reference to placing the fifteen employees named in its order on a preferential list. As so modified, the enforcement of the order is directed. “Sec. 8. [§ 158], It shall be an unfair labor practice for an employer— w * * * * ^ * “(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: * * * .” “Sec. 8 [§ 158], It shall be an unfair labor practice for an employer— “(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [157 of this title]” “Sec. 7 [§ 157]. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of _ their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.” Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant? A. Food & Drug Administration B. General Services Administration C. Government Accounting Office (GAO) D. Health Care Financing Administration E. Immigration & Naturalization Service (includes border patrol) F. Internal Revenue Service (IRS) G. Interstate Commerce Commission H. Merit Systems Protection Board I. National Credit Union Association J. National Labor Relations Board K. Nuclear Regulatory Commission Answer:

songer_realapp

B

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine whether or not the formally listed appellants in the case are the "real parties." That is, are they the parties whose real interests are most directly at stake? (e.g., in some appeals of adverse habeas corpus petition decisions, the respondent is listed as the judge who denied the petition, but the real parties are the prisoner and the warden of the prison) (another example would be "Jones v A 1990 Rolls Royce" where Jones is a drug agent trying to seize a car which was transporting drugs - the real party would be the owner of the car). For cases in which an independent regulatory agency is the listed appellant, the following rule was adopted: If the agency initiated the action to enforce a federal rule or the agency was sued by a litigant contesting an agency action, then the agency was coded as a real party. However, if the agency initially only acted as a forum to settle a dispute between two other litigants, and the agency is only listed as a party because its ruling in that dispute is at issue, then the agency is considered not to be a real party. For example, if a union files an unfair labor practices charge against a corporation, the NLRB hears the dispute and rules for the union, and then the NLRB petitions the court of appeals for enforcement of its ruling in an appeal entitled "NLRB v Widget Manufacturing, INC." the NLRB would be coded as not a real party. Note that under these definitions, trustees are usually "real parties" and parents suing on behalf of their children and a spouse suing on behalf of their injured or dead spouse are also "real parties." NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WESTERN MEAT PACKERS, INC., Respondent. No. 8084. United States Court oí Appeals Tenth Circuit. Sept. 7, 1965. Margaret M. Farmer, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., and Melvin Pollack, Washington, D. C., were with her on the brief), for petitioner. Harold B. Wagner, Denver, Colo., for respondent. Before PHILLIPS, PICKETT and LEWIS, Circuit Judges. LEWIS, Circuit Judge. The National Labor Relations Board seeks enforcement of its order requiring respondent to bargain collectively with the Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 634, AFL-CIO, as the duly designated bargaining representative of respondent’s employees. The order provides for other customary remedial requirements and is based upon a Board finding that respondent violated section 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain collectively with the Union on or after April 25, 1963. Resistance to enforcement of the subject order is centered around the contention that the Union has never been validly designated as, and is not, the bargaining agent for respondent’s employees. Respondent is a processor of meat and meat products with principal place of business at Grand Junction, Colorado. On March 12, 1962, the Union filed a representation petition with the Regional Director of the Board seeking certification as the bargaining agent for respondent’s employees. Upon being informed by the Director that the Board lacked jurisdiction because respondent was engaged in purely intrastate business, this petition was withdrawn. The Union then filed a similar petition with the Industrial Commission of Colorado seeking, under the compulsion of the Colorado Labor Peace Act, an election to determine a collective bargaining representative. In compliance with the petition, the Colorado Commission conducted such Ian election on April 11,1962. The Union [lost this election. On July 2, 1962, respondent received a federal meat inspection license and thereafter made out of state sales in excess of $110,000 per annum, thus becoming engaged in interstate commerce on and after such date. However, in October 1962 the Union again petitioned the Colorado Industrial Commission to conduct an election pursuant to the provisions of the Colorado Labor Peace Act. Such election was held on October 30 and 31, 1962, the Union won, and on November 5, 1962, the Colorado Commission certified the Union as the bargaining representative for respondent’s employees. From November 29, 1962, until about September 16, 1963, the parties engaged in on-again off-again bargaining sessions and negotiated successfully upon some proposals. On the latter date (some two months after the last previous contact between the parties) respondent’s manager informed the Union that because the company was now engaged in interstate commerce, and for other reasons, a new election should be held and if the Union was successful a contract would be negotiated. The instant charge was almost immediately filed by the Union and, after a full hearing, the Board found that respondent had violated the National Labor Relations Act by refusing to bargain. The finding is dependent upon the validity of the Board’s conclusion that the Union was the lawful bargaining representative of respondent’s employees on and after October 31, 1962, the date of the second election conducted by the Colorado Industrial Commission. Although the National Labor Relations Act has provided a formal mode for selection and rejection of bargaining agents through Board conducted elections, it does not provide that a union’s majority status may not be established by other means. United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 71-72, 76 S.Ct. 559, 100 L.Ed. 941. The Board, accordingly, has credited the results of state-conducted elections where such elections contained no irregularities and were sheltered by procedural safeguards of secrecy and fairness. The West Indian Co., 129 NLRB 1203; Bluefield Produce & Provision Co., 117 NLRB 1660; Olin Mathieson Chemical Corp., 115 NLRB 1501; T-H Products Co., 113 NLRB 1246. In its present petition the Board proceeds from the premise that the second state-conducted election was properly managed and properly reflected the will of respondent’s employees and did, therefore, establish a bargaining agent which the Board could jurisdictionally recognize. We do not think the Board’s decision gives proper recognition to the mandate of See. 9(c) (3) of the Act which has fixed the spacing of elections. Section 9(c) (3) provides in pertinent part: “No election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held.” The first state election, conducted April 11, 1962, was admittedly valid both procedurally and jurisdiction-ally. Respondent was then engaged only in intrastate commerce and the Board had specifically denied its own jurisdiction because of that fact. But the second state election, conducted six months later, was valid only in the sense that it was fairly conducted and not in direct contravention of state law. This election was not held by agreement or consent. Nor was it jurisdictionally valid for respondent was then engaged in interstate commerce and exclusive jurisdiction of its labor relations lay in the National Labor Relations Act and with the Board. San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775; Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546; Garner v. Teamsters, Chauffeurs, etc. Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228. While the Board has at least once accorded validity, despite preemption, to a consent election conducted by an outside governmental agency (Department of Labor of the Virgin Islands) it has at the same time recognized the impact of Sec. 9(c) (3) in its decision, West Indian Co., 129 NLRB 1203, and has only accorded the same effect to the results of state elections as it would to an election conducted by the Board itself. T-H Products Co., 113 NLRB 1246. In the case at bar the second state election was not by consent but upon Union petition; and had that petition been directed to the Board it would have admittedly been denied as prohibited by the 12-month election spacing period compelled by Sec. 9(c) (3) after the first and valid election of April 11. We hold that the Board, having jurisdiction, cannot compel recognition of a bargaining agent selected without the parties’ consent through indirect procedures which the Board could not directly initiate under the provisions of the National Act. We also find wanting the argument of Board’s counsel that respondent has waived the right to question the effect of the state certification of the Union by bargaining with the Union. The de-cisión of the Board is not premised upon waiver but upon what we hold to be an erroneous conclusion that the second state election was valid. Nor does the record contain evidence of an intentional relinquishment of a known right; to the contrary, the alleged unfair labor practice occurred while respondent was unadvised by counsel and under the shadow of state compulsion. Enforcement is denied. . Now codified as 80-4-1 to 22, Colo.Rev.Statutes, 1963. . The Colorado Labor Peace Act provides in part: “The fact that one election has been held shall not prevent the holding of another election among the same group of employees, provided that it appears to the commission that sufficient reason therefor exists.” 80-4r-5(4), Colo.Rev. Statutes, 1963. Question: Are the formally listed appellants in the case the "real parties", that is, are they the parties whose real interests are most directly at stake? A. both 1st and 2nd listed appellants are real parties (or only one appellant, and that appellant is a real party) B. the 1st appellant is not a real party C. the 2nd appellant is not a real party D. neither the 1st nor the 2nd appellants are real parties E. not ascertained Answer:

songer_genapel1

G

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. Leo WALTON, Plaintiff-Appellant, v. ARABIAN AMERICAN OIL COMPANY, Defendant-Appellee. No. 291, Docket 23987. United States Court of Appeals Second Circuit. Argued March 15, 1956. Decided May 15, 1956. O’Neill, Higgins & Latto, New York City, John V. Higgins, New York City, of counsel, for plaintiff-appellant. Reilly & Reilly, New York City, for defendant-appellee. Before FRANK, LUMBARD and WATERMAN, Circuit Judges. FRANK, Circuit Judge. Plaintiff is a citizen and resident of Arkansas, who, while temporarily in Saudi Arabia, was seriously injured when an automobile he was driving collided with a truck owned by defendant, driven by one of defendant's employees. Defendant is a corporation incorporated in Delaware, licensed to do business in New York, and engaged in extensive business activities in Saudi Arabia. Plaintiff’s complaint did not allege pertinent Saudi Arabian “law,” nor at the trial did he prove or offer to prove it. Defendant did not, in its answer, allege such “law,” and defendant did not prove or offer to prove it. There was evidence from which it might have been inferred, reasonably, that, under well-established New York decisions, defendant was negligent and therefore liable to plaintiff. The trial judge, saying he would not take judicial notice of Saudi-Arabian “law,” directed a verdict in favor of the defendant and gave judgment against the plaintiff. 1. As jurisdiction here rests on diversity of citizenship, we must apply the New York rules of conflict of laws. It is well settled by the New York decisions that the “substantive law” applicable to an alleged tort is the “law” of the place where the alleged tort occurred. See, e. g., Conklin v. Canadian-Colonial Airways, Inc., 266 N.Y. 244, 248, 194 N.E. 692. This is the federal doctrine; see, e. g., Slater v. Mexican National Railroad Co., 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900. Cuba R. Co. v. Crosby, 222 U.S. 473, 32 S.Ct. 132, 56 L.Ed. 274. This doctrine is often said to be based on the motion that to hold otherwise would be to interfere with the authority of the foreign sovereign. It has been suggested that, where suit is brought in an American court by an American plaintiff against an American defendant, complaining of alleged tortious conduct by the defendant in a foreign country, and that conduct is tortious according to the rules of the forum, the court, in some circumstances, should apply the forum’s tort rules. See Morris, The Proper Law of a Tort, 64 Harv.L.Rev. (1951) 881, criticizing, inter alia, Slater v. Mexican National Railroad, 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900. There, and in 12 Modern L.Rev. (1949) 248, Morris decries, as “mechanical jurisprudence,” the invariable reference to the “law” of the place where the alleged tort happened. There may be much to Morris’ suggestion; and a court ■—particularly with reference to torts, where conduct in reliance on precedents is ordinarily absent—should not perpetuate a doctrine which, upon re-examination, shows up as unwise and unjust. Although in a diversity case a federal court must apply the “substantive” conflicts rules of the state in which the court sits, that duty perhaps does not require acceptance of state court decisions which are clearly obsolescent; see the concurring opinion of Mr. Justice Frankfurter in Bernhardt v. Polygraphic Co. Inc., 350 U.S. 198, 76 S.Ct. 273. But we see no signs that the New York decisions pertinent here are obsolescent. 2. The general federal rule is that the “law” of a foreign country is a fact which must be proved. However, under Fed.Rules Civ.Proc. rule 43(a), 28 U.S.C.A., a federal court must receive evidence if it is admissible according to the rules of evidence of the state in which the court sits. At first glance, then, it may seem that the judge erred in refusing to take judicial notice of Saudi Arabian “law” in the light of New York Civil Practice Act, § 344-a. In Siegelman v. Cunard White Star, 2 Cir., 221 F.2d 189, 196-197, applying that statute, we took judicial notice of English “law” which had been neither pleaded nor proved. Our decision, in that respect, has been criticized ; but it may be justified on the ground that an American court can easily comprehend, and therefore, under the statute, take judicial notice of, English decisions, like those of any state in the United States. However, where, as here, comprehension of foreign “law” is, to say the least, not easy, then, according to the somewhat narrow interpretation of the New York statute by the New York courts, a court “abuses” its discretion under that statute perhaps if it takes judicial notice of foreign “law” when it is not pleaded, and surely does so unless the party, who would otherwise have had the burden of proving that “law,” has in some way adequately assisted the court in judicially learning it. 3. Plaintiff, however, argues thus: The instant case involves such rudimentary tort principles, that the judge, absent a contrary showing, should have presumed that those principles are recognized in Saudi Arabia; therefore the burden of showing the contrary was on the defendant, which did not discharge that burden. But we do not agree that the applicable tort principles, necessary to establish plaintiff’s claim, are “rudimentary”: In countries where the common law does not prevail, our ■doctrines relative to negligence, and to a master’s liability for his servant’s acts, may well not exist or be vastly different. Consequently, here plaintiff had the burden of showing, to the trial court’s satisfaction, Saudi Arabian “law.” This conclusion seems unjust for this reason: Both the parties are Americans. The plaintiff was but a transient in Saudi Arabia when the accident occurred and has not been there since that time. The defendant company engages in extensive business operations there, and is therefore in a far better position to obtain information concerning the “law” of that country." But, under the New York decisions which we must follow, plaintiff had the burden. As he did not discharge it, a majority of the court holds that the judge correctly gave judgment for the defendant. 4. In argument, plaintiff’s counsel asserted that Saudi Arabia has “no law or legal system,” and no courts open to plaintiff, but only a dictatorial monarch who decides according to his whim whether a claim like plaintiff’s shall be redressed, i. e., that Saudi Arabia is, in effect, “uncivilized.” According to Holmes, J.—in Slater v. Mexican National R. Co., 194 U.S. 120, 129, 24 S.Ct. 581, 584, 48 L.Ed. 900, in American Banana Co. v. United Fruit Co., 213 U.S. 347, 355-356, 29 S.Ct. 511, 53 L.Ed. 826, and in Cuba R. Co. v. Crosby, 222 U.S. 473, 478, 32 S.Ct. 132—the lex loci does not apply “where a tort is committed in an uncivilized country” or in one “having no law that civilized countries would recognize as adequate.” If such were the case here, we think the New York courts would apply (and therefore we should) the substantive “law” of the country which is most closely connected with the parties and their conduct—in this case, American “law.” But plaintiff has offered no data showing that Saudi Arabia is thus “uncivilized.” We are loath to and will not believe it, absent such a showing. 5. The complaint in this action was filed on May 10, 1949. Pre-trial hearings were held before Judge Conger on December 2, 1952; January 7, 1953; March 31, 1953; and April 10, 1953. At these hearings the question of proving Saudi-Arabian law was discussed. When the case came on for trial on November 7, 1953 Judge Bicks indicated that in his view the burden was on the plaintiff to prove the foreign “law”. When the plaintiff’s counsel said that he was not prepared to prove the “law” of Saudi-Arabia, Judge Bicks proposed that the case be adjourned long enough to allow the plaintiff to prepare such proof. It was agreed that the case be put over for two days to enable the plaintiff to decide whether to request an adjournment for that purpose. When the hearing resumed on November 9, plaintiff’s counsel unequivocally took the position that he did not wish to prove the foreign “law” and wanted no adjournment. He chose to rely on the applicability of New York “law”. To that end he proposed that he proceed to present his case in order to make a record for appeal. The plaintiff’s evidence as to liability was presented and on a proper motion the judge dismissed the complaint. He specifically ruled that he would not take judicial notice of the “law” of Saudi-Arabia and that the plaintiff’s failure to prove that “law” required dismissal. Since the plaintiff deliberately refrained from establishing an essential element of his case, the complaint was properly dismissed. The majority of the court thinks that, for the following reasons, it is inappropriate to remand the case so that the plaintiff may have another chance: He had abundant opportunity to supply the missing element and chose not to avail himself of it. It does not appear whether Judge Bicks or counsel for the parties considered the application of Section 344-a of the New York Civil Practice Act. Since Judge Bicks specifically determined that he would not take judicial notice of the Arabian “law”, he must have considered that in some circumstances he might take judicial notice of foreign “law”. But in any event, as we have pointed out, it would have been an abuse of discretion under the New York cases to take notice of the foreign “law” here. The judgment of dismissal must therefore be affirmed. The writer of the opinion thinks we should remand for this reason: Apparently neither the trial judge nor the parties were aware of New York Civil Practice Act, § 344-a; consequently, in the interests of justice, we should remand with directions to permit the parties, if they so desire, to present material which may assist the trial judge to ascertain the applicable “law” of Saudi-Arabia. Affirmed. . Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. . See, e. g., American Banana Co. v. United Fruit Co., 213 U.S. 347, 356, 29 S. Ct. 511, 53 L.Ed. 826. A variant but related notion is that the foreign sovereign alone has the power to create a legal obligation resulting from an act done within the territory over which it has “jurisdiction”, and that, if that sovereign does create such an obligation, that obligation accompanies the person of the defendant everywhere. See, e. g., Western Union Telegraph Co. v. Brown, 234 U.S. 542, 547, 34 S.Ct. 955, 58 L.Ed. 1457; Loucks v. Standard Oil Co. of N. Y., 224 N.Y. 99, 120 N.E. 198. For criticisms of this view, see, e. g., Cook, The Logical and Legal Bases of the Conflict of Law (1942) 7, 311 et seq.; Dodd, 39 Hary.L.Rev. (1926) 533, 536-537. For a different view, see, e. g., Judge Learned Hand in Guiness v. Miller, D.C., 291 F. 768, 770; Direction der Disconto-Gesellschaft v. U. S. Steel Corp., D.C., 300 F. 741, 744. . Cf. Wightman, J., and Willes, J., in Scott v. Lord Seymour, 1 H. & C. 219, 233-234, 236, 158 Eng.Rep. 865, 871-873, cited in the dissenting opinion in Slater v. Mexican Nat. R. R. Co., 194 U.S. at page 132, 24 S.Ct. 581. . Cf. Stumberg, Conflict of Laws (1951), 201 et seq. . Note the reference in Cuba R. Co. v. Crosby, 222 U.S. 473, 480, 32 S.Ct. 132, 133, to parties who “enter into civil relations” and to a “rule * * * under winch the parties dealt.” Those phrases are awkward in their application to wliat we call torts. . See, e. g., Seavey, The Waterworks Gases and Stare Decisis, 66 Harv.L.Rev. (1952) 84; Cf. Denning, The Road to Justice (1955) 6, 92, 98. . Cf. Cooper v. American Airlines, 2 Cir., 149 F.2d 355, 359; Pierce v. Ford Motor Co., 4 Cir., 190 F.2d 910; Trowbridge v. Abrasive Co., 3 Cir., 190 F.2d 825. . Were this not a diversity case, it might perhaps be appropriate to suggest that the Supreme Court should reconsider the accepted doctrine (as to the complete dominance of the “law” of the place where the alleged tort occurred) which seems to have been unduly influenced by notions of sovereignty a la Hobbes. See Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 51 L.Ed. 834 (referring to Hobbes and Bodin), cited in American Banana Co. v. United Fruit Co., 213 U.S. 347, 358, 29 S.Ct. 511, 53 L.Ed. 826; cf. Jaffe, Book Rev., 66 Harv.L.Rev. (1953) 939, 941 as to the reification of the “notion of power.” . See, e. g., Black Diamond S.S. Corp. v. Robert Stewart & Sons, 336 U.S. 386, 396-397, 69 S.Ct. 622, 93 L.Ed. 754; Cuba R.R. Co. v. Crosby, 222 U.S. 473, 479, 32 S.Ct. 132, 56 L.Ed. 274; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788; U. S. v. Wiggins, 14 Pet. 334, 39 U.S. 334, 10 L.Ed. 481; Church v. Hubbart, 2 Cranch 187, 6 U.S. 187, 236-237, 2 L.Ed. 249; Liechti v. Roche, 5 Cir., 198 F.2d 174, 176; U. S. ex rel. Zdunic v. Uhl, 2 Cir., 137 F.2d 858, 861; Dickerson v. Matheson, 2 Cir., 50 F. 73, 76. . It reads, in part: “A. Except as otherwise expressly required by law, any trial or appellate court, in its discretion, may take judicial notice of the following matters of .law: “1. A law, statute, proclamation, edict, decree, ordinance, or the unwritten or common law of a sister state, a territory or other jurisdiction of the United States, or of a foreign country or political subdivision thereof. * * * “C. Where a matter of law specified in this section is judicially noticed, the court may consider any testimony, document, information or argument on the subject, whether the same is offered by counsel, a third party or discovered through its own research. “D. The failure of either party to plead any matter of law specified in this section shall not be held to preclude either the trial or appellate court from taking judicial notice thereof.” . Busch, When Law is Fact, 24 Fordham L.Rev. (1956) 646; cf. Sommerich and Busch, 38 Cornell L.Rev. (1953) 125; U. S. ex rel. Jelic v. District Director of Immigration, 2 Cir., 106 F.2d 14, 20; U. S. ex rel. Zdunic v. Uhl, 2 Cir., 137 F.2d 858. . For a different possible justification, see Busch, loe. cit. at 649. ■ An American court may go astray even in taking judicial notice of English “law.” The similarity in language may be deceptive by concealing significant differences. Indeed, just because the English language appears the same as the American language (although it is not), an American may understand the former less adequately than he understands German or French, which is more obviously “foreign” and different. See Anon X. Mous, The Speech of Judges, 29 Va.L.Rev. (1943), 625, 628. Moreover, the taken-for-granted, unexpressed, background assumptions of English judges and lawyers differ from the unspoken assumptions of American judges and lawyers, and thus may well induce serious misunderstandings. Holmes, J., noted the baffling character of such tacit assumptions in a foreign system like that of Puerto Rico; see Diaz v. Gonsolez, 261 U.S. 102, 105-106, 43 S.Ct. 286, 67 L.Ed. 550. Tacit English assumptions may be even more baffling to an American. . For criticism of this narrow interpretation, see Nussbaum, Proving the Law of Foreign Countries, 3 Am.J. of Comp.Law (1954) 60-62; cf. Nussbaum, The Problem of Proving Foreign Law, 50 Tale L.J. (1941) 1018, 1023. . Greiner v. Freund, 286 App.Div. 996, 144 N.Y.S.2d 766; Arams v. Arams, 182 Misc. 328, 45 N.Y.S.2d 251; see also the articles cited in note 8, supra. . Sonnesen v. Panama Transport Co., 298 N.X. 262, 82 N.E.2d 569; Berg v. Oriental Consol. Mining Co., Sup., 70 N.Y.S.2d 19. . Cuba R. Co. v. Crosby, 222 U.S. 473, 478, 32 S.Ct. 132, 56 L.Ed. 274; Industrial Export & Import Corp. v. Hongkong & Shanghai Banking Corp., 302 N.Y. 342, 349-350, 98 N.E.2d 466; Ehag Eisenbahnwerte H.A. v. Banca Nat., 306 N. Y. 242, 249, 117 N.E.2d 346; Arams v. Arams, 182 Misc. 328, 45 N.Y.S.2d 251. . See Arams v. Arams, 182 Misc. 328, 45 N.Y.S.2d 251, and the other cases cited in the preceding footnote; see also Whitford v. Panama R. Co., 23 N.Y. 465; Crashley v. Press Pub. Co., 179 N.Y. 27, 32-33, 71 N.E. 258; E. Gerli & Co. v. Cunard SS Co., 2 Cir., 48 F.2d 115, 117; Ozanic v. U. S., 2 Cir., 165 F.2d 738, 744. . See Nussbaum, 3 Am.J. of CompXaw (1954) 60, 62; Nussbaum, 50 Yale L.J. (1941) 1018, 1043. . Cf. Dicey, Conflict of Laws (2d ed.) 726, cited in American Banana Co. v. United Fruit Co., 213 U.S. 347, 356, 29 S.Ct. 511, 53 L.Ed. 826. The latest or 6th edition of Dicey (1949) 805 repeats the statement. . This is in line with the idea that the “proper law” is that of the place of paramount contacts, as to which see Cheatham, Goodrich, Griswold and Reese, Cases and Materials on Conflict of Law (3d ed., 1951) 420 et seq.; cf. 204, 239-240; Cavers, A Critique of The Choice of Law Problem, 47 Harv.L.Rev. (1933) 173, 191-193. As the tort rules, pertinent here, of New York, Delaware and Arkansas are doubtless substantially similar, there would be no need to choose one or the other. . Estho v. Lear, 7 Pet. 130, 32 U.S. 130, 8 L.Ed. 632; Ford Motor Co. v. N. L. R. B., 305 U.S. 364, 373, 59 S.Ct. 301, 83 L.Ed. 221; U. S. v. Rio Grande Dam & Irrigation Co., 184 U.S. 416, 423-424, 22 S.Ct. 428, 46 L.Ed. 619; Porter v. Leventhal, 2 Cir., 160 F.2d 52, 59 and oases there cited; Benz v. Celeste Fur Dyeing & Dressing Corp., 2 Cir., 136 F.2d 845; Nachman Spring-Filled Corp. v. Kay Mfg. Co., 2 Cir., 139 F.2d 781, 787. See also Usatorre v. The Victoria, 2 Cir., 172 F.2d 434; Sonnesen v. Panama Transport Co., 298 N.Y. 262, 267, 82 N.E.2d 569; Sommerich, 4 Am.J. of Comp.Law (1955) 453. . Or that it has no “civilized” legal system ; see point 4 of the text, supra. Nussbaum, 3 Am.J. of Comp.Law (1954) 60, 63-64—criticising Usatorre v. The Victoria, 2 Cir., 172 F.2d 434 points to an important fact; the prohibitive expense to a party of modest financial means in obtaining an expert to explain foreign “law.” Subsequently (pp. 66-67), Nussbaum suggests that the trial judge call his own expert; the judge, says Nussbaum, would require the parties to advance the expert’s fee, or, “if this is not feasible, the court (hence eventually the losing party), may be charged with the fee as part of the court’s business.” But, as matters now stand, this solution is not feasible: In a federal criminal case, a trial judge may call upon his own expert whom the government will pay; see Criminal Rule 28, 18 U.S.C.A. However, in a civil case (at any rate, one to which the government is not a party) the government has no authority to pay an expert; and the use of the device of taxing the expert’s fee as part of the costs to the losing party may be beyond the judge’s power (absent a statute); in any event, the expert will go unpaid if the losing party has not the funds to pay such costs. In the instant case, a letter from Hon. Raymond T. Yingling, Assistant Legal Adviser of the U. S. Department of State, suggests to the writer that, with little or no expense, the parties probably could procure some information as to the pertinent legal rules of Saudi Arabia; perhaps, also, further information could be procured without expense from officials of The United Nations. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

songer_usc1sect

4231

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Fred FLOYD, Appellant, v. UNITED STATES of America, Appellee. No. 10247. United States Court of Appeals Fourth Circuit. Argued March 11, 1966. Decided May 4, 1966. C. S. Bowen and Robert A. Clay, Green-ville, S. C., for appellant. Jerome I. Chapman, Atty., Dept, of Justice (Richard M. Roberts, Acting Asst. Atty. Gen., Meyer Rothwacks and George F. Lynch, Attys., Dept, of Justice, and John C. Williams, U. S. Atty., and James D. McCoy, III, Asst. U. S. Atty., on brief), for appellee. Before SOBELOFF and J. SPENCER BELL, Circuit Judges, and J. BRAXTON CRAVEN, Jr., District Judge. SOBELOFF, Circuit Judge: An action was brought against the United States by Fred Floyd to restrain the collection of certain cabaret taxes, to remove the assessment against him therefor, and to release his property from seizure and threatened sale thereunder. Floyd’s complaint recites that the cabaret, the operation and ownership of which gives rise to a tax obligation, is in fact owned solely by his wife, and that he is not in any way financially involved in the enterprise. The District Court granted the Government’s motion to dismiss, relying on section 7421(a) of the Internal Revenue Code of 1954, which reads: “Except as provided in sections 6212(a) and (c) and 6213(a) [which are not here relevant], no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” 26 U.S.C.A. § 7421(a). We agree with the District Court that dismissal is compelled under the Supreme Court’s interpretation of section 7421(a) in Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). There the Court was dealing with a suit by an employer to restrain the collection of social security taxes and unemployment taxes asserted by the Government to be due. The employer claimed that there was no employment relationship to which the taxes could apply. In reversing the lower courts’ grant of injunctive relief, the Supreme Court declared that a suit by an allegedly delinquent taxpayer to enjoin the collection of taxes must be dismissed for want of jurisdiction unless “it is clear that under no circumstances could the Government ultimately prevail.” 370 U.S. at 7, 82 S.Ct. at 1129. In the instant case the District Court concluded, and we concur, that it is not at all clear that the Government will ultimately fail to establish that the tax liability arising from the operation of the cabaret attaches to Mr. as well as Mrs. Floyd. Appellant nevertheless presses the contention that he is a non-taxpayer, and therefore outside the proscription against suits for injunctive relief embodied in section 7421(a). Floyd does not dispute that the taxes assessed are valid taxes and are owed by the owner of the cábaret, but denies that he has any interest in the cabaret upon which tax liability could lawfully be predicated as to him. In response to this contention it is sufficient to say that this is precisely the issue that should be resolved in the ordinary channels of tax litigation. Falik v. United States, 343 F.2d 38 (2d Cir. 1965), (injunctive relief denied where plaintiff sought to contest the Government’s determination that she was a responsible officer of a tax-delinquent corporation). See also Cooper Agency, Inc. v. McLeod, 235 F.Supp. 276 (E.D.S.C.1964), aff’d per curiam, 348 F.2d 919 (4th Cir. 1965); Broadwell v. United States, 234 F.Supp. 17 (E.D.N.C.1964), aff’d per curiam, 345 F.2d 470 (4th Cir. 1965); Quinn v. Hook, 231 F.Supp. 718 (E.D.Pa.1964), aff’d per curiam, 341 F.2d 920 (3d Cir. 1965). This is not a case where a property owner under no tax assessment is seeking to enjoin the Government from seizing his property to satisfy the tax obligation of another. Cf. Raffaele v. Granger, 196 F.2d 620 (3d Cir. 1952); Adler v. Nicholas, 166 F.2d 674 (10th Cir. 1948). See also Shelton v. Gill, 202 F.2d 503, 506 (4th Cir. 1953). Where no tax deficiency has been asserted against one whose property is seized, a suit against the Government for injuncfive relief seems peculiarly appropriate, for the aggrieved party, not being an alleged tax delinquent, would have no opportunity in the ordinary channels of tax litigation to contest the validity of the Government’s assessment. With respect to Mr. Floyd, however, his complaint shows on its face that the Government has made a levy against him for a deficiency, and we cannot say that this is an exaction merely in “the guise of a tax.” Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 7, 82 S.Ct. 1125 (1962). The Order of the District Court is Affirmed. . 26 U.S.C.A. § 4231. . A complete statement of the Court’s conclusion follows: “The manifest purpose of § 7421(a) is to permit the United States to assess and collect taxes alleged to he due without judicial intervention, and to require that the legal right to the disputed sums he determined in a suit for refund. In this manner the United States is assured of prompt collection of its lawful revenue. Nevertheless, if it is clear that under no circumstances could the Government ultimately prevail, the central purpose of the Act is inapplicable and, * * * the attempted collection may he enjoined if equity jurisdiction otherwise exists. In such a situation the exaction is merely in ‘the guise of a tax.’ * * * “We believe that the question, of whether the Government has a chance of ultimately prevailing is to be determined on the basis of the information available to it at the time of suit. Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained. Otherwise, the District Court is without jurisdiction, and the complaint must be dismissed.” 370 U.S. at 7, 82 S.Ct. at 1129. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number. Answer:

songer_treat

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. NATIONAL INDIAN YOUTH COUNCIL, a Non-profit N.M. Corp.; Martha Begay; Redhorse Begay; Keenashan Begay; Oscar Begay; Nancy Begay; Gabriel Bitsui; Louise LaMone; Eugene LaMone; Marie Smith; Priscilla Yazzie; Nakai Yazzie; Frank Bitsui and Alice Bitsui, Plaintiffs-Appellants, v. Cecil D. ANDRUS; Forrest Gerald; Keith Higginson; Vincent E. McKelvey and William T. Whalen, Defendants-Appel-lees, El Paso Natural Gas Company and Consolidation Coal Company, Intervenors-Defendants. No. 80-1492. United States Court of Appeals, Tenth Circuit. Argued June 20, 1980. Decided June 27, 1980. John Kelly, Albuquerque, N. M. (Lueb-ben, Hughes & Kelly, Albuquerque, N. M., was with him on briefs), for plaintiffs-appellants. Jerry Jackson (David C. Cannon, Jr., Atty., Dept, of Justice, Washington, D. C., was with him on briefs), for defendants-ap-pellees. Victor R. Ortega, Albuquerque, N. M. and D. Alan Rudlin, Richmond, Va. (Montgomery & Andrews, William Clint Parsley, Santa Fe, N. M, Hunton & Williams and T. S. Ellis, III, Richmond, Va, were with them on briefs), for intervenors-defendants. Before SETH, BREITEN STEIN and SEYMOUR, Circuit Judges. PER CURIAM. This appeal under 28 U.S.C. § 1292(a)(1) attacks the denial of a preliminary injunction by the United States District Court for the District of New Mexico. The controversy concerns the validity of a lease by the Navajo Nation for coal mining operations on the Navajo Reservation. The plaintiffs are 12 individual Navajo Indians and the National Indian Youth Council, a nonprofit organization. The defendants are the Secretary of the Interior and various officials of the United States Department of the Interior. The lessees, Consolidation Coal Company and El Paso Natural Gas Company, hereafter ConPaso, were permitted to intervene. The complaint alleges that in approving the lease, the Secretary violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; the National Historic Preservation Act of 1966,16 U.S.C. § 470 et seq.; Executive Order No. 11593 (1971); and the Historic and Archeological Data Preservation Act of 1974, 16 U.S.C. § 469 et seq. The plaintiffs seek a declaratory judgment that the lease is void and injunctive relief. The Navajo Nation has not been joined as a party in the case. The trial court held extensive evidentiary hearings. A temporary restraining order was granted and extended once. The court denied a preliminary injunction and injunc-tive relief pending appeal. On the motion of the plaintiffs-appellants, we granted a temporary injunction pending appeal and required briefing on the question of the continuance of that injunction. The appel-lees, intervenors-defendants, moved for the dissolution of the temporary injunction. Comprehensive briefs have been filed on the question of the continuance or dissolution of the temporary injunction pending appeal, and the matter has been argued orally. We deny the request of the plaintiffs-appellants for the continuance of the injunction and grant the motion of the in-tervenors-defendants, supported by the federal officials, for the dissolution of the temporary injunction pending appeal. The case is not before us on the merits. The determination of a motion for a preliminary injunction and a decision on the merits are different. Penn v. San Juan Hospital, Inc., 10 Cir, 528 F.2d 1181, 1185; and Valdez v. Applegate, 10 Cir, 616 F.2d 570, 572. The factors for consideration in deciding whether an appellate court should stay the operations under the lease are (1) likelihood of success on the merits, (2) harm to the petitioners, (3) harm to the respondents, and (4) harm to the public interest. See Battle v. Anderson, 10 Cir, 564 F.2d 388, 397, and Associated Securities Corp. v. SEC, 10 Cir, 283 F.2d 773, 775. We express no opinion on the likelihood of success on the merits. We are confronted with a lengthy and complex record containing, among other things, two Environmental Impact Statements and one Environmental Assessment filled with expert opinions on diverse technical subjects relating to mining, grazing, reclamation of land, archeology, paleontology, and other esoteric subjects. An evaluation of these issues must await an appeal from the trial court’s decision on the merits. We confine our discussion to the other three factors. The trial court found: “33. It is planned that mining in the ConPaso project will take place in small and discrete increments over the course of 38 years, with reclamation occurring simultaneously as mining ceases in each small area. 34. The first year of mining will produce 250,000 to 300,000 tons of coal and require disturbance of an eight-acre area. Fifty-seven (57) additional acres will be required for roads, sediment ponds, temporary spoil placement and facilities.” Respondents assure us that the operations for the first year will encompass mining only from the mentioned eight-acre tract. The record is devoid of any proof of harm to the individual plaintiffs during the first year of mining. The trial court found that one plaintiff has a grazing permit in what is known as the “North Area” where mining will not occur for five years. Finding No. 57. The dissolution of the stay will not harm any of the individual plaintiffs. The next factor is harm to the defendants and intervenors. The trial court held that ConPaso, as of January 2,1980, has invested $33.8 million in the project. Finding No. 58. The intervenors represent to us, without contradiction in the record, that the continuation of the temporary injunction will cause them a loss of about $17,000 a day. On the record the showing of harm to the intervenors is impressive. The fourth factor is the public interest. The Navajo Nation benefits from the lease. The Court found that the Navajo Nation will receive approximately $4.58 billion in revenues from the activities of ConPaso. In the first year of mining the Nation will receive about $709,000 in royalties. Additionally, members of the Navajo Tribe will have needed opportunities of employment available through the ConPaso project. Finding No. 61. The harm to the Navajos is real. We take judicial notice of the energy problems confronting the United States. The government encourages the production of coal. The ConPaso operation will add to that production. The public interest will be served by permitting the project to go forward. This interest must be balanced against the public interest in protecting the environment. Determination of where that balance lies should await decision of the controversy on the merits. We believe that the possibility of environmental damage is presently minimized by ConPaso’s restriction of its mining operations to eight acres for the next year. On consideration of the pertinent factors, the temporary stay which we granted on May 15, 1980, is dissolved. We do not dismiss the appeal but further proceedings on the appeal will be abated until further order of this court. The district court shall go forward with disposition of the case on the merits. We urge that it do so with all convenient speed. When, and if, a final judgment on the merits is entered and an appeal is taken to this court, we will determine what further proceedings shall be taken in the instant case. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:

songer_appfed

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellant, v. Roberto RAMIREZ, Defendant-Appellee. No. 88-1036. United States Court of Appeals, Seventh Circuit. Submitted Jan. 8, 1988. Decided Jan. 14, 1988. Opinion March 25, 1988. Victoria J. Peters, Deputy Chief U.S. Atty. (Anton R. Valukas, U.S. Atty.), Chicago, Ill., for plaintiff-appellant. Donald I. Bierman, Bierman, Shohat & Loewy, P.A., Miami, Fla., for defendant-ap-pellee. Before WOOD, CUDAHY, and POSNER, Circuit Judges. PER CURIAM. On January 14 we reversed the district court’s order, 840 F.2d 20, releasing the defendant on bond pending trial, and noted that an opinion explaining the grounds of our decision would follow. This is the opinion; and in it we modify our decision to make clear that Judge Moran is free to give further consideration to the defendant’s request to be released pending trial. Last summer the government seized a large shipment of cocaine (more than two tons, said to have a retail value of $200 million) in Chicago, and later indicted Roberto Ramirez on charges of possessing with intent to distribute, and conspiring to distribute, the cocaine. The government believes that the role of Ramirez — a wealthy man who came to this country from Cuba in 1979 and is now an American citizen living in Florida — in the conspiracy is to receive massive shipments of cocaine (of which the shipment seized was but one) from Colombia and then arrange for the cocaine to be shipped to distributors in Chicago and elsewhere. The government contends that if released on bond pending trial (which is scheduled to begin on March 8), Ramirez both will be likely to flee and will be a danger to the community. The district judge disagreed and ordered Ramirez released upon the posting of a $1 million bond secured by real estate and other assets of Ramirez and his family and friends. The government appeals. We are not disposed to quarrel with the district judge’s determination that Ramirez is unlikély to flee. The judge found persuasive the willingness of eight friends of Ramirez’s, all of good reputation, to pledge their homes as security for his bond. But even if he poses no risk of flight, Ramirez must be detained pending trial if there is “no condition or combination of conditions [that] will reasonably assure [his] appearance [at trial] ... and the safety of the community”; and the absence of such condition or combination of conditions is presumed because there is probable cause to believe that Ramirez has committed a drug offense that carries a maximum punishment of ten years or more in prison. Bail Reform Act of 1984, 18 U.S.C. § 3142(e). The legislative history of the Bail Reform Act indicates that an “espe-dally significant” consideration in determining danger to the community “is the drug network’s ability to continue to function while the defendant awaits trial.” United States v. Portes, 786 F.2d 758, 765 (7th Cir.1985); see S.Rep. No. 225, 98th Cong., 2nd Sess. 12 (1983), U.S.Code Cong. & Admin.News 1984, p. 3182. Ramirez is alleged to be a key figure in a vast international drug conspiracy which, so far as appears, continues to operate despite his arrest and the seizure of one of its drug shipments; one indication (albeit speculative, as Ramirez points out) is the unsolved murder a short time ago of an uncle of a conspirator who decided to cooperate with the prosecution. “Persons charged with major drug felonies are often in the business of importing or distributing dangerous drugs, and thus, because of the nature of the criminal activity with which they are charged, they pose a significant risk of pretrial recidivism.” S.Rep. No. 225, supra, at 20, U.S.Code Cong. & Admin.News 1984, p. 3203. This description seems to fit Ramirez exactly. Yet all the district judge said on this score was that “the seizure of 5,000 pounds of cocaine, would lead one reasonably to believe that the loss of that kind of capital that means [means that?] people aren’t really in a position to go forward even if the government is right in what it is charging.” This is tantamount to saying that the larger the seizure of illegal drugs, the stronger the case for release on bond pending trial. The fact that a large amount of drugs was seized cannot be conclusive evidence that the conspiracy is crippled, when there is no indication that the seizure was large in relation to the conspiracy’s resources. The size of the shipment and the arrest of Ramirez may demonstrate not that the criminal enterprise has been enfeebled but only that it is of such magnitude as to retain the power to continue to do substantial harm, if perhaps less than before the seizure. The record compiled in connection with the bail proceedings is substantial and it is possible that there are other grounds for concluding that Ramirez does not pose a danger to the community. But Judge Moran did not articulate any other grounds; the mere size of the seizure and the conjectured interference with the ability of the conspiracy to continue to operate are not adequate. The order of release must therefore be vacated, and the matter returned to Judge Moran for further proceedings consistent with this opinion. VACATED AND REMANDED. Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:

songer_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". In re ENTLER. ENTLER v. SECURITY-FIRST NAT. BANK OF LOS ANGELES et al. No. 8713. Circuit Court of Appeals, Ninth Circuit. June 29, 1938. Nathan Newby, Dee Holder, and Charles Ryland Newby, all of Los Angeles, Cal., for appellant. Farrand & Slosson, George E. Farrand, and Leonard B. Slosson, all of Los Angeles, Cal., for appellees. Before DENMAN, MATHEWS, and HEALY, Circuit Judges. DENMAN, Circuit Judge. This is an appeal from an order of the district court confirming an order of the referee which denied appellant’s petition for confirmation of an extension proposal under § 74 of the Bankruptcy Act, 11 U.S.C.A. § 202. Cora M. Entler, debtor, filed a petition in the district court under the above statute (which provides for relief of noncorpo-rate debtors without bankruptcy adjudication) alleging that she was unable to meet her debts as they matured. She showed assets valued by her considerably in excess of her liabilities. Her only secured creditor is the appellee here, Security-First National Bank of Los Angeles, which held a note secured by a trust deed, the obligation including principal and interest amounting to $18,509.67. Both principal and interest were in default, as were also taxes on the secured property. The petition was approved as properly, filed and all proceedings against the debtor were stayed. The debtor then attempted to secure the consent of a majority of creditors to an extension proposal. Failing to obtain it, she submitted a proposal for extension under § 74(e), 11 U.S.C.A. § 202 (e) : “[If] the debtor fails to obtain the acceptance of a majority in number of all creditors whose claims are affected by an extension proposal * * * the debtor may submit a proposal for an extension including a feasible method of financial rehabilitation for the debtor which is for the best interest of all the creditors, including an equitable liquidation for the secured creditors whose claims are affected.” Section 74(g), 11 U.S.C.A. § 202(g) provides: “The court shall confirm the proposal if satisfied that (1) it includes an equitable and feasible method of liquidation for secured creditors whose claims are affected and of financial rehabilitation for the debtor; (2) it is for the best interests of all creditors; (3) that the debtor has not been guilty of any of the acts, or failed to perform any of the duties, which would be a ground for denying his discharge; and (4) the offer and its acceptance are in good faith * * The plan submitted by the debtor was rejected by the referee and the court on the grounds that (1) it was not for the best interest of all the creditors, and (2) “it did not provide for an equitable liquidation for the secured creditor [appellee Security-First National Bank] whose claim was affected thereby”. The sole question on this appeal, therefore, is whether the appellant has sustained her burden of proof that this determination of the referee and the district judge was erroneous. A brief survey of the conditions of the debtor and her proposed plan will demonstrate that such burden has not been sustained. The debtor’s petition showed liabilities as follows: The secured note to appellee Security-First National Bank in the principal amount of $15,000, executed June 20, 1931, due June 20, 1934, with interest at 7 percent from date of maturity (by July 1936, the time of the commencement of these proceedings none of .the principal had been paid, and unpaid interest had brought the total obligation to $18,-509.97) ; unpaid taxes on the property securing this note, in the sum of $2,200; and an unsecured note to the Bank of America of $3,000. Total liabilities thus amounted to $23,709.67. For assets, the debtor had (1) $1,250 in cash; (2) a lot and dwelling house occupied by debtor and her husband, which property was security for appellee Bank’s deed of trust. Debtor estimated it to be worth $45,000. It was producing no income. (3) Two parcels of income property estimated by debtor to be worth $17,500, and which were producing an income of $90 per month. In addition to these assets totaling (according to the debtor) over $60,000, and almost three times as much as her liabilities, she stated in her proposed plan of extension that her husband owned property which he would be willing to sell or borrow'.on in order to pay debtor’s obligations. The husband consented to this plan. However, at the time of the present hearing before the referee the debtor’s husband had filed a petition under § 75 of the Bankruptcy Act, 11 U.S.C.A. § 203, on his own behalf. The plan proposed by the debtor provided first that the time for payment of all indebtedness be postponed to September 23, 1939. During the interim the debtor’s husband was to be made trustee of all the .property with power to manage, lease, and sell. The $1,250 cash was to be paid to the trustee, $250 for part payment of $2,200 back taxes on the property covered by the appellee’s trust deed and the remainder to back payments of interest on the secured obligation. The income from all the properties under the control of the trustee was to be paid, first to expenses of administration, including $50 per month compensation to debtor’s husband as trustee, next to payments of interest on secured obligations, then to attorney’s fees for debtor’s attorneys, then to payment of the principal on the secured obligation to the appellee Security-First National Bank, then to unsecured creditors and finally (and somewhat optimistically) “the balance to Cora M. Entler, the debtor herein”. The referee found that there was no showing of income from or funds from the sale of the properties of debtor and her husband sufficient or certain enough to warrant a belief that the appellee Bank herein would be paid by the expiration of the proposed extension period. Inasmuch as'the evidence is. not set out in the record, save for a two page referee’s summary, we cannot review these findings. What does appear from the record and admissions in the brief of appellant fully supports the finding. The only figure as to definite income from the property is $90 per month, a sum obviously insufficient to pay the secured creditor any substantial amount of its claim by September 23, 1939. As to a potential sale of the property or a portion thereof, the debtor admits that her properties are “frozen assets”. Nothing in the evidence warrants a hypothesis that they will not continue to be “frozen” for years to come. The statute requires a plan for “equitable liquidation for the. secured creditors whose claims are affected”. Postponement of payment on a claim already two years overdue when this proceeding was commenced on July 6, 1936, for a period of three years longer, with no assurance of payment even at the end of the three years, is not only a failure of “equitable liquidation”; it is no liquidation at all. Cf. Provident Mutual Life Ins. Co. v. University Evangelical Lutheran Church of Seattle, 9 Cir., 90 F.2d 992. As a further ground for reversal; appellant contends that her liability on the secured note to appellee is based on her accommodation indorsement of her husband’s note to the Bank. She argues from this that a stay of proceedings against her husband,- which had been granted in response to his petition under § 75, should apply to her-as well. We do not pass upon the point of law presented inasmuch as it does not appear from the record that the debtor was an accommodation indorser, or liable to the appellee Bank on the note in any capacity other than principal. Affirmed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:

sc_certreason

A

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. UNITED STATES v. SINGER MANUFACTURING CO. No. 438. Argued April 25, 29, 1963. Decided June 17, 1963. Daniel M. Friedman argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Loevinger, Robert B.. Hummel.and Les J. Weinstein. Arthur E. Pettit argued the cause for appellee. With him on the brief were Edwin J. Wesely, Terence H. Ben-bow and Edward A:Miller. Mr. Justice Clark delivered the opinion of the Court. This is a direct appeal from the judgment of the United States District Court for the Southern District of New York, 205 F. Supp. 394, dismissing a civil antitrust action brought by the United States against the Singer Manufacturing Company to prevent and restrain alleged violations of §§ 1 and 2 of the Sherman Act, 15 U. S. C. §§ 1 and 2. The complaint alleged that Singer combined and. conspired with two competitors, Gegauf. of Switzerland and Vigorelli of Italy, to restrain and monopolize and that Singer unilaterally attempted to monopolize interstate and foreign trade in the importation, sale and distribution of household zigzag sewing machines. The District Court dismissed after an extended trial, concluding that the charges were.without merit. The United States appealed under § 2 of the Expediting Act, 15 U. S. C. § 29, but has abandoned its claim as to attempted monopolization. We noted probable jurisdiction in light of the fact that unless we did so the parties would be deprived of any appellate review in the case. 371 U. S. 918. , We have examined the record (1,723 pages) in detail, as is necessary in these direct appeals, and upon consideration of it, as well as the briefs and argument of counsel, have concluded that there was a conspiracy to exclude Japanese-competitor^ in household zigzag sewing machines and that the judgment must be reversed. I. The details of the facts are long and complicated. The amended and corrected opinion of the District Court includes not only a description of the sewing machines involved and their operation but also an analysis of the' patents covering them. We shall, therefore, not relate the facts in detail but satisfy ourselves with the overriding ones. A. As the District Court stated, this action “concerns only the United States trade and commerce arising from the importation into the United States of a particular type of household sewing machine known as the ‘machine-carried multicam zigzag, machine.’ ” 205 F. Supp., at 396. The zigzag stitch machine produces various ornamental and functional zigzag stitches as well as straight ones. 'The automatic multicam zigzag machine, unlike the' manually operated zigzag and the replaceable cam machine, each of which requires hand manipulation or insertion, operates in response to the turning of a knob or dial on the exterior of the machine. While the multicam machines involved here function in slightly different ways, all are a variant of the same basic principle. B. Singer is the sole United States manufacturer of household zigzag sewing machines. In addition to the multicam variety at issue here, it produces replaceable cam machines but • not the manually operated zigzag. Singer sells these machines in this country through a wholly owned subsidiary and in various foreign countries through independent distributors. Singer’s sales comprised approximately' 61.4% of all domestic sales in multicam zigzag machines in the United States in 1959. During the same year some 22.6% were imported from Japan and about 16% from Europe. In 1958 Singer’s percentage was 69.6%, Japanese imports 20.7% and European imports 9.7%. Further, Singer’s 1959 and 1960 domestic sales of multicam machines amounted to approximately $46 million per year, in each of which years such sales accounted for abóut 46% of all its domestic sewing machine sales. C. It appears that Singer by April 29, 1953, through its experimental department, had completed a design of a multiple cam zigzag mechanism in what it calls the Singer “401” machine. It is disclosed in Singer’s Johnson Patent. In 1953 Singer was also developing its Perla Patent as used in its “306” replaceable cam machine and in 1954 its “319” machine-carried multiple cam machine. In September of 1953 Vigorelli, an Italian corporation, introduced in the United States a sewing machine incorporating a stack of cams with a single follower. Singer concluded that Vigorelli had on file applications covering its machine in the various patent offices in the world and that the Singer design would infringe. On June 10, 1955, Singer bought for $8,000 a patent disclosing a plurality of cams with a single cam follower from Garl Harris, a Canadian. It was believed that this patent, filed June 9, 1952, might be reissued with claims covering the Singer 401 as well as its 319 machine, and that the reissued patent would dominate the Vigorelli machine as well as a Japanese one introduced into the United States in September 1954 by Brother International .Corporation. Thereafter Singer concluded that litigation would result between it and Vigorelli unless a cross-licensing agreement. could be made, and this was effected on November 17, 1955. The license was nonexclusive, world-wide and royalty free. The trial court found that Singer’s only purpose was to effect a cross-licensing, but certain correspondence does cast some shadow upon these negotiations. . The agreement also contained provisions by which each of the parties, agreed not to bring any infringement action against the other- “in any country” or institute against the other any> opposition, nullity or invalidation proceedings in any country. In accordance with this agreement Singer withdrew its opposition to Vigorelli’s patent application in Brazil and Vigorelli later (1958) abandoned a United States interference to the Johnson application which cleared the way for the Johnson Patent to issue on December 2 of that year. D. While Singer was negotiating the cross-license agreement. with Vigorelli it learned that Gegauf, a Swiss corporation, had a patent covering a multiple cam mechanism. • This placed an additional cloud over Singer’s Harris reissue plan because the Gegauf patent enjoyed an effective priority date in Italy of May 31, 1952. This was nine days earlier than Singer's Harris patent filing date in the' United States. In December 1955 Singer learned that Gegauf' and Vigorelli had entered a cross-licensing agreement covering their multiple cam patents similar to the Vigorelli-Singer agreement. In January 1956 Singer found that Gegauf had pending an application in the United States Patent Office and assumed that it was based on the same priority date, i. e., May 31,1952. If this was true Singer could use its Harris reissue patent only to oppose through interference the allowance of broad claims to Gegauf. It therefore made preparation to negotiate with Gegauf, first approaching Vigorelli in order to ascertain how the latter had induced Gegauf to grant him a royalty-free license and drop any claim of infringement. Singer made direct arrangements for a conference with Gegauf for April 12, 1956, and the license agreement was made April 14, 1956. The setting for this meeting was that Gegauf had a dominant Swiss patent with applications in Germany, Italy, and the United States-all prior to Singer, in addition, Singer’s counsel had examined Gegauf’s Swiss patent and advised that it was valid. Singer opened conversation with indications of coming litigation on the Harris patent, concealing the Johnson and Perla applications. Gegauf felt secure in his patent claims but insecure with reference to the inroads the Japanese machines were making on the United States market. It was this “lever” which Singer used to secure the license, pointing out that without an agreement Gegauf and Singer might litigate for a protracted period; that they should not be fighting each other as that would only delay the issue of their respective patents; and, finally, that they should-license each other and .get their respective patents “so they could be enforced by whoever would own the particular patent.” Singer in the discussions worked upon these Gegauf fears of Japanese competition “because one of the strong points” of its argument was that an agreement should be made “in order to fight against this Japanese competition' in their building a machine that in any way reads on the patents of ourselves and of Bernina [Gegauf] which are in conflict.” The trial judge found that the only purpose “disclosed to Gegauf, and in fact the very one used to convince Gegauf of the advisability of entering into an agreement” was to “obtain protection against the Japanese machines which might be made under the Gegauf patent; this sprang from a fear which Singer had good reason to believe to be well founded.” . 205 F. Supp., at 413. While he found Singer’s, “underlying, dominant and sole purpose . . . was to settle the conflict in priority between the Gegauf and Harris patents and to secure for Singer a license right under the earlier patent,” ibid., it is significant that no such overriding purpose was found to-have been disclosed to Gegauf. . The license agreement covered (1) the Singer-Harris patent and its reissue application in the United States'and nine corresponding foreign ones, and (2) the Gegauf Swiss, Italian and German patents, as well as the United States and German applications covering the same. The parties agreed in the first paragraph of the agreement “not to do anything, either directly or indirectly and in any country, the result of which might restrict the scope of the claims of the other party relating to the subject matter of the above mentioned patents and patent applications,” In addition “each undertakes, in accordance with the laws and regulations of the Patent Office concerned, to facilitate the allowance in any country of claims as broad as possible, as regards the subject matter of the patents and patent applications referred to above.” The parties also agreed not to .sue one another on the basis of any of the patent's or applications. -Singer agreed not to make a “slavish” copy of Gegauf’s machine and to-give Gegauf “the amical assistance of its patent attorneys for the defense of any of the above mentioned Gegauf patents or patent applications against-an action-im cancellation.” The agreement made no mention of Singer’s Perla or Johnson applications, the existence of which Singer did not wish Gegauf to know. E. Approximately one week after the Gegauf cross-license agreement Singer met with Vigorelli at Milan, Italy, at the. latter’s request. Vigorelli at this meeting suggested that Singer, Gegauf and Vigorelli, having arrived at their respective agreements, should act in concert in prosecuting their patents against all others in the field. This was out of the question, Singer immediately replied,, advising that “what appeared to us to be proper action was for each one to prosecute his own patents and take eare of any cases of infringement that might appear.” The subsequent conversations at the meeting are reported from the same source as follows: “Upon learning that there could be no joint action by the three companies who have been mentioned in prosecuting patents against all others in the field, that subject was dropped .... “At this point, it should perhaps be mentioned that Mr. Stanford and I have discussed between ourselves whether we should say anything to Mr. Gegauf about our feeling that we could prosecute his patents that will be issued sometime within the next few months in the United States better than perhaps he could if we owned them, but we had decided not to say anything to Mr. Gegauf about this at this time. “In talking with Mr. Vigorelli’s lawyer, Mr. Stanford dropped this view to him. The point was immediately understood, and the question was raised if we would have any objection if they were to pass the word on to Mr. Gegauf that they were raising this point. We said that, of course, we would have no objection but that we ourselves did not wish to do this, and we would not want the suggestion coming to Mr. Gegauf at this time as from us. If they wanted to suggest it, it was all right. We would, of course, under such an arrangement have to give a license to Gegauf under the patent that he would turn over to us. Mr. Stanford believes that he would be able before the patent is issued to rewrite the claims and make it stronger than it now is and that it is a fact that, being in the United States, we would .be better able to prosecute any claims against this patent than would Mr. Gegauf.” While the .testimony of Mr. Stanford, Singer’s patent attorney, varies somewhat from this memorandum of Mr. Waterman, it is substantially the same. That the approach to Gegauf was not casually laid is shown by a May 7, 1956, letter from Mr. Stanford to Patent Department employees of Singer in which he said, “When in Italy we laid careful plans for Gegauf to be advis.ed by a third party that Singer could best handle the patent situation if we owned the Gegauf U. S. Patent. Think it will bear fruit. This suggestion, with the U. S. attorney situation is pressure in the right direction.” Mr. Majnoni reported in June 1956 that he had the “opportunity of talking to the Patent Attorneys of Mr. F. Gegauf on a number of occasions” concerning “the question of the advantage of the American Singer Company being in possession of the different patents which might be useful in defence of sewing machines with multiple cams . . . .” He stated that “the particular character of the question,” i. e., “the -possibility and advantage that the Gegauf patent application in the States be assigned to Singer,” required that the approach be in “such a way as to prompt an initiative to this end by Gegauf.” He was hopeful that this had been accomplished. Thereafter on September 19 Dr. S. Lando, Singer representative in Milan, reported that Majnoni advised that Gegauf “is today effectively willing to transfer his patent application in the U. S. to the Singer, without regard or with little regard to the financial side of the matter.” .This was brought about, he said, by discussions between Vigorelli and Gegauf concerning a United States Van Tuyl patent and its effect upon the validity of the Gegauf German patent; that Gegauf had “made informally known to Mr. Vigorelli that the withdrawing of the Vigorelli application in the U. S. would be greatly appreciated, to prevent the issuance of a printed patent wherein the fact that the-Van Tuyl patent exists will be made known to third parties”; that Vigorelli had agreed to withdraw his application and that as a consequence Vigorelli would “drop any direct means adapted to protect his machines in the U. S., but he is quite sure that Singer will take care of the protection of the machines of the. general type of interest, by making use of the owned Harris and Gegauf patents.” In the summer of 1956 Mr. F. Gegauf,-Jr., and his sister attended a sewing machine convention at Kansas City. On returning home they met with Singer (Messrs. Waterman & Stanford) in Singer’s office in' New York City. Gegauf expressed concern over the number of Japanese machines that he had seen at the convention. Singer again found opportunity to employ the Japanese problem and stressed to Gegauf, Jr., the -difficulties of enforcing a patent in the United States — namely, large number of importers, size of the country, number of judicial circuits, etc. Singer emphasized that these all presented problems to the owner of a United States patent. Singer being in the United States could, they said, enforce the patent better than Gegauf could. They asked Gegauf,'Jr., whether he thought his father would be interested in selling the patent to Singer. Thereafter, on September 3, Gegauf, Jr. wrote Mr. Waterman that Singer’s suggestion had been taken up with Gegauf, Sr., and “we might be interested in such an agreement.” The closing paragraph says: “We agree that something should be done against Japanese competition in your country and maybe South America and are therefore looking forward to your early reply.” Waterman replied on September 7 that he and Mr. Stanford would be in Germany on September 18 through 25; he asked that Gegauf’s United States patent attorney be directed to meet with Stánford in New York City with authorization to disclose the content of the Gegauf patent application so that time, might be saved in Europe. Mr. Waterman closed with the belief “that it may be possible that we can both strengthen our positions with respect to the Japanese competition which you mention ....”■ The conference was set for September 23 at which time Gegauf demanded $250,000 for the patent and negotiations broke off. Singer wrote Dr. Lando, its Milan agent, on October 9, informing him. The letter closed with this paragraph: “I thought you would like to have this information if the subject should come up in talking with Mr. Vigorelli or his attorney.” And on October 24 Singer wrote Mr. Gegauf advising that the United States Patent Office had declared an interference between their patent applications; that their cross-license agreement provided that this interference be settled in accordance with the patent laws of the United States; that “since . . . interference proceedings are usually time consuming and costly to the parties involved, it would appear that it would be advantageous for us to settle the interference between ourselves rather than to continue the proceeding and rely on the United States Patent Office finally to award a priority”; and finally Singer suggested that the attorneys for the parties in the United States get together with a view to settling the interference. Singer abandoned its interference on March 15,1957, and the Gegauf claim was taken verbatim from the Singer Harris reissue claim. Nothing more was done, by Singer toward securing the Gegauf application until September 12, 1957, when Singer wrote Gegauf that its Harris application was about to be issued as a patent. It also anticipated that several other patents relating to- ornamental stitch machines would soon be issued to it and presumed Gegauf’s application would soon be granted. Then followed this paragraph: “When I had the pleasure of meeting you last fall we had some discussion relative to the procedures that might be followed to enforce the patents . . . , when issued, against infringing manufacturers who primarily are manufacturers in other countries seeking markets in the United States, and more and more throughout the entire world. These manufacturers are bringing out a large variety of ornamental stitch machines which would appear to come within the terms of claims which may be awarded in the United States with respect of the aforementioned Singer and Gegauf patents. A proper enforcement of these patents may make it necessary to instigate patent •suits against each of the importers in the United States, of whom there will perhaps be many. I think you will agree with me that neither one of us alone can protect himself most effectively.” This letter brought on a meeting of the parties in Zurich on October 16, 1957. Gegauf’s position was that, as .the trial court found, “while it had no objection ‘to making an agreement with Singer, in order to stop as far as possible Japanese competitors in the United States market,’ it was willing to do so only under certain conditions.” 205 F. Supp., at 416. Finally, as the trial court found, Gegauf demanded $125,000 plus certain conditions declaring that it “was cheap and that it could not go lower since it could get more money if it licensed the invention. Kirker [of Singer] replied that there was no comparison since a sale to Singer was insurance against common competitors and that was why Singer was willing to pay.” Ibid. In another exchange Gegauf “advanced the argument that, if stopped by Singer in the United States, the Japanese manufacturers would run to Europe; to this Singer answered that a greater risk was run in Europe if Singer were not permitted to first stop infringements in the United States. ... Singer continued ‘to drive home the point’ that Gegauf stood to benefit more by enforcement of the patents in the United States because the ‘Brother Pacesetter’ machine, a big selling and patent infringing Japanese-made machine, was in direct competition with the Gegauf machine, for both machines were of the free arm type.” 205 F. Supp., at 417. Finally Gegauf assigned to Singer its application and all rights in the invention claimed and to all United States patents which might be granted under- it for $90,000. The accompanying agreement provided that (1) Singer would grant Gegauf a nonexclusive royalty-free license to sell in the United States sewing machines made in Gegauf’s factory in Switzerland; (2) Singer would not institute, without the consent'of Gegauf, legal proceedings asserting the patents when issued against Pfaff in Germany or Vigorelli in Italy with respect to machines manufactured in their home factories; and (3) Singer would not make a “slavish” copy of Gegáuf’s Bernina machine. F. The Gegaúf patent issued on April 29, 1958, and Singer filed two infringement suits against Brother, the largest domestic importer of Japanese machines. It also sued two other distributors of multicam machines, those actions terminating in consent decrees. Finally, in January 1959, eight months after the patent was issued, Singer brought a proceeding before the United States Tariff Commission under § 337 of the Tariff Act of 1930, 19 U. S. C. § 1337. It sought an order of the President of the United States excluding all imported machines coming within the claims of the Gegauf patent for the term of the patent, naming European as well as Japanese infringers. Singer alleged that the tremendous volume of imports from Japan of household sewing machines, other than automatic zigzag, had eliminated all domestic manufacturers save itself and one small straight stitch part-time concern! It further alleged that the increasing volume of infringing imports similarly threatened to result in the curtailment and ultimate cessation of manufacturing operations in the United States in automatic zigzags, with heavy loss of highly paid and skilled labor and large capital investment. At the time of the filing, Singer alleged, foreign-made machines, “primarily from Japan,” were being imported to the extent of 50% of the entire Singer sales of automatic zigzag machines in this country; it represented that the automatic zigzag machine is its most important product and that it sells for a minimum price of $300; that infringers from Japan sell at no firm price, the average being $100 less than Singer’s price but often far below that figure; and that the minimum price in Japan for export is $40 to $54. During the hearing on its complaint Singer was asked whether Pfaff was licensed under the Gegauf patent. Singer replied in the negative but became skeptical and, believing that it might “have a better chance of prevailing before the Tariff' Commission,” decided to ask Gegauf to revise the agreement, which originally excepted Pfaff and Vigorelli from enforcement proceedings, except on consent of Gegauf. The latter agreed on condition that Phoenix, a German manufacturer which was a party-defendant in the proceedings, be substituted. Upon commencement of this action by the United States, the Commission stayed the proceedings, and they are now in abeyance pending our disposition of this case. II. First it may be helpful to set out what is not involved in this case. There is no claim by the Government that it is illegal for one merely to acquire a patent in order to exclude his competitors; or that the owner of a lawfully acquired patent cannot use the patent laws to exclude all infringers of the patent; or that a licensee cannot lawfully acquire the covering patent in order better to enforce it on his own account, even when the patent dominates an industry in which the licensee is the dominant firm. Therefore, we put all these matters aside without discussion. What is claimed here is that Singer engaged in a series of transactions with Gegauf and Vigorelli for an illegal purpose, i. e., to rid itself and Gegauf, together,-perhaps, with Vigorelli, of infringements by their common competitors, the Japanese manufacturers. The Government claims that in this respect there were an identity of purpose among the parties and actions pursuant thereto that in law amount to a combination or conspiracy violative of the Sherman Act. It claims that this can be established under the findings of the District Court. We note from the findings that the importation of Japanese household multicam zigzag sewing machines first came to notice in the United States in 1954 with the introduction of such a machine by the Brother International Corporation. It incorporated the mechanism of the Vigorelli zigzag and the . Singer 401 machines. By 1959 importations of all Japanese household sewing machines reached 1,100,000, while importations of European machines reached only 100,000. Moreover, it appears that all but two domestic manufacturers were put out of business in three to four years after the Japanese machines first appeared. The two remaining domestic manufacturers were Singer and a company not specializing in sewing machines, which manufactured only straight stitch machines on order for a single domestic customer. The trial court found that no mention was made of the Japanese machines during the negotiations covering the Vigorelli cross-licensing agreement with Singer. It first appeared during the Gegauf licensing negotiations where at those meetings Singer used “protection against the Japanese” as “one of the strong points’* on the cross-licensing of the Gegauf and Harris patents and applications. Here, though the trial court stated that the “dominant and sole purpose of the license agreement was to settle the conflict in priority,” it specifically, in the next paragraph of its opinion, found a “secondary” purpose, i. e., protection against the Japanese machines which were infringing the Gegauf patent. In this connection it is most important to note another finding of the trial court, namely, that this purpose to exclude the Japanese “was the only one disclosed to Gegauf, and in fact the very one used to convince Gegauf of the advisability of entering into an agreement.” 205 F. Supp., at 413. Under these findings it cannot be said that settlement of the conflict in priority was the “dominant and sole purpose” of Singer. Indeed, the two findings are in direct conflict. Furthermore the fact that the cross-license agreement provided that Singer and Gegauf would facilitate the allowance to each other of claims “as broad as' possible” indicates a desire to secure as broad coverage for the patent as possible, the more effectively to stifle competition, the overwhelming percentage of which was Japanese. This effect was accomplished, for when the Patent Office placed the Harris (Singer) and Gegauf patents in interference, Singer abandoned the proceeding, thus facilitating the issuance of broad claims to Gegauf. We now come to the assignment of the Gegauf patent to Singer. The trial court found: (1) that six days after the license agreement was made with Gegauf, Singer proceeded to Italy'where a conference was held with Vigorelli. At this meeting two events took place that led to? the later acquisition of the patent by Singer.. The first was Vigorelli’s proposal that Singer, Gegauf and himself act “in concert against others” in enforcing the patent. This was rejected by Singer’s representatives, who said it was best for each “to prosecute his own parents.” At the same meeting, however, Singer proposed to Vigorelli that it could prosecute the Gegauf patent in the United States better than Gegauf and, after Vigorelli agreed, solicited his help in getting Gegauf to agree to assign the patent. (2) Vigorelli went to Gegauf “acting as Singer’s agent,” 205 F. Supp., at 414, and convinced the latter sufficiently for him to write Singer that he favored the idea of doing something “against Japanese competition.” (3) Singer replied to Gegauf by letter that an arrangement could be reached “equally advantageous to both.” (4) Singer went to Europe but was not able to agree on Gegauf’s terms and thereafter, in September 1957, wrote the latter that “their mutual interests required that something be done to protect themselves from the Japanese infringing machines.” (5) Gegauf replied that he would be happy to meet Singer to discuss “mutual enforcement” of its United States application and the Harris reissue. Then, (6) in the final conferences in Europe Gegauf told Singer that he had no objection “to making an agreement with Singer, in order to stop as far as possible Japanese competitors in the United States market.” Further,-the trial court found that Singer assured Gegauf that “Singer was insurance against common competitors” and Gegauf’s fears that if Singer stopped the Japanese infringements in the United States they (the Japanese) would go to Europe, where Gegauf was not.in as good a position to stop them, were unfounded because a greater risk was run in Europe if Singer were not permitted to first stop infringements in the United States. Finally, the court found that (7) Singer was determined “to drive home the point” that Gegauf stood to benefit more by enforcement of the patents in the United States' because the “Brother Pacesetter” machine, a big selling and patent infringing Japanese-made machine, was in direct competition with the Gegauf machine in the United States. As the trial .court put it, “[t]he point apparently reached home”— Gegauf ultimately assigned the patent for only $90,000, much less than its original asking price and much less than Gegauf believed it would realize annually from a license grant. Gegauf’s beliefs as to the inadequacy of the monetary consideration were well founded, since Singer received more than twice that amount in a two-year period from the one license it granted under the Gegauf patent. That licensé, incidentally, was to Sears, Roebuck & Company, which imported machines from Europe. III. As we have noted with reference to the cross-license agreement, the trial court decided that “[t]he undisputed facts support no conclusion other than that the underlying, dominant and sole purpose of the license agreement was to settle the conflict in priority between the Gegauf and Harris patents . . . .” We have rejected this conclusion on the trial court’s own finding in the next paragraph of the opinion that Singer’s “secondary” purpose, the only one disclosed to Gegauf, was its “desire to obtain protection against the Japanese machines which might be made under the Gegauf patent.” Likewise we reject, as a question of law, the court’s inference that the attitude of suspicion, wariness and self-preservation of the parties negated a conspiracy: See United States v. Line Material Co., 333 U. S. 287, 297 (1948); United States v. Masonite Corp., 316 U. S. 265, 280-281 (1942); United States v. General Electric Co., 80 F. Supp. 989, 997-998 (S. D. N. Y. 1948). The trial court held that the fact that Singer had a purpose, which “Gegauf well knew,” of enforcing the patent upon its acquisition, that the enforcement “would most certainly include Japanese manufacturers who were the principal infringers,” and “that Gegauf shared with Singer a common concern over Japanese competition” did not establish a conspiracy. 205 F. Supp., at 419. Given the court’s own findings and the clear import of the record, it is apparent that its conclusions were predicated upon “an erroneous interpretation of the standard to be applied. . . .” Thus, “[b]ecause of the nature of the District Court’s error we are reviewing a question of law, namely, whether the District Court applied the proper standard to essentially undisputed facts.” United States v. Parke, Davis & Co., 362 U. S. 29, 44 (1960). There in a discussion of a like problem we held that “the inference of an agreement in violation of the Sherman Act” is not “merely limited to particular fact complexes,” ibid., citing United States v. Bausch & Lomb Optical Co., 321 U. S. 707 (1944), and Federal Trade Comm’n v. Beech-Nut Packing Co., 257 U. S. 441 (1922). “Both cases,” the Court continued, “teach that judicial inquiry is not to stop with a search of the record for evidence of purely contractual arrangements. . . .” Ibid. Whether the conspiracy was achieved by agreement, by tacit understanding, or by “acquiescence . . . coupled with assistance in effectuating its purpose is immaterial.” United States v. Bausch & Lomb, supra, at 723. Here the patent was put in Singer’s hands to achieve the common purpose of enforcement “equally advantageous to both” Singer and Gegauf and to Vigorelli as well. What Singer had refused Vigorelli, i. e., acting “in concert against others,” was thus achieved by the simple expedient of transferring the patent to Singer. Thus by entwining itself with Gegauf and Vigorelli in such a program Singer went far beyond its claimed purpose of merely protecting its own 401 machine — it was protecting Gegauf and Vigorelli, the sole licensees under the patent at the time, under the same umbrella. This the Sherman Act will not permit. As the Court held in Frey & Son, Inc., v. Cudahy Packing Co., 256 U. S. 208, 210 (1921), the conspiracy arises implicitly from the course of dealing of the parties, here resulting in Singer’s obligation to enforce the patent to the benefit of all three parties. While there was no contract so stipulating, the facts as found by the trial court indicate a common purpose to suppress the Japanese machine competition in the United States through the use of the patent, which was secured by Singer on the assurances to Gegauf and its colicensee, Vigorelli, that such would certainly be the result. See Federal Trade Comm’n v. Beech-Nut Packing Co., supra. Singer cannot, of course, contend that it sought the assignment of the patent merely to assure that it could produce and sell its machines, since the preceding cross-license agreement had assured that right. The fact that the enforcement plan likewise served Singer is of no consequence, the controlling factor being the overall common design, i. e., to destroy the Japanese sale of infringing machines in the United States by placing the patent in Singer’s hands the better to achieve this result. It is this concerted action to restrain trade, clearly established by the course of dealings, that condemns the transactions under the Sherman Act. As we said in United States v. Parke, Davis & Co., supra, at 44, “whether an unlawful combination or conspiracy is proved is to be judged by what the parties actually did rather than by the words they used.” Moreover this overriding common design to exclude the Japanese machines in the United States is clearly illustrated by Singer’s action before the United States Tariff Commission. Less than eight months after the patent was issued it started this effort to bar infringers in one sweep. As an American corporation, it was the sole company of the three that was able to bring such an action. When it appeared that the references to Pfaff in the assignment agreement threatened the success of the Tariff Commission proceeding, Gegauf consented to the deletion of Pfaff from the agreement. This maneuver was for the purpose, as the trial court found, of giving Singer “ ‘a better chance of prevailing before' the Tariff Commission’ in its efforts to exclude” infringing machines. 205 F. Supp., at 427. While the tariff application was leveled against nine European- as well as the Japanese competitors, the allegations were clearly beamed at the infringing Japanese machines to which Singer attributed the destruction of all American domestic household sewing machine companies save itself. As the parties to the agreements and assignment well knew, and as the trial court itself stated, “[b]y far the largest number of infringers of the Gegauf patent and invention were the Japanese.” 205 F. Supp., at 418. It is strongly urged upon us that application of the antitrust laws in this case will have a significantly deleterious effect on Singer’s position as the sole remaining domestic producer of zigzag sewing machines for household use, the market for which has been increasingly preempted by foreign manufacturers. Whether economic consequences of this character warrant relaxation of the scope of enforcement of the antitrust laws, however; is a policy matter committed to congressional or executive resolution. It is not within the province of the courts, whose function is to apply the existing law. It is .well settled that “[b]eyond the limited monopoly which is granted, the arrangements by which the patent is utilized are subject to-the general law,” United States v. Masonite Corp., supra, at 277, and it “is equally well settled that the possession of a valid patent or paténts does not give the patentee any exemption from the provisions of the Sherman Act beyond the limits of the patent monopoly. By aggregating patents in one control, the holder of the patents cannot escape the prohibitions of the Sherman Act.” United States v. Line Material Co., supra, at 308. That Act imposes strict limitations on the concerted activities in which patent owners may lawfully engage, see United States v. United States Gypsum Co., 333 U. S. 364 (1948); United States v. Line Material Co., supra; United States v. National Lead Co., 63 F. Supp. 513, aff’d, 332 U. S. 319 (1947), and those limitations have been exceeded in this case. The judgment of the District Court is reversed and the case is remanded for the entry of an appropriate decree in accordance with this opinion. It is so ordered. Whatever may have been the wisdom of the Expediting Act in providing direct appeals in antitrust cases at the time of its enactment in 1903, time has proven it unsatisfactory. See, e. g., Gesell, A Much Needed Reform — Repeal the Expediting Act for Antitrust Cases, in 1961 N. Y. State Bar Assn. Antitrust L. Sym. 98 (CCH). Direct appeals not only place a great burden on the Court but also deprive us of the valuable assistance of the Courts of Appeals. “Unless we are able to come to some agreement with Vigorelli, we will of course institute proceedings in Italy in due time, seeking to invalidate such patent as Vigorelli has received and we will do the samé thing in France and other' countries in accordance with the proper procedure in each country. This litigation will undoubtedly result either in the cancelling of their patent and patent applications, or at any rate, severely limit the claims. On the other .hand, if we were to refrain, from instituting such proceedings and if we were to withdraw the Brazilian opposition, their applications might develop into rather broad patents which would have a dominating position in the industry.- We ourselves hold some patents and have, patent applications pending .which would make trouble for Vigorelli if we were engaged in litigation' with them, or which would . greatly strengthen and broaden the patent situation if our position and theirs could be pooled by some, mutual agreement.” Letter from M. C. Lightner, Singer President, to W. P. Evans of Singer’s Italian Corporation, September 12, 1955. Memorandum from M. L. Waterman, Singer Vice President, to M. C. Lightner, April 13, 1956. M. L. Waterman, notes dictated at Milan, April 20, 1956. Mr. Stanford testified that a Mr. Majnoni, patent attorney present for Vigorelli, came over to him as the discussions (which were in Italian and English as some participants spoke only their native tongue) were more or less over and said that he would like to speak in English. He asked “about the situation here in the United States between Gegauf and the Harris patent . . . .” Stanford replied “that they' would probably be locked in interference very shortly; that Gegauf was ahead of us and that I was very much afraid that Gegauf was going to win the interference, that I was sorry because I felt that if we had the claims and were able to keep them in the Harris patent, we would be able to enforce them better than could [Gegauf] if he had a patent . . . .” Stanford told Majnoni that Singer had made no approaches to Gegauf because the price would “go sky high”; Majnoni said that he knew Mr. Gegauf’s attorney, had “frequent. contacts with him”' and offered to approach him. Stanford said he “didn’t think that would do any good; that I thought that would be just as bad.” Majnoni replied that he would let him think it came directly from him. “I think,” he added, “it would be advantageous ... if Singer owned the claims . . . .” Stanford interpreted this to mean that Majnoni thought it would be better for Vigorelli “if Singer, who was a corporation in the United States, owned the Gegauf patent and they would rather have Singer own it than have Gegauf because they thought that we could enforce it better or were in a better position to enforce it.” This letter is substantially the same as the proposed letter which Mr. Stanford sent Mr. Waterman for transmittal to Gegauf, except that the quoted paragraph was phrased more directly in the proposed letter: “You are no doubt aware that recently the many Japanese sewing machine manufacturers have brought out a large variety of ornamental stitch machines which would appear to come within the terms of claims which may be awarded in the United States with respect of the above Gegauf and Singer patents. We have reason to believe that all of the very many United States sewing machine importers will wish to deal in such Japanese ornamental stitch machines, and that patent suits against each of these importers may be necessary if our respective patents are to be enforced. “Your, [sic] may agree with us that under the terms of our present agreement neither party is in a position effectively to protect itself through patents in the United States with respect to this threatened competition, particularly when the competing machines are copies after both'Bernina and Singer models.” Since we have concluded that the entire course of dealings between the parties, including the cross-license agreement, establishes a conspiracy or combination in violation of the Sherman Act, we need not and do not pass on the Government’s contention that the erosslicense agreement and the interference settlement are illegal apart from the other circumstances present here. As to this question, see Note, 31 Geo. Wash. L. Rev. 643 (1963). In addition, though the parties do not discuss the effect of the final arrangement, it would permit both Gegauf and Vigorelli to sell machines under the patent in the United States. The fact that this might be consequential is indicated by the statistic that in 1959 Europe furnished 16% of the machines sold in the United States. The trial court’s findings, as we have noted, are inconsistent in some respects. The court repeatedly described the role of the parties’ “mutual interests” in the achievement of an agreement to assign the Gegauf patent to Singer. It also found that “Gegauf shared with Singer a common concern over Japanese competition,” 205. F. Supp., at 419, and that both parties knew that Singer wanted the patent in order to enforce it against their common competitors, the Japanese. Still, at one point, the court states that “their dealings were characterized by an absence of unity or identity of any .common purpose or motive.” 205 F. Supp., at 418. Insofar as that conclusion derived from the court’s application of an improper standard .to the facts, it may be corrected as a matter of law. Insofar as the conclusion is based on “inferences drawn from documents or undisputed facts, . . . Rule 52 (a) of the Rules of Civil Procedure is applicable.” United States v. United States Gypsum Co., 333 U. S. 364, 394 (1948). The rule was there stated that “[a] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id., at 395. The evidence here, including many findings of the trial court, clearly compels the conclusion that the parties’ concerted activities were motivated by a common purpose, and the court’s conclusion to the contrary must be regarded as clearly erroneous. United States v. United States Gypsum Co., supra; see Pacific Portland Cement Co. v. Food Mach. & Chem. Corp., 178 F. 2d 541 (C. A. 9th Cir. 1949). Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:

sc_casesourcestate

04

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed. BOHANNAN v. ARIZONA ex rel. SMITH, ATTORNEY GENERAL. No. 204. Decided October 9, 1967. John P. Frank for appellant. Darrell F. Smith, Attorney General of Arizona, and Gary K. Nelson, Assistant Attorney General, for appellee. Per Curiam. The motion to dispense with printing the motion to dismiss is granted. The motion to dismiss is also granted and the appeal is dismissed for want of a properly presented federal question. Question: What is the state of the court whose decision the Supreme Court reviewed? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:

songer_r_fed

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Charles Gasper SALVO, Defendant-Appellant. No. 71-1020 Summary Calendar. United States Court of Appeals, Fifth Circuit. June 3, 1971. Certiorari Denied Oct. 19, 1971. See 92 S.Ct. 218. Robert C. Stone, J. Leonard Fleet, Hollywood, Fla., for defendant-appellant. Robert W. Rust, U. S. Atty., Marsha L. Lyons, Asst. U. S. Atty., Miami, for plaintiff-appellee. Before THORNBERRY, MORGAN and CLARK, Circuit Judges. [1] Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et. al., 5th Cir. 1970, 431 F.24 409, Part I. THORNBERRY, Circuit Judge: Charles Gasper Salvo was indicted for receiving and possessing 59 Westinghouse air conditioners, valued in excess of $100, and 67 cases of Miller’s High Life beer, valued in excess of $100, stolen while moving in interstate commerce, and knowing same to be stolen, in violation of 18 U.S.C. § 659. A jury subsequently found him guilty as charged, and he was sentenced to a period of incarceration of two and one-half years. He appeals, and we affirm. During the course of the trial appellant moved for the suppression of the evidence on the grounds that there was no probable cause for the search of the premises upon which the stolen articles were found and no probable cause for his arrest. The district court denied the motion, a determination that appellant, as his first point of error, attacks as erroneous. The search and arrest were made in the following circumstances. Police officers, acting on the tip of an informant who had purchased a Westinghouse air conditioner bearing the serial number of one that had recently been stolen from a railroad boxcar in Fort Lauderdale, Florida, had placed under surveillance a certain blue panel truck and its occupants, two young men who were .believed to be involved in the theft. On the date in question the officers followed the truck to the rear of the Roman Candle Restaurant in Plantation, Florida. After the officers observed the men loading boxes into the truck, which was parked in an alley separating the shopping center in which the restaurant is located from the business adjacent to it, the officers advanced toward the suspects. While one officer walked toward the suspect in the truck, another officer walked toward the restaurant’s back door, which opened onto the alley. Through the open door he observed two uncrated air conditioners and stacks of boxes that bore the imprint “Westinghouse.” In addition, he saw a stack of red and white boxes marked “Miller.” When he identified himself as an officer, the subject inside the building slammed the door and bolted the' lock. The officer then entered the restaurant through a side door, located the owner, explained what had transpired, and secured his permission to search the storage room in which the subject was believed to be hiding and in which the beer and air conditioners were resting. Upon entering the room, the officer discovered that the subject had fled but had been apprehended by another officer. A canvass of the serial numbers of the air conditioners confirmed that they were indeed the stolen items. After learning from the restaurant’s owner that the stolen items had been placed in the storeroom by one Charles Salvo and a companion, the officers proceeded to the grocery store in which appellant was a part-time employee and placed him under arrest. The Supreme Court has noted that “[I]t has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence.” Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968). In the instant matter the officer was lawfully in the alley that ran alongside the restaurant, and while standing there he merely observed what was within his plain view through the open door. Moreover, before actually entering the storage room in hot pursuit of a suspect, he secured the owner’s permission to search the room. Contrary to appellant’s contention, the officer’s actions do not constitute an illegal search. See Gil v. Beto, 5th Cir. 1971, 440 F.2d 666; Ponce v. Craven, 9th Cir. 1969, 409 F.2d 621, certiorari denied, 397 U.S. 1012, 90 S.Ct. 1241, 25 L.Ed.2d 424 (1970); Marullo v. United States, 5th Cir. 1964, 328 F.2d 361. Nor was Salvo’s subsequent arrest without a warrant unconstitutional under Fourth Amendment standards. An arrest without a warrant is constitutionally valid if at the moment the arrest was made the arresting officers had probable cause to make it. “Probable cause” exists when the arresting officers have knowledge of facts and circumstances or reasonably trustworthy information that would lead a prudent man reasonably to believe that the arrested person had committed or was committing an offense. Beck v. Ohio, 879 U.S. 89, 91, 85 S.Ct. 228, 225, 12 L.Ed.2d 142, 145; United States v. Lipscomb, 5th Cir. 1970, 435 F.2d 795; Russell v. United States, 5th Cir. 1968, 396 F.2d 771, 772. On the basis of the facts set out above, we hold that probable cause existed to justify Salvo’s arrest without a warrant. It follows that the district court did not err in denying appellant’s motion to suppress the evidence. Appellant makes the further contention that the trial judge, by his comments during the trial, intervened in a manner that deprived appellant of a fair trial as guaranteed by the Sixth Amendment. This Court has articulated the standards governing a trial judge’s conduct during the course of a trial in, inter alia, Bursten v. United States, 5th Cir. 1968, 395 F.2d 976, and Moody v. United States, 5th Cir. 1967, 377 F.2d 175. We have carefully measured the remarks made by the trial judge in the instant matter against these standards and found no basis for declaring that the remarks deprived appellant of a fair trial. Accordingly, we affirm. Affirmed. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:

songer_genapel1

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. FIRST NATIONAL PARK BANK, Plaintiff-Appellee, v. Snellen M. JOHNSON and Ven Savage, Defendants-Appellants. Nos. 75-1354, 75-1413 and 75-3303. United States Court of Appeals, Ninth Circuit. April 7, 1977. Rehearing Denied May 10, 1977. William D. Murray, Jr., McCaffery & Peterson, Butte, Mont., for defendants-appellants. Lorin N. Pace, Salt Lake City, Utah, Arthur P. Acher, Rankin & Acher, Helena, Mont., submitted on briefs, for plaintiff-appellee. Before CHOY and KENNEDY, Circuit Judges, and PREGERSON, District Judge. Honorable Harry Pregerson, United States District Judge for the Central District of California, sitting by designation. KENNEDY, Circuit Judge: First National Park Bank (the bank) brought an action against Johnson and Savage as guarantors of a loan made to Great Western Ranches, a Utah corporation (the Utah corporation). The action was brought in the District of Montana. Jurisdiction exists by reason of diversity of citizenship, and the law of Montana controls the substantive questions presented. Between January 21, 1969 and July 23, 1969, the bank financed the purchases of three airplanes by the Utah corporation. Each of the three loans was secured by the airplanes. On July 23, 1969, the date on which the third airplane was financed, Johnson and Savage (the guarantors), officers of the Utah corporation, personally guaranteed repayment of the Utah corporation’s three bank loans. On August 12, 1969, a Nevada corporation took over all the assets of the Utah corporation. Apparently, the Nevada corporation did not assume the Utah corporation’s debts to the bank. The payments due to the bank ■ became delinquent as early as October 1969. Some time thereafter, the bank repossessed the airplanes. In August 1970, the Nevada corporation filed a proceeding under Chapter X of the Bankruptcy Act. The bank applied to the bankruptcy court to modify a restraining order so that the bank could pursue its remedies with respect to the airplanes. The bank’s application was granted, and the bank resold the airplanes at private sales, with a resulting deficiency of $68,661.78 plus interest. The bank filed a claim in the Chapter X proceeding, seeking to recover the deficiency from the Nevada corporation. The claim was denied. The bank then brought the instant action against the guarantors to recover the deficiency. The district court denied the guarantors’ motion for summary judgment and entered summary judgment in favor of the bank. The guarantors appeal. The bank cross appeals from the trial court’s refusal to grant an award of attorneys’ fees against the guarantors. We affirm in all respects. Appeal by the Guarantors On appeal, the guarantors contend that the bank’s failure to notify the debtor that the collateral would be sold bars recovery of the deficiency from the guarantors. For the purpose of determining the correctness of summary judgment in this case, we assume that the bank did not comply with the notice provisions of Mont.Rev.Codes Ann. § 87A-9-504(3) (Uniform Commercial Code (UCC) § 9-504(3)). A substantial number of jurisdictions have addressed the question whether a creditor who has failed to comply with the notice provisions of UCC § 9-504(3) may recover a deficiency judgment from the debtor. Some courts have barred a deficiency judgment altogether. See United States v. Whitehouse Plastics, 501 F.2d 692, 695 n.3 (5th Cir. 1974) and cases cited therein. Others have held that failure to give notice does not bar a deficiency judgment, but the value of the collateral is presumed to equal the amount of the debt, and the burden is on the secured creditor to establish that the collateral is worth less than that amount. Id. n.4 and cases cited therein. We have found no Montana cases specifically addressing this issue. Even assuming, however, that the Montana courts would bar a deficiency judgment against a principal debtor who had not received notice, it does not necessarily follow that the Montana courts would interpret Mont.Rev. Codes Ann. § 87A-9-504(3) as requiring the same result in a suit against a guarantor, whose rights are not expressly governed by article 9 of the UCC. The policies underlying UCC § 9-504(3) would seem to require that the guarantor have a defense to a deficiency claim where the secured party fails to give the principal debtor statutory notice of the sale. This follows from the obligation of a principal debtor to reimburse his guarantor for any amount that the guarantor is required to pay on the guaranteed indebtedness: Were the guarantor not afforded such a defense, then, after paying a judgment for a deficiency, he could recover from the principal debtor the amount of that judgment. Mutual Finance Co. v. Politzer, 21 Ohio St.2d 177, 256 N.E.2d 606, 610 (1970). Accord, Weinstein v. United States, 511 F.2d 56, 59 (6th Cir. 1975). We therefore assume that lack of notice to the debtor may be a defense that is available to the guarantor in a suit brought by the secured party. The question here is whether the guarantor waived that defense by signing the guaranty agreement and if so whether the UCC prohibits such a waiver. The district court correctly found that the guarantors had waived their right to rely on lack of notice as a defense. The guaranty agreement unambiguously contains such a waiver, in accordance with which the bank could sell or release the collateral without notice to the guarantors and without affecting their absolute liability. Such language is sufficient to constitute a waiver of any right to notice the guarantors may have had. See Weinstein v. United States, 511 F.2d at 60. We therefore hold that the bank’s failure to give notice to the debtor was a defense waived by the guarantors in this case. The guarantors nevertheless contend that even though the guaranty agreement contained a waiver, waiver of notice under UCC § 9-504(3) is specifically barred by Mont.Rev.Codes Ann. § 87A-9-501(3), UCC § 9-501(3). We disagree. First, section 9-501(3) applies only to “debtors”; the guarantors are not debtors within the meaning of that section. Cf. EAC Credit Corp. v. King, 507 F.2d 1232, 1238 (5th Cir. 1975). But see Rushton v. Shea, 423 F.Supp. 468, 470 (D.Del.1976). Section 9-501(3), therefore does not by its terms mandate a holding that a guarantor is precluded by UCC § 9-501(3) from waiving a defense of lack of notice to the debtor. Second, the policies of the UCC notice provisions do not require that we apply, by implication, the nonwaiver statute to a guarantor. Where both the principal debtor and the guarantor had or would have had a valid defense against payment, but the voluntary conduct of the guarantor amounts to a waiver of that defense by the guarantor, the latter may not obtain reimbursement from the principal. Mutual Finance Corp. v. Politzer, 256 N.E.2d at 612, citing 38 C.J.S. Guaranty § 111 at 1299. A holding that the guarantors waived the creditor’s failure to give notice will not deprive the principal debtor of the protections of section 9-504(3). The district court here properly held that the bank’s action for a deficiency was not barred by the UCC. The guarantors contend that, apart from the provisions of the UCC, the bank’s failure to give notice to the debtor impaired their right to proceed against the collateral and their rights of subrogation, thereby discharging them from liability for the deficiency. The guaranty in this case, however, is absolute and unconditional. The guarantors agreed to subject themselves to absolute liability for the obligation. Indeed, the guaranty agreement contained an express waiver of any right to notice the guarantors may have had. Where a guaranty is unconditional, a creditor, at least absent willful or grossly negligent waste or misconduct, may recover a deficiency judgment from an unconditional guarantor without regard to the creditors’ treatment of the collateral. United States v. Bertie, 529 F.2d 506, 507 (9th Cir. 1976); see United States v. Proctor, 504 F.2d 954 (5th Cir. 1974); Joe Heaston Tractor & Implement Co. v. Securities Acceptance Corp., 243 F.2d 196 (10th Cir. 1957). In the instant case, there was no allegation of willful or grossly negligent waste or misconduct; indeed, the record is devoid of any indication that the collateral was not sold for a commercially reasonable price. The amount of the deficiency being established, we hold that such deficiency may be recovered from the guarantors and that summary judgment in favor of the bank was appropriate. Appellants next contend that under the doctrine of collateral estoppel, the bankruptcy court’s denial of the bank’s claim for a deficiency in the Chapter X proceeding bars recovery from the guarantors here. The argument is without merit. The bankruptcy court did not determine the question of the liability of the guarantors for the deficiency. The district court properly rejected the guarantor’s claim of collateral estoppel. Cross Appeal by the Bank The bank cross appeals from the district court’s denial of attorneys’ fees. The guaranty agreement provides that the guarantors: hereby jointly and severally unconditionally guarantee the prompt payment when due ... of any and all notes, drafts, checks, and all other indebtedness and liabilities of whatsoever nature . at any time owed or contracted by the debtor to the bank . . . together with any and all expenses of and incidental to collection, including attorneys’ fees The bank contends that the quoted language required that the district court award attorneys’ fees. The language in the guaranty agreement refers to recovery of attorneys’ fees incidental to collection of the debt from the principal debtor. The instant action is on the guaranty. We agree with the district court that this language falls within the rule of Schauer v. Morgan, 67 Mont. 455, 471, 216 P. 347, 352 (1927), in which it was stated: The judgment entered in this action is for $4,692 and legal interest. It also awards to plaintiff an attorney’s fee of $500. The note delivered to plaintiff with the guaranty provided for a reasonable attorney’s fee, if the note was placed in the hands of an attorney for collection. This action is upon the guaranty. The provision for an attorney’s fee relates only to proceedings to collect the note, and since the action is not upon the note the attorney’s fee was improperly allowed. Accord, Securities Investment Co. of St. Louis v. Donnelley, 513 P.2d 1238, 1243 (Nev.1973). We note further that the guaranty agreement should be construed most strongly against the bank, the party responsible for its drafting. Miller v. Walter, 165 Mont. 221, 527 P.2d 240, 245-46 (1974). We therefore hold that the request for attorneys’ fees was properly denied. AFFIRMED. . That section provides in pertinent part: Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, and except in the case of consumer goods to any other person who has a security interest in the collateral and who has duly filed a financing statement indexed in the name of the debtor in this state or who is known by the secured party to have a security interest in the collateral. The secured party may buy at any public sale and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations he may buy at private sale. (emphasis added). . The guaranty agreement provides in relevant part: The Bank is expressly authorized to forward or deliver any or all collateral and security which may at any time be placed with it by the Debtor or any of the undersigned, or any other person, directly to the Debtor for collection and remittance or for credit, or to collect the same in any other manner and to exchange or surrender with or without consideration any or all of such collateral and security without notice to any of the undersigned and without in any manner affecting the absolute liability of any of the undersigned hereunder. The liability of each of the undersigned hereunder shall not be affected or impaired by any failure, neglect or omission on the part of the Bank to realize upon any such indebtedness of the Debtor to the Bank, or upon any collateral or security for any or all such indebtedness, nor by the taking by the Bank of any other guaranty or guaranties to secure indebtedness of the Debtor to the Bank, nor by the taking by the Bank of collateral or security of any kind. . That provision provides in part: To the extent that they give rights to the debtor and impose duties on the secured party, the rules stated in the subsections referred to below may not be waived or varied Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

sc_respondent

028

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. COLTEN v. KENTUCKY No. 71-404. Argued April 17, 1972 Decided June 12, 1972 White, J., delivered the opinion of the Court, in which Burger, C. J., and BrenNAN, Stewart, Blackmun, Powell, and RehN-quist, JJ., joined. ’ Douglas, J., post, p. 120, and Marshall, J., post, p. 122, ffied dissenting opinions. Alvin L. Goldman argued' the cause for appellant. With him on thé brief were Melvin L. Wulf and Sanford Jay Rosen. Robert W. Willmott, Jr., Assistant Attorney General of Kentucky, argued the caúse for appellee pro hac vice. With him on the brief was Ed W. Hancock, Attorney General. Mr. Justice White delivered the opinion of the Court. . This case presents two unrelated questions.. Appellant challenges his Kentucky conviction for disorderly eondüct on the ground that the conviction and the State’s' statute are repugnant to the First and Fourteenth Amendments. He also challenges the constitutionality of the enhanced penalty he .received under Kentucky’s two-tier system for adjudicating certain criminal cases, whereby a person charged with a misdemeanor may be tried first in an inferior court and, if dissatisfied with the outcome, may have a trial de novo in a court of general criminal jurisdiction but must run the risk, if convicted, of receiving a greater punishment. Appellant Colten and 15 to 20 other college students . gathered at the Blue Grass Airport outside Lexington, Kentucky, to show their support for a state gubernatorial' candidate and to demonstrate their lack of regard for Mrs. Richard Nixon, then about to leave Lexington from the airport after a public appearance in the city. When the demonstration had ended, the students got into their automobiles and formed a procession of six to 10 cars along the airport access road to 'the main high-' way. A state "policeman, observing that one of the first cars in the entourage carried an expired Louisiana license plate, directed the driver,' one Mendez, to pull, off the road.. He complied. Appellant Colten, followed by other motorists in the procession, also pulled off the highway, and Colten approached the officer to find out what was the matter. The policeman explained that the Mendez car bore an expired plate and that a traffic summons would be issued. Colten made some effort to enter into a conversation about the summons. His theory was that Mendez .may have received an extension of time in which to obtain new plates. In order to avoid Colten and to complete the issuance of the summons, the policeman took Mendez to the patrol car. Meanwhile, other students had left their cars and additional policemen, having completed their duties at the airport and having noticed the roadside scene, stopped their cars in the traffic lane abreast of the students’ vehiclés. At least one officer took responsibility for directing traffic, although testimony differed as to the need for doing so. * Testimony also differed as to the. number, of policemen and students present, how many students left their cars and how many were at one time or another standing in the roadway. A state police captain asked on four .pr five occasions that the group disperse. At least five times ■police asked Colten to leave. A state trooper made two requests, remarking at least once: “Now, this is none of your affair . . . get back-in your car and please move on and clear the road.” In. response to at least one of these requests Colten replied that he wished to make a transportation arrangement for his friend Mendez and the occupants of the Mendez car, which he Understood was to be towed away. - Another officer asked' three times that Colten depart and when Colten failed to move away he was arrested for violating Kentucky’s disorderly conduct statute, Ky. Rev. Stat. §437.016 (Supp. 1968). The arresting officer testified that Colten’s response to the order had been to say that he intended to stay and see what might happen. Colten disputed this. He testified that he expressed a willingness to leave but wanted first to make a transportation arrangement. At trial he added that he feared violence on the part of the police. The complaint and warrant 'charging disorderly conduct, which carries a maximum penalty of six months in jail and a fine of $500, were addressed to the Quarterly Court of Fayette County, where Colten was tried, convicted, and fined $10. Exercising his right to a trial de novo in a court of general jurisdiction, Colten “appealed,” as the Kentucky rules style this recourse, Ky. Rule Crim. Proc. 12.02, to the Criminal Division of the Fayette Circuit Court. By.consent,- trial was tó the court and Col-ten was convicted of disorderly conduct and this time fined $50. The Kentucky Court of Appeals .affirmed. Colten v. Commonwealth, 467 S. W. 2d 374 (1971). It rejected Colten’s constitutional challenges to the statute and his claim that the punishment imposed was impermissible, under North Carolina v. Pearce, 395 U. S. 711 (1969). We noted probable jurisdiction. 404 U. S. 1014 (1972). I Colten was convicted of violating Ky. Rev. Stat. § 437.016 (l)(f) (Supp. 1968), which states: “(1) A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk théreof, he: “(f) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse'. ...” The Kentucky Court of Appeals interpreted the statute in the following way: “As- reasonably construed, the statute does not prohibit the lawful exercise of any constitutional right. We think that the plain meaning of the statute, in requiring that the proscribed conduct be done ‘with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,’ is that the specified intent must be the predominant intent. Predominance can be determined-either (1) from the fact that no bona fide intent to exercise a constitutional right appears to háve existed or (2) from the faqt that the interest to be advanced by the particular exercise of a constitutional right is insignificant in comparison with the inconvenience, annoyance or alarm caused by the exercise.” 467 S. W. 2d, at 377. The evidence warranted a finding, the Kentucky court concluded, that at the time of his arrest, “Colten was not undertaking to exercise any constitutionally protected freedom.” Rather, he “appears to have had no purpose other than, to cause inconvenience and annoyance. So the statute as applied here did not chill or stifle the exercise of any constitutional right.” Id., at 378. Based on our own examination of the record, we perceive no justification for setting aside the conclusion of the state court that when arrested appellant was not engaged in activity protected by the First Amendment. Colten insists that in seeking to arrange transportation for Mendez and in observing the issuance of a trafile citation he was disseminating and receiving information. But this is a strained, near-frivolous contention and we have little doubt that Cólten’s conduct in refusing to move on after being directed to do so was not, without more, protected by the First Amendment. Nor can we believe that Colten, although he, was not trespassing or disobeying any traffic regulation himself, could not be required to move on. He had no constitutional right to observe the issuance of a traffic ticket or to engage the issuing officer in conversation at that time. The State has a legitimate interest in enforcing its traffic laws and its officers were entitled to enforce them free from possible interference or interruption from bystanders, even those claiming a third-party interest in the transaction. Here the police had cause for apprehension that a roadside strip, crowded with persons and automobiles, might expose the. entourage, passing motorists, and police to the risk of accident. We cannot disagree with the finding below that the order to disperse was suited to the occasion. We thus see nothing • unconstitutional in the manner in which the statute was applied. II Neither are we convinced that the statute is either impermissibly vague or broad. We perceive no violation of “[t]he underlying principle . . . that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U. S. 612, 617 (1954); cf. Connolly v. General Construction Co., 269 U. S. 385, 391 (1926). Here the statute authorized conviction for refusing to disperse with the intent of causing inconvenience, annoyance, or alarm. Any person who stands in a group of persons along a highway where the police are investigating a traffic violation and seeks to engage the attention of an officer issuing a summons should understand that he could be conyicted under subdivision (f) of Kentucky’s statute if he fails to obey an order to move on. The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited. • We agree with the Kentucky court when it said: “We believe that citizens who desire to obey the statute will have no difficulty in understanding it . . , .” Colten v. Commonwealth, 467 S. W. 2d, at 378. Colten also argues that the Kentucky statute is over-broad. He relies on Cox v. Louisiana, 379 U. S. 536 (1965), where the Court held unconstitutional a breach-of-peace statute construed to forbid causing agitation or disquiet coupled with refusing to move on when ordered to do so. The Court invalidated the statute on the ground that it permitted conviction where the mere expression of unpopular views prompted the order that is disobeyed. Colten argues that the Kentucky statute must be stricken down for the same reason. ' As the Kentucky statute was construed by the state court, however, a crime is committed only where there is no bona fide intention to exercise a constitutional right — in which event, by definition, the statute infringes no protected speech or conduct — or where the interest so clearly outweighs the collective interest sought to be asserted that the latter, must be deemed insubstantial. The court hypothesized, for example, that one could be convicted for disorderly conduct if at a symphony concert he arose and began lecturing to the audience on leghorn chickens. 467 S. W. 2d, at 377. In so confining the reaeh of its statute, the Kentucky court avoided the shortcomings of the statute invalidated in the Cox case. Individuals may not be convicted under the Kentucky statute merely for expressing unpopular or annoying ideas. The statute, comes into operation only when the, individual’s interest in expression, judged in the light of all relevant factors, is “minuscule” compared to a- particular public interest in preventing that' expression or conduct at that time and place. As we understand this case, appellant’s own conduct was not immune under the First Amendment and neither is his conviction vulnerable on the ground that the statute threatens constitutionally protected conduct of others. Ill Kentucky, like many other States, has a two-tier system for adjudicating less serious criminal cases. Iri Kentucky, at the option of the arresting officer, those crimes classified under state law as misdemeanors may be charged and tried in a so-called inferior court, where, as in the normal trial setting, a defendant may- choose to have á trial or to plead guilty: If convicted after .trial or on a guilty plea, however, he has a right to a trial de novo in a court of general criminal jurisdiction, Brown v. Hoblitzell, 307 S. W. 2d 739 (Ky. 1957), so long as he applies within the statutory time. The right to a new: trial is absolute. A defendant need not allege error in the inferior court proceeding. If he seeks a new trial, the Kentucky statutory scheme contemplates that the slate be wiped clean. Ky. Rule Crim. Proc. 12.06. Prosecution and defense begin anew. By the same token neither the judge nor jury that determines, guilt or fixes a penalty in the trial de novo is in any way bound by the inferior court’s findings or judgment. The case is to be regarded exactly as if it had been brought there in the first instance. A convicted defendant may seek review in the state appellate courts in the same manner as a person tried initially in the general criminal court. Ky. Rev. Stat. § 23.032.(Supp. 1968). However, a defendant convicted after a trial or plea in an inferior court may not seek ordinary appellate review of the inferior court’s ruling. His recourse is the trial de novo. While by definition two-tier systems throughout the States have in common the trial dé novo feature, there are differences in the kind of trial available in the inferior courts of first instance, whether known as county, municipal, police, or justice of the peace courts, or are otherwise referred to. Depending upon the jurisdiction and offense charged, many such systems provide as complete protection for a criminal defendant’s constitutional rights as do courts empowered to try more serious crimes. Others, however, lack some of the safeguards provided in more serious, criminal cases. Although appellant here was entitled to a six-man jury, cf. Williams v. Florida, 399 U. S. 78 (1970), which he waived, some States do .not provide for trial by jury, even in instances where the authorized punishment would entitle the accused'to such tribunal. ,Cf. Duncan- v. Louisiana, 391’ U. S. 145 (1968).' Some, including Kentucky, do not record proceedings and the judges may not be trained for their positions éither by experience or schooling. Two justifications are asserted for such tribunals: first, in this day of increasing burdens on state-judiciaries, these courts are designed, in the interest of both the defendant and the State, to provide speedier and less costly adjudications than may be possible in the criminal courts of general jurisdiction where the full range of constitutional guarantees is available; second, if the' defendant is not satisfied with the results of his first trial he has the unconditional right to a new trial in a superior court, unprejudiced by the proceedings or the outcome in the. inferior courts. Colten, however, considers the Kentucky system to be infirm because the judge in a trial de novo is empowered to sentence anew and is, not bound- to stay within the limits of the sentence imposed by the inferior court. He bases his attack both on the Due Process Clause, as interpreted in North Carolina v. Pearce, 395 U. S. 711 (1969), and on the Fifth Amendment's Double Jeopardy Clause. The issues appellant raises Nave produced a division among the state courts that have considered' them as. well as a conflict among the federal circuits. Colten rightly reads Pearce to forbid, following a successful appeal and reconviction,- the imposition of a greater punishment than was imposed, after the first trial, absent specified findings that have not been made' here. He insists that the Pearce rule is applicable here and that there is no relevant difference, between the Pearce model and the Kentucky two-tier trial de novo system; Both, he asserts, involve recon-viction and resentencing, both provide the convicted de- . fendant with the right to-“appeal” .and in both — even though under the Kentucky scheme the “appeal” is in reality a trial de novo — a penalty for the same crime is fixed' twice, with the same potential for an increased penalty upon a successful “appeal.” But Pearce did not turn simply on the fact of conviction, appeal, reversal, reconviction, and a greater sentence. The court was there concerned with two defendants who, after their' convictions had been set aside on appeal, were reconvicted for the same offenses and sentenced to longer prison terms. In one case the term was increased from 10 to 25 years. Positing that a more severe penalty after reconviction would violate due process of law if imposed as purposeful punishment for having successfully appealed, the court concluded that such untoward sentences occurred with sufficient frequency to warrant the imposition of a prophylactic rule to ensure “that vindictiveness against a defendant for having successfully attacked his first conviction . . . [would] play no part in the sentence he receives after a new trial . . .” and to ensure that the apprehension of such vindictiveness does not “deter a defendant’s exercisé of the right to appeal or collaterally attack his first conviction _” ' 395 TJ. S., at 725. Our view of the Kentucky two-tier system of administering criminal justice, however, does not lead us to believe, and there is nothing in the record' or presented in the briefs to show, that the hazard of being penalized for seeking a new trial, which underlay the holding of Pearce, also .inheres in the de novo trial arrangement. Nor are we convinced that defendants convicted in Kentucky’s inferior courts would be deterred from seeking a second trial out of fear of judicial vindictiveness. The possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system. We note first the obvious: that the court which conducted Colten’s trial and imposed the final sentence was not the court with whose work Colten was sufficiently dissatisfied to seek a different result on appeal; and it is not the court that is asked to do over what it thought it had already done correctly. Nor is the de novo court even asked to find error in another court’s work. Rather, the Kentucky court in which Colten had the unrestricted-right to have a hew trial was merely asked to accord the same trial, under the same rules and procedures, available to defendants whose cases are begun in that court in the first instance. It would also appear that, however understandably a court of general jurisdiction might feel that the defendant who has had a due process trial ought to be satisfied with it, the de novo court in the two-tier system is much more likely to reflect the attitude of the Kentucky Court of Appeals in this case when it stated that “the inferior courts are not designed or. equipped to conduct error-free trials, or to insure full recognition of constitutional freedoms. They are courts of convenience, to. provide speedy and inexpensive means of disposition of charges of minor offenses.” Colten v. Commonwealth, 467 S. W. 2d, at 379. We see no reason, and none is offered, to assume that the de novo court will deal, any more strictly with those who insist on a'trial in the superior court after conviction in the Quarterly Court than it' would with those defendants . whose cases are filed originally in the superior court and who choose to put the State to its proof in a trial subject to constitutional guarantees. It may often be that the superior court will impose a punishment more severe than that received from the inferior court. But. it no more follows that such a sentence is a vindictive penalty for seeking \ superior court trial than that the inferior court imposed a lenient penalty. The trial de novo represents a completely fresh determination of guilt or innocence. It is not an appeal on the record. As far as we know, the record from the lower court is not before the superior court and is irrelevant to its proceedings. In all likelihood, the trial de novo court is not even informed of the sentence imposed in the inferior court and can hardly be said to have “enhanced” the sentence. In Kentucky, disorderly conduct is punishable by six months in jail and a fine of-$500. The inferior court fined Colten $10, the trial de novo court $50. We haive no -basis for concluding that the latter court did anything other than invoke the normal processes of a criminal trial and then sentence in accordance with the normal standards applied in that court to cases tried there in' the first instance. We cannot conclude, on the basis of the present record or our understanding, that the prophylactic rule-announced in Pearce is appropriate in the context of the system by which Kentucky administers criminal justice in the less serious criminal cases. It is suggested, however, that the sentencing strictures imposed bj Pearce are essential in order to minimize an asserted unfairness to criminal defendants who must endure a trial in an inferior court with less-than-adequate protections in order to secure a trial comporting completely with constitutional guarantees. We are not persuaded, however, that the Kentucky arrangement' for dealing with the less serious offenses disadvantages defendants any more or any less than trials conducted in a court of general jurisdiction in the first instance, as long as the latter are always available'. Proceedings in the inferior courts are simple and speedy, and, if the results in Colten’s case are any evidence, the penalty is not characteristically severe. Such proceedings offer, a defendant the opportunity to learn about the prosecution’s case and, if he chooses, he need not reveal his own. He may also plead guilty without a trial'and promptly secure a dé novo trial in a court of general criminal jurisdiction. He cannot, and .will not, face the realistic threat of a prison sentence in the inferior court without having the help of counsel, whose advice will also be available in determining whether to seek a new trial, with the slate wiped clean, or to' accept the penalty imposed by the inferior court. The State has no such options. Should it not prevail in the lower court, the case is terminated, whereas the defendant has the choice of beginning anew. In reality his choices are to accept the decision of the judge and the sentence imposed in the inferior court or to reject what in effect is no more than an offer in settlement of his case and seek the judgment of judge or jury in the superior court, with sentence to be determined by the full record made in that court. We cannot say that the Kentucky trial de novo system, as such, is unconstitutional or that it presents hazards warranting the restraints called for in North Carolina v. Pearce, particularly since such restraints might, to the detriment of both defendant and State, diminish the. likelihood that inferior courts would'impose lenient sentences ’whose effect would be to limit the discretion of a superior court judge or jury if the defendant is retried and found guilty. Colten’s alternative contention is that the Double Jeopardy Clause prohibits the imposition of an enhanced penalty upon reconviction. The Pearce Court rejected the same contention in the context of that case, 395 U. S., at 719-720. Colten urges that his claim is stronger because the Kentucky system forces a defendant to expose himself to jeopardy as a price for securing a trial that comports with the Constitution. That was, of course, the situation in Pearce, where reversal of the first conviction was for constitutional error. The contention also ignores that ^ defendant can bypass the inferior court simply by pleading guilty and erasing immediately thereafter any consequence that would otherwise follow from tendering the plea. The judgment of the Kentucky Court of Appeals is Affirmed. This version of the facts is taken largely from the opinion of the Kentucky Court of Appeals. Colten v. Commonwealth, 467 S. W. 2d 374, 375-376 (Ky. 1971). Colten testified that only the arresting officer ordered him to leave and that the three orders were uttered in such rapid succession that he had little opportunity to comply. App. 49-51. This was disputed by a policeman who testified that earlier he twice asked appellant to leave and gave the admonition quoted in the text. Id., at 23-24. Our own examination of the record indicates that the Kentucky.courts' resolution of this factual dispute was a fair one. Cf. Cox v. Louisiana, 379 U. S. 536, 545 n. 8 (1965). In his brief appellant makes a passing reference to the possibility of violence on the part of police and suggests that he remained on the scene to avert misdeeds or to be a potential witness to them. Yet he builds no factual basis for a reasonable apprehension of violence and seemingly dispels whatever force such a contention might have when- he states in his brief: “In the overwhelming majority of cases, that suspicion, [of police brutality] is undoubtedly wrong, but it is there.” Brief for Appellant 36. Appellant attacks on overbreadth grounds other subsections of the disorderly conduct statute, such as those that prohibit the making of an “unreasonable noise” and the use of “abusive or obscene language.” Ky. Rev. Stat. §§ 437.016 (b), (c) (Supp. 1968). But Colten was not convicted of violating these subsections and they are not properly before us in this case.' E. g., Ariz. Rev. Stat. Ann. §22-371 et seq. (1956 and Supp. 1971-1972); Ark. Stat. Ann. §44-501 et seq. (1964); Colo. Rule Crim. Proc. 37 (f); Fla. Stat. Ann. § 924.41 et seq. (Supp. 1972-1973); Ind. Ann. Stat. §9-713 et seq. (1956 and Supp. 1971); Kan. Stat. Ann. § 22-3610 et seq. (Supp. 1971); Me. Dist. Ct. Crim. Rule 37 et seq.; Md. Ann. Code, Art. 5, § 43 (1968); Mich. Stat. Ann. § 28.1226 (Supp. 1972); Minn. Stat. §§ 488.20, 633.20 et seq. (1969); Miss. Code Ann. §§ 1201, 1202 (Supp. 1971); Mo. Sup. Ct. Rule 22; Mont. Rev. Codes Ann. §95-2001 et seq. (1947); Neb. Rev. Stat. §29-601 et seq. (1964); Nev. Rev. Stat. §189.010 et seq. (1969); N. H. Rev. Stat. Ann. §§ 502:18, 502-A:11-12 (1968); N. M. Stat. Ann. §36-15-1 et seq. (Supp. 1971); N. C. Gen. Stat. §§ 15-177 et seq., 20-138 (1965 and Supp. 1971); N. D. Cent. Code § 33-12-40 et seq. (1960); Pa. Stat. Ann., Tit. 42, §3001 et seq. (Supp. 1972-1973); Pa. Const., Sched..Art. 5, § 16 (r) (iii) (Philadelphia); Tex. Code Crim. Proc., Arts. 44.17, 45.10 (1966); Va. Code Ann. § 16.1-129 et seq. (1950); Wash. Rev. Code §3.50.380 et seq. (Supp. 1971); W. Va. Code Ann. §50-18-1 et seq. (1966 and Supp. 1971). Misdemeanors are defined as those crimes punishable by a maximum of one year in jail and a $500 fine. Ky. Rev. Stat. §§ 25.010, 26.010 (1962 and Supp. 1968). What the Kentucky Court of Appeals calls inferior courts include county, quarterly, justice’s and police courts. In all cases in which the punishment is limited to a fine of $20, the inferior courts have original jurisdiction. Ky. Rev. Stat. §25.010 (1962). In all other misdemeanor cases their jurisdiction is -concurrent with that, of the circuit courts. Ky. Rev. Stat. § 23.032 (Supp. 1968). Kentucky denominates an application for a trial de novo an “appeal.” However, the right to a new trial is unconditional and exists even when a defendant seeks redetermination of questions of law. Ky. Rules Crim. Proc. 12.02, 12.06. A general discussion of how these courts operate may be found in 47 Am. Jur. 2d, Justices of the Peace §§ 49-120. E. gr., Massachusetts, North Carolina, Pennsylvania. Mann v. Commonwealth, - Mass. -, 271 N. E. 2d 331 (1971); State v. Spencer, 276 N. C. 535, 173 S. E. 2d 765. (1970); Pa. Stat. Ann., Tit. 42, § 3001 et seq. (Supp. 1972-1973); Pa. Const., Sched. Art. 5, § 16 (r)(iii) (Philadelphia). E. g., North Carolina, Virginia. State v. Sparrow, 276 N. C. 499, 173 S. E. 2d 897 (1970); Evans v. City of Richmond, 210 Va. 403, 171 S. E. 2d 247 (1969). See, e. g., People v. Olary, 382 Mich. 559, 170 N. W. 2d 842 (1969) ; State v. DeBonis, 58 N. J. 182; 276 A. 2d .137 (1971). However, the trial judge in the Fayette Quarterly Court, where Colten was tried, is a professional. North Carolina v. Pearce, 395 U. S. 711 (1969), applies: Bronstein v. Superior Court, 106 Ariz. 251, 475 P. 2d 235 (1970); State v. Shak, 51 Haw. 626, 466 P. 2d 420 (1970); Eldridge v. State, 256 Ind. 113, 267 N. E. 2d 48 (1971); Cherry v. State, 9 Md. App. 416, 264 A. 2d 887 (1970); Commonwealth v. Harper, 219 Pa. Super.. 109, 280 A. 2d 637 (1971). Contra: Mann v. Commonwealth, - Mass. -, 271 N. E. 2d 331 (1971); People v. Olary, 382 Mich. 559, 170 N. W. 2d 842 (1969); State v. Stanosheck, 186 Neb. 17, 180 N. W. 2d 226 (1970); State v. Sparrow, 276 N. C. 499, 173 S. E. 2d 897 (1970); Evans v. City of Richmond, 210 Va. 403, 171. S. E. 2d 247 (1969). New Mexico prohibits enhanced sentencing altogether. N. M. Stat. Ann. §36-15-3 (Supp. 1971). Pearce applies: Rice v. North Carolina, 434 F. 2d 297 (CA4 1970), vacated and remanded on ground of possible mootness, 404 U. S. 244 (1971); contra: Lemieux v. Robbins, 414 F. 2d 353 (CA1 1969), cert. denied, 397 U. S. 1017 (1970). See also Manns v. Allman, 324 F. Supp. 1149 (WD Va. 1971), holding that Pearce does not apply where an enhanced penalty is imposed by a jury rather than a judge. In Colten’s case the súperior court judge did'know about the $10 fine. Colten’s counsel in closing argument stated what the penalty had been, App. 93, although clearly he need not have done so. Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:

sc_casesourcestate

37

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed. AMERICAN EXPORT LINES, INC. v. ALVEZ et al. No. 79-1. Argued February 26, 1980 Decided May 12, 1980 BreNNAN, J., announced the judgment of the Court and delivered an - opinion, in which White, BlackmuN, and SteveNS, JJ., joined. Burger, C. J., concurred in the judgment. Powell, J., filed an opinion concurring in the judgment, post, p. 286. Marshall, J., filed a dissenting opinion, in which Stewart and RehNQUIst, JJ., joined, post, p. 286. Stephen K. Carr argued the cause and filed briefs for petitioner. Paul C. Matthews argued the cause and filed a brief for respondent Alvez. Peter M. Pryor and William M. Kimball filed a brief for respondent Joseph Yinal Ship Maintenance, Inc. Mr. Justice Brennan announced the judgment of the Court and delivered an opinion, in which Mr. Justice White, Mr. Justice Blackmun, and Mr. Justice Stevens joined. Sea-Land Services, Inc. v. Gaudet, 414 U. S. 573 (1974), held that under the nonstatutory maritime wrongful-death action fashioned by Moragne v. States Marine Lines, 398 U. S. 375 (1970), the widow of a longshoreman mortally injured aboard a vessel in state territorial waters could recover damages for the loss of her deceased husband’s “society.” The question in this case is whether general maritime law authorizes the wife of a harbor worker injured nonfatally aboard a vessel in state territorial waters to maintain an action for damages for the loss of her husband’s society. We conclude that general maritime law does afford the wife such a cause of action. I Respondent Gilberto Alvez lost an eye while working as a lasher aboard petitioner’s vessel SS Export Builder in New York waters. He commenced an action for damages against petitioner in the New York Supreme Court on grounds of negligence and unseaworthiness. Leave to amend respondent’s complaint to add his spouse as a plaintiff for loss of society was denied by the New York Supreme Court, Special Term, on the authority of Igneri v. Cie. de Transports Oceaniques, 323 P. 2d 257 (CA2 1963), cert. denied, 376 U. S. 949 (1964), in which the Court of Appeals for the Second Circuit ruled that an injured longshoreman’s wife was not entitled to compensation for loss of her husband’s society. App. to Pet. for Cert. Al. The Appellate Division of the New York Supreme Court reversed, and granted Alvez’ motion to amend, reasoning that Gaudet, rather than Igneri, was controlling authority. 59 App. Div. 2d 883, 399 N. Y. S. 2d 673 (1st Dept. 1977). Upon certification (App. to Pet. for Cert. A6-A7), the New York Court of Appeals agreed that the vitality of Igneri had been sapped by Gaudet and by other developments in the law, and held that Mrs. Alvez should be permitted to maintain her claim for loss of society under maritime law. 46 N. Y. 2d 634, 389 N. E. 2d 461 (1979). We granted certiorari. 444 U. S. 924 (1979). We affirm. II At oral argument, the Court raised, sua sponte, the question whether this case fell within the Court's statutory jurisdiction to review “[fjinal judgments or decrees rendered by the highest court of a State in which a decision could be had_” 28 U. S. C. § 1257. The question is a close one. The New York Court of Appeals order granting leave to amend the complaint was only the predicate to a decision on the merits of the claim for loss of society; that order, therefore, is not “final” in the strict sense of a decree that leaves nothing further to be addressed by the state courts. Nor does the Court of Appeals judgment, as originally entered, readily fit into any of the categorical exceptions to strict finality which the Court has developed in construing § 1257. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 476-487 (1975). Thus, were the case in the posture in which it stood when the petition for certio-rari was filed, we might well determine that the judgment lacked sufficient characteristics of finality to warrant an assertion of our appellate jurisdiction. Since the writ of certiorari was granted, however, this case — including the claim for loss of society — has been tried, and respondent Alvez has prevailed. Tr. of Oral Arg. 7-8. Counsel for petitioner American Export Lines has informed the Court at oral argument that petitioner’s appeal from the trial verdict against it will not challenge that element of the verdict which awarded damages for loss of society to Mrs. Alvez. Id., at 10, 41-42. Furthermore, it is conceded that no federal question, except that which we are now asked to resolve, remains in the litigation. Id., at 6. So far as respondent’s wife’s claim for loss of society is concerned, it thus appears that “the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state-court proceedings.” Cox Broadcasting, supra, at 480; see Radio Station WOW v. Johnson, 326 U. S. 120, 123-127 (1945). As a practical matter, then, we conclude that the judgment below upholding the legal tenability of Mrs. Alvez’ claim falls— at present — within a categorical exception to strict finality. “[N]ow that the case is before us . . . the eventual costs, as all the parties recognize, will certainly be less if we now pass on the questions presented here rather than send the case back with those issues undecided.” Gillespie v. United States Steel Corp., 379 U. S. 148, 153 (1964). Ill In Igneri v. Cie. de Transports Oceaniques, the Court of Appeals for the Second Circuit rejected the loss-of-society claim of a longshoreman’s wife in a maritime personal injury action. The Igneri opinion was carefully constructed within the framework of then-applicable doctrines governing maritime remedies. At the time, there was no clear decisional authority sustaining a general maritime law right of recovery for loss of society. 323 F. 2d, at 265-266; compare Savage v. New York, N. & H. S. S. Co., 185 F. 778, 781 (CA2 1911) (adopting opinion of Hough, District Judge) (dictum), with New York & Long Branch Steamboat Co. v. Johnson, 195 F. 740 (CA3 1912). It was also thought established, as Igneri stated, “that the damages recoverable by a seaman’s widow suing for wrongful death under the Jones Act do not include recovery for loss of consortium,” 323 F. 2d, at 266 (emphasis added); see Michigan Central R. Co. v. Vreeland, 227 U. S. 59 (1913). Too, it was far from evident that the rule of Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946), entitling a longshoreman to maintain an action for unseaworthiness, would extend to permit recovery for loss of society by his spouse. 323 F. 2d, at 267-268. Thus, the principles of maritime law prevalent in 1963 militated against, rather than supported, the creation of a right to recover for loss of society in Igneri. Subsequent developments, however, have altered the legal setting within which we confront a claim for loss of society due to personal injury. In 1970, Moragne v. States Marine Lines, 398 U. S. 375, overruled The Harrisburg, 119 U. S. 199 (1886), and held that an action for wrongful death based upon unseaworthiness is maintainable under general federal maritime law. Moragne itself did not fully define the new, nonstatutory, cause of action, and its contours were further shaped some four years later by Sea-Land Services, Inc. v. Gaudet, 414 U. S. 573 (1974). Gaudet held, inter alia, that the maritime wrongful-death remedy created by Moragne encompassed the recovery of damages for loss of society by a decedent's widow. So, it is no longer correct to assume— as did Igneri — that the warranty of seaworthiness affords no relief to the spouse of a longshoreman. More importantly, Gaudet provides the conclusive decisional recognition of a right to recover for loss of society that Igneri found lacking. To be sure, Gaudet upheld a claim for loss of society in the context of a wrongful-death action. But general federal maritime law is a source of relief for a longshoreman’s personal injury, Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 412-414 (1953), just as it is a source of remedy for wrongful death, Moragne, supra. Within this single body of judge-formulated law, there is no apparent reason to differentiate between fatal and nonfatal injuries in authorizing the recovery of damages for loss of society. The vitality of the longshoreman is logically irrelevant once we have accepted the principle that injury suffered by a longshoreman’s spouse from loss of society should be compensable, when proved. Nothing intrinsic to the Gaudet rule, therefore, should cabin its application to wrongful death. Petitioner argues that the reach of Gaudet’& principle must be limited by the fact that no right to recover for loss of society due to maritime injury has been recognized by Congress under § 2 of the Death on the High Seas Act (DOHSA), 46 U. S. C. § 762; see Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 620 (1978), or the Jones Act, 46 U. S. C. § 688. But it is a settled canon of maritime jurisprudence that “ ‘it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.’ ” Moragne v. States Marine Lines, supra, at 387, quoting, with approval, The Sea Gull, 21 F. Cas. 909, 910 (No. 12,578) (CC Md. 1865); accord, Sea-Land Services, Inc. v. Gaudet, supra, at 583. Plainly, neither statute embodies an “established and inflexible” rule here foreclosing recognition of a claim for loss of society by judicially crafted general maritime law. DOHSA comprehends relief for fatal injuries incurred on the high seas, 46 U. S. C. § 761. To be sure, Mobil Oil Corp. v. Higginbotham, supra, construed DOHSA to forbid general maritime law supplementation of the' elements of compensation for which the Act provides. But Higginbotham never intimated that the preclusive effect of DOHSA extends beyond the statute’s ambit. To the contrary, while treating the statutory remedies for wrongful deaths on the high seas as exclusive, Higginbotham expressly reaffirmed that Gaudet governs recoveries for wrongful deaths on territorial waters. 436 U. S., at 623-625; see Moragne, supra, at 397-398. And if DOHSA does not pre-empt general maritime law where fatalities occur within territorial waters, it follows a fortiori that the Act does not exclude federal maritime law as a source of relief for nonfatal injuries upon the same waters. Nor do we read the Jones Act as sweeping aside general maritime law remedies. Notwithstanding our sometime treatment of longshoremen as pseudo-seamen for certain Jones Act purposes, International Stevedoring Co. v. Haverty, 272 U. S. 50 (1926); cf. Seas Shipping Co. v. Sieracki, supra, at 100-102, the Jones Act does not exhaustively or exclusively regulate longshoremen’s remedies, see Moragne, 398 U. S., at 395-396, and n. 12; Pope & Talbot, Inc. v. Hawn, supra, at 413-414; Igneri, 323 F. 2d, at 266. Furthermore, the Jones Act lacks such preclusive effect even with respect to true seamen; thus, we have held that federal maritime law permits the dependents of seamen killed within territorial seas to recover for violation of a duty of seaworthiness that entails a stricter standard of care than the Jones Act. Moragne, supra, at 396, n. 12; see Gilmore & Black, supra n. 9, at 367-368. Apart from the question of statutory pre-emption, the liability schemes incorporated in DOHSA and the Jones Act should not be accorded overwhelming analogical weight in formulating remedies under general maritime law. The two statutes were enacted within days to address related problems — yet they are “hopelessly inconsistent with each other.” Gilmore & Black, supra n. 9, at 359; see id., at 360-367. The Jones Act itself was not the product of careful drafting or attentive legislative review, id., at 277, 327; assuming that the statute bars damages for loss of society, it does so solely by virtue of judicial interpretation of the Federal Employers’ Liability Act, 45 U. S. C. § 51 et seg., which was incorporated into the Jones Act, see, e. g., Ivy v. Security Barge Lines, Inc., 606 F. 2d 524, 526 (CA5 1979) (en banc), cert. pending, No. 79-1228. Thus, a remedial omission in the Jones Act is not evidence of considered congressional policymaking that should command our adherence in analogous contexts. And we have already indicated that “no intention appears that the [Death on the High Seas] Act have the effect of foreclosing any nonstatu-tory federal remedies that might be found appropriate to effectuate the policies of general maritime law.” Moragne, supra, at 400; Gaudet, 414 U. S., at 588, n. 22. Far more persuasive at the present juncture are currently prevailing views about compensation for loss of society. Cf. Sea-Land Services, Inc. v. Gaudet, supra, at 587-588. As the Court of Appeals observed in Igneri: “At least this much is true. If the common law recognized a wife’s claim for loss of consortium, uniformly or nearly so, a United States admiralty court would approach the problem here by asking itself why it should not likewise do so. . . .” 323 F. 2d, at 260. At the time Igneri was decided, governing law in the relevant jurisdictions was substantially divided over the wife’s right to recover for loss of consortium. Id., at 260-264. But the state of the law is very different today. Currently, a clear majority of States permit a wife to recover damages for loss of consortium from personal injury to her husband. Furthermore, even in Igneri’s day, the generally accepted rule allowed a husband to gain damages for loss of consortium with his tortiously injured wife, id., at 260; so “clearly authorized” a common-law principle would have been translated into maritime law by the Igneri analysis, id., at 260, 267. And if Igneri implies that a husband may collect compensation under maritime law for loss of consortium with his injured wife, it follows that the same relief is due the wife who suffers a comparable loss because of wounds suffered by her husband, see, e. g., Duncan v. General Motors Corp., 499 F. 2d 835 (CA10 1974); cf. Orr v. Orr, 440 U. S. 268 (1979). Admiralty jurisprudence has always been inspirited with a “special solicitude for the welfare of those men who under [take] to venture upon hazardous and unpredictable sea voyages.” Moragne v. States Marine Lines, supra, at 387. As in Moragne and Gaudet, “[o]ur approach to the resolution, of the issue before us . . [is] consistent with the extension of this 'special solicitude’ to the dependents of [seafarers]. . . Oaudet, supra, at 577. The decision of the New York Court of Appeals is Affirmed. The Chief Justice concurs in the judgment. “The term 'society’ embraces a broad range of mutual benefits each family member receives from the others’ continued existence, including love, affection, care, attention, companionship, comfort, and protection.” Sea-Land Services, Inc. v. Gaudet, 414 U. S., at 585. Alvez’ injury was sustained before the effective date of the 1972 Amendments to the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S. C. § 901 et seq. Petitioner also impleaded Alvez’ employer, Joseph Vinal Ship Maintenance, Inc., for indemnification. Since Gaudet, one Federal Court of Appeals has expressly aligned itself with the Igneri rule, Christofferson v. Halliburton Co., 534 F. 2d 1147 (CA5), rehearing en banc denied, 542 F. 2d 1174 (1976), and a number of state and federal district courts have divided on the issue, compare, e. g., Pesce v. Summa Corp., 54 Cal. App. 3d 86, 126 Cal. Rptr. 451 (1975), and Giglio v. Farrell Lines, Inc., 424 F. Supp. 927 (SDNY 1977), appeal denied, No. 77-8014 (CA2, Feb. 17, 1977), with Davidson v. Schlussel Reederei KG, 295 So. 2d 700 (Fla. App. 1974), and Westcott v. McAllister Bros., Inc., 463 F. Supp. 1039 (SDNY 1978). See Note, The Finality Rule for Supreme Court Review of State Court Orders, 91 Harv. L. Rev. 1004 (1978). “Question: Mr. Carr [attorney for petitioner], what happens if the appellate division reverses? “Mr. Carr: If the appellate division reverses, it would not reverse on the question of Juanita Alvez’s claim for consortium. If the appellate division reverses, it would probably reverse on— “Question: Correct. “Mr. Carr: —instructions to the jury that may have been— “Question: Then the appellate division leaves that intact, the $50,000, right? “Mr. Carr: Yes, sir. “Question: Could I ask you if the New York court system has finally disposed of this federal issue of the right of the wife? “Mr. Carr: The New York state court system has finally disposed of the issue of the right of the wife. “Question: You have lost at trial? “Mr. Carr: Well, I don’t like to put it that way. “Question: Well, judgment has gone against you, your client? “Mr. Carr: There is judgment against my client. . . . “Question: Well, on the consortium issue the judgment has gone against your client? “Mr. Carr: Yes, indeed it has, Your Honor. “Question: And that issue has not — if you want to appeal in the state court system, the right of the wife is not subject to relitigation, is it? “Mr. Carr: The right of the wife is final as far as the New York state court system is concerned. “Question: Except as to amount, I suppose. “Mr. Carr: Except as to amount. “Question: Conceivably a reviewing court might reduce it. “Mr. Carr: With respect to exeessiveness, that is so. But as far as the wife’s right of consortium, that right is final in the state courts and cannot be relitigated in that forum. “Mr. Carr: The appellate division would say this is res judicata, this has been decided by the New York state Court of Appeals and does not permit you to pursue the matter further.” The dissent argues, post, at 287, n. 1, that petitioner’s counsel’s assertion that the New York courts would not reverse Mrs. Alvez’ trial victory, Tr. of Oral Arg. 10, is contradicted by statements of respondent Alvez’ counsel indicating or implying that American Export Lines “might find some grounds for error in the record,” id., at 21; see id., at 20. But respondent Alvez’ counsel could have said nothing else: since he is not representing petitioner American Export Lines, respondent Alvez’ attorney could hardly have conceded any element of petitioner’s case in the state courts. What is relevant, then, is petitioner’s counsel’s answer to this Court that “the appellate division . . . would not reverse on the question of Juanita Alvez’s claim for consortium. . . . [The New York courts] would leave it intact.” Id., at 10. Since American Export Lines’ counsel was aware of this Court’s concerns, it is fair to read this response as a concession by counsel — who was in a position to know his client’s strategy in the state courts — that Mrs. Alvez’ claim was no longer in jeopardy. Our ruling on finality only extends, of course, to Mrs. Alvez’ claim for loss of society, since we do not understand counsel for petitioner to concede that the other claims tried are beyond challenge. The fact that these other claims are nonfinal, however, need not preclude us from considering the final determination as to Mrs. Alvez’ claim. Cf. Gillespie v. United States Steel Corp., 379 U. S. 148, 153 (1964). Gaudet’s discussion of the issue of double liability did state: “[D]ecedent’s recovery did not include damages for the dependents’ loss of services or of society, and funeral expenses. Indeed, these losses — unique to the decedent's dependents — could not accrue until the decedent's death.” 414 U. S., at 591-592. In Christofferson v. Halliburton Co., 534 F. 2d, at 1150, the Court of Appeals for the Fifth Circuit inferred from that passage an intention to limit Gaudet to the wrongful-death context. But no such limitation is implicit. As a matter of logic, Gaudet’s statement that double liability is precluded in wrongful-death cases is not equivalent to the proposition that only wrongful-death cases preclude double liability. Moreover, the Gaudet opinion itself noted that damages may be assessed for loss of society in personal injury cases, 414 U. S., at 589-590; see Christofferson, supra, at 1153-1154 (Freeman, J., dissenting). Haverty was largely, if not completely, superseded by the Longshoremen’s and Harbor Workers’ Compensation Act of 1927, 33 U. S. C. § 901 et seq. See Swanson v. Marra Bros., 328 U. S. 1 (1946). But see G. Gilmore & C. Black, The Law of Admiralty 330, 454r-455 (2d ed. 1975). Sieracki has been overtaken by .the 1972 Amendments to the Longshoremen’s Act. See Gilmore & Black, supra, at 449. Respondent Joseph Yinal Ship Maintenance, Inc., the interests of which parallel petitioner’s, has advanced the argument that recovery for loss of society is barred by the Longshoremen’s and Harbor Workers’ Compensation Act as applicable at the time of the injury — i. e., before the 1972 Amendments. It does not appear that this contention was raised below; in any event, it has no merit. Whatever the limitations on recovery against employers under the pre-1972 LHWCA, longshoremen retained additional rights based upon the warranty of seaworthiness. See Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946); cf. Sea-Land Services, Inc. v. Gaudet, supra. Forty-one States and the District of Columbia allow recovery by a wife or couple: Swartz v. United States Steel Corp., 293 Ala. 439, 304 So. 2d 881 (1974); Schreiner v. Fruit, 519 P. 2d 462 (Alaska 1974); Glendale v. Bradshaw, 108 Ariz. 582, 503 P. 2d 803 (1972); Missouri Pacific Transp. Co. v. Miller, 227 Ark. 351, 299 S. W. 2d 41 (1957); Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, 525 P. 2d 669 (1974); Colo. Rev. Stat. § 14-2-209 (1973); Hopson v. St. Mary’s Hospital, 176 Conn. 485, 408 A. 2d 260 (1979); Yonner v. Adams, 53 Del. 229, 167 A. 2d 717 (1961); Hitaffer v. Argonne Co., 87 U. S. App. D. C. 57, 183 F. 2d 811 (1950); Gates v. Foley, 247 So. 2d 40 (Fla. 1971); Brown v. Georgia-Tennessee Coaches, Inc., 88 Ga. App. 519, 77 S. E. 2d 24 (1953); Nishi v. Hartwell, 52 Haw. 188, 473 P. 2d 116 (1970); Nichols v. Sonneman, 91 Idaho 199, 418 P. 2d 562 (1966); Dini v. Naiditch, 20 Ill. 2d 406, 170 N. E. 2d 881 (1960); Troue v. Marker, 253 Ind. 284, 252 N. E. 2d 800 (1969); Acuff v. Schmit, 248 Iowa 272, 78 N. W. 2d 480 (1956); Kan. Stat. Ann. § 23-205 (Supp. 1979); Kotsiris v. Ling, 451 S. W. 2d 411 (Ky. 1970); Me. Rev. Stat. Ann., Tit. 19, § 167-A (Supp. 1979); Deems v. Western Maryland R. Co., 247 Md. 95, 231 A. 2d 514 (1967); Diaz v. Eli Lilly & Co., 364 Mass. 153, 302 N. E. 2d 555 (1973); Montgomery v. Stephan, 359 Mich. 33, 101 N. W. 2d 227 (1960); Thill v. Modern Erecting Co., 284 Minn. 508, 170 N. W. 2d 865 (1969); Miss. Code Ann. § 93-3-1 (1972); Novak v. Kansas City Transit, Inc., 365 S. W. 2d 539 (Mo. 1963); Duffy v. Lipsman-Fulkerson & Co., 200 F. Supp. 71 (Mont. 1961) (applying Montana law); Luther v. Maple, 250 F. 2d 916 (CA8 1958) (applying Nebraska law) (semble); General Electric Co. v. Bush, 88 Nev. 360, 498 P. 2d 366 (1972); N. H. Rev. Stat. Ann. § 507:8-a (1968); Ekalo v. Constructive Serv. Corp., 46 N. J. 82, 215 A. 2d 1 (1965); Millington v. Southeastern Elevator Co., 22 N. Y. 2d 498, 239 N. E. 2d 897 (1968); Clouston v. Remlinger Oldsmobile Cadillac, Inc., 22 Ohio St. 2d 65, 258 N. E. 2d 230 (1970); Okla. Stat., Tit. 32, § 15 (Supp. 1979); Ore. Rev. Stat. § 108.010 (1975); Hopkins v. Blanco, 457 Pa. 90, 320 A. 2d 139 (1974); Mariani v. Nanni, 95 R. I. 153, 185 A. 2d 119 (1962); Hoekstra v. Helgeland, 78 S. D. 82, 98 N. W. 2d 669 (1959); Tenn. Code Ann. § 25-109 (Supp. 1979); Whittlesey v. Miller, 572 S. W. 2d 665 (Tex. 1978); Vt. Stat. Ann., Tit. 12, §5431 (Supp. 1979); W. Va. Code § 48-3-19a (1976); Moran v. Quality Aluminum Casting Co., 34 Wis. 2d 542, 150 N. W. 2d 137 (1967). See also Sea-Land Services, Inc. v. Gaudet, 414 U. S., at 587; see generally W. Prosser, Law of Torts 895-896 (4th ed. 1971). Question: What is the state of the court whose decision the Supreme Court reviewed? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:

sc_respondentstate

13

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. PETERS v. KIFF, WARDEN No. 71-5078. Argued February 22, 1972 Decided June 22, 1972 Marshall, J., announced the Court’s judgment and delivered an opinion, in which Douglas and Stewart, JJ., joined. White, J., filed an opinion concurring in thé judgment, in which BreNNAN and Powell, JJ., joined, post, p. 505.- Burger, C. J., filed a dissenting opinion, in which BlackmuN and RehNQüist, JJ'., joined, post, p. 507. Edward T. M. Garland argued the cause and filed a brief for petitioner. Dorothy T. Beasley, Assistant Attorney General of Georgia, argued the cause for respondent. With her on the brief were Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, . and Courtney Wilder Stanton and David L. G. King, Jr., Assistant Attorneys General. Jack Greenberg, James M. Nabrit III, and Cluirles Stephen Ralston filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae, urging reversal. Mr. Justice Marshall announced the judgment of the Court and an opinion in which Mr. Justice Douglas and Mr. Justice Stewart join. Petitioner alleges that Negroes were, systematically excluded from the grand jury that indicted him and the petit jury that convicted him of burglary in the Superior Court of Muscogee County, Georgia. In consequence he contends that his conviction is invalid under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Because he is not himself a Negro, the respondent contends that he has hot suffered any unconstitutional discrimination, and that his conviction' must stand. ' On that ground, the Court of Appeals affirmed the denial of his petition for federal habeas corpus. 441 •F. 2d 370' (CA5 1971). We granted certiorari. 404 U. S. 964 (1971). We reverse. I At the- outset, we reject the contention that the only-issue before this Court is petitioner’s challenge to the composition of the grand jury that indicted him. The respondent argues that the challenge to the petit jury is not before us, because it fails to appear in the list of questions presented by the petition for certiorari. We do not regard that omission as controlling, however, in light of the fact that the two claims have been treated together at every stage of the proceedings below, they are treated together in the body of the petition for certiorari, and they are treated together in the brief filed by petitioner on. the merits in this Court. Petitioner cannot fairly be said to have abandoned his challenge to the petit jury, and the State has had ample opportunity to respond to that challenge, having done so at length below. Moreover, in this case the principles governing the two claims are identical. First, it appears that the same selection process was used for both the grand jury and the petit jury. Consequently, the question whether jurors were in fact excluded on the basis of race will be answered the same way for both tribunals. Second, both the grand jury and the petit jury in this case must be measured solely by the general Fourteenth Amendment guarantees of due process and equal protection, and not by the specific constitutional provisions for the grand' jury and the petit jury. For the Fifth Amendment right to a grand jury does not apply in a state prosecution. Hurtado v. California, 110 IT. S. 516 (1884). And the Sixth Amendment right to a petit jury, made applicable to the States through the Due Process Clause of the Fourteenth Amendment in Duncan v. Louisiana, 391 U. S. 145 (1968), does not apply to state trials that took place before the decision in Duncan, as petitioner’s trial did. DeStefano v. Woods, 392 U.S. 631 (1968). Accordingly, we turn now to the commands of equal protection and of due process. II This Court has never before considered a white defendant’s challenge to the exclusion of Negroes from jury service. The essence of petitioner’s claim is this: that the tribunals that indicted and convicted him were constituted in a manner that is prohibited by the Constitution and by statute; that the impact of that error on any individual trial is unascertainable; and that consequently any indictment or conviction returned by such tribunals must be set aside. There can be no doubt that, if petitioner’s allegations are true, both tribunals involved in this case were illegally constituted. He alleges that Negroes were systematically excluded from both the grand jury and the petit jury. This Court has repeatedly held that the Constitution prohibits such selection practices, with respect to the grand jury, the petit jury, or both. Moreover, Congress has made it a crime for a public official to exclude anyone from a grand or petit jury on the basis óf race, 18 U. S. C. § 243, and this Court upheld the statute, approving the congressional determination that such exclusion would violate the express prohibitions of the Equal Protection Clause. Ex parte Virginia, 100 U. S. 339 (1880). The crime, and the unconstitutional state action, occur whether the- defendant is white or Negro, whether he is acquitted or convicted. In short, when a grand or petit jury has been selected on an impermissible basis, the existence of a constitutional violation does not depend on the circumstances of the person making the claim. It is a separate question, however, whether petitioner is entitled to the relief he seeks on the basis of that constitutional violation. Respondent argues that even if the grand and petit juries were unconstitutionally selected, petitioner is not entitled to relief on that account because he has not shown how he was harmed by the error. It is argued that a Negro defendant’s right to challenge the exclusion of Negroes from jury service rests on a presumption that a jury so constituted will be prejudiced against him; that no such presumption is available to a white defendant; and consequently that a white defendant must introduce. affirmative evidence of actual harm in order to establish a basis for relief. That argument takes too narrow a view of the kinds of harm that flow from discrimination in jury selection. The exclusion of Negroes from jury service, like the arbitrary exclusion of any other well-defined class of citizens, offends a number of related constitutional values. In Strauder v. West Virginia, 100 U. S. 303, 308-309 (1880), this Court considered the question from the point of view of the Negro defendant’s right to equal protection of the laws. Btrauder was part of a landmark trilogy oí cases, in which this Court first dealt with the problem of racial discrimination in jury selection. In Strauder itself, a Negro defendant sought to remove his criminal trial to the federal. courts, pursuant to statute, on the. ground that Negroes were excluded by law from the grand and petit juries in .the state courts; the Court upheld his claim. In Virginia v. Rives, 100 U. S. 313 (1880), a Negro defendant sought removal on the ground that there were in fact no Negroes in the venire from which his jury was drawn; the Court held that, without more, his claim did not come within the precise terms of the removal statute. Finally, in Ex parte Virginia, 100 U. S. 330 (1880), a state judge challenged the' statute under which he was convicted for the federal crime of excluding Negroes from state grand and petit juries; the Court upheld the statute as a valid means of enforcing the Equal Protection Clause. Because each of these three cases was amenable to decision on the narrow basis of an analysis of the Negro defendant’s right to equal protection, the Court brought all three under that single analytical umbrella. But even in 1880 the Court recognized that other constitutional values were implicated. In Btrauder, the Court observed that the exclusion of Negroes from jury service injures not only defendants, but also other members of the excluded class: it denies the class of potential jurors the “privilege of participating equally '. . . in the administration of justice,” 100 U. S., at 308, and it stigmatizes the whole class, even those who . do not wish to participate, by declaring them unfit for jury service and thereby putting “a-brand upon them, affixed by law, an assertion of their inferiority.” Ibid. It is now clear that injunctive relief is available to vindicate these interests of the excluded jurors and the stigmatized class. Carter v. Jury Commission of Greene County, 396 U. S. 320 (1970); Turner v. Fouche, 396 U. S. 346 (1970); White v. Crook, 251 F. Supp. 401 (MD Ala. 1966). Moreover, the Court has also. recognizecLthat the exclusion of a discernible class from jury service injures not only those defendants who belong to the excluded, class, but other defendants as well, in that it destroys the possibility that the jury will reflect a representative cross section of the community. In Williams v. Florida, 399 U. S. 78 (1970), we sought to delineate some of the essential features of the jury that is guaranteed, in certain circumstances, by the Sixth Amendment. We concluded that it comprehends; inter alia, “a fair possibility for obtaining a representative cross-section of the community.” 399 U. S., at 100. Thus if the Sixth Amendment were applicable here, and petitioner were challenging a pqst-Duncan petit jury, he would clearly have standing to challenge the systematic exclusion of any identifiable group from jury service. The precise question in this case, then, is whether a State may subject a defendant to indictment and trial by grand and petit juries that are plainly illegal in their composition, and leave the defendant without recourse on the ground that he had in any event no right to a grand or petit jury at all. We conclude, for reasons that follow, that to do so denies the defendant due process of law. Ill “A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U. S. 133, 136 (1955). The due process right to a competent and impartial tribunal is quite separate from the right to any particular form of proceeding. Due process requires a competent and impartial tribunal in administrative hearings, Goldberg v. Kelly, 397 U. S. 254, 271 (1970), and in trials to a judge, Tumey v. Ohio, 273 U. S. 510 (1927). Similarly, if a State chooses, quite apart from constitutional compulsion, to use a grand or petit jury, due process imposes limitations on the composition of that Jury- Long before this Court held that the Constitution imposes the requirement of jury trial on the States, it was well established that the Due Process Clause protects a defendant from jurors who are actually incapable of rendering an impartial verdict, based on the evidence and the law. Thus a defendant cannot, consistent with due process, be subjected to trial by an insane juror, Jordan v. Massachusetts, 225 U. S. 167, 176 (1912), by jurors who are intimidated by the threat of mob violence, Moore v. Dempsey, 261 U. S. 86 (1923), or by jurors who have formed a fixed opinion about the case from newspaper publicity, Irvin v. Dowd, 366 U. S. 717 (1961). Moreover, even if there is no showing of actual bias in the tribunal, this Court has held that due process is denied by circumstances that create the likelihood or the appearance of bias. This rule, too, was well established long before the right to jury trial was made applicable in state trial's, and does not depend on it. Thus it has been invoked in trials to a judge, e. g., Tumey v. Ohio, 273 U. S. 510 (1927); In re Murchison, 349 U. S. 133 (1955); Mayberry v. Pennsylvania, 400 U. S. 455 (1971); and in pre-Duncan state jury trials, e. g., Turner v. Louisiana, 379 U. S. 466 (1965); Estes v. Texas, 381 U. S. 532, 550 (1965). In Tumey v. Ohio, supra, this Court held that a judge could not, consistent with due process, try a case when he had a financial stake in the outcome, notwithstanding the possibility that he might resist the temptation to be influenced by that interest. And in Turner v. Louisiana, supra, the Court held that a jury could not, consistent with due process, try a case after it had been placed in the protective custody of the principal prosecution witnesses, notwithstanding the possibility that the jurors might not be influenced by the association. , As this Court said in In re Murchison, supra, “[f] airness of course requires an absence of actual' bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.” 349 U. S., at 136. These principles compel the conclusion that a State cannot, consistent with due process, subject a defendant to indictment or trial by a jury that has been selected in an arbitrary and discriminatory manner, in violation of the Constitution and laws of the United States. Illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole judicial process. They create' the appearance of bias in the decision of j individual cases, and they increase the risk of actual ¡ bias as well. If it were possible to say with confidence that the risk of bias resulting from the arbitrary action involved here is confined to cases involving Negro defendants, then perhaps the right to challenge the tribunal on . that ground could be similarly confined. The case of the white defendant might then be thought to present a species of" harmless error. But the exclusion from jury service of a substantial and identifiable class of citizens has a potential impact.that is too subtle and too pervasive to admit of confinement to particular issues or particular cases. First, if we assume that the exclusion of Negroes affects the fairness of the jury only with respect to issues presenting a clear opportunity for the operation of- race prejudice, that assumption does not provide a workable guide for decision in particular cases. For the opportunity to appeal to race prejudice is latent in a vast range of issues, cutting across the entire fabric of our society. Moreover, we are unwilling to make the assumption Ji that the exclusion of Negroes has relevance only for j j issues involving race. When any large and identifiable1 segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance, in any case that may be presented. It is in the nature of the practices here challenged that proof of actual harm, or. lack of harm, is virtually impossible to adduce. For there is no way to determine what jury would have been selected under a constitutionally valid selection system, or how that jury would have decided the case. Consequently, it is necessary to decide on principle which side shall suffer the consequences of unavoidable uncertainty. See Speiser v. Randall, 357 U. S. 513, 525-526 (1958); In re Winship, 397 U. S. 358, 370-373 (1970) (Harlan, J., concurring). In light of the great potential for harm latent in an unconstitutional jury-selection system, and the strong interest of the criminal defendant in avoiding that harm, any doubt should be resolved in favor of giving the opportunity for challenging the jury to too many defendants, rather than giving it to too few. ■ Accordingly, we hold that, whatever his race, a criminal ¡defendant has standing to challenge the systein used to select his grand or petit jury, on the ground that it Arbitrarily excludes from service the members of any race, and thereby denies him due process of law. This certainly is true in this case, where the claim is that Negroes were systematically excluded from jury service. For Congress has made such exclusion a crime. 18 U. S. C. § 243. IV Having resolvfed the question of standing, we turn briefly to the further disposition of this case. There is, of course, no question here of justifying the .system under attack. For whatever may be the law with regard to other exclusions from jury service, it is clear beyond all doubt that the exclusion of Negroes cannot pass constitutional muster. Accordingly, if petitioner’s allegations are correct, and Negroes were systematically excluded from his grand and petit juries, then he was indicted, and convicted by tribunals that fail to satisfy the elementary requirements of due process, and neither the indictment nor the conviction can stand. Since he was precluded from proving the facts alleged in support of his claim, the judgment must be reversed and the case remanded for further proceedings consistent with this opinion. Reversed and remanded. The history of this litigation is long and- complicated. Petitioner was indicted on June 6, 1966. His first trial resulted in a conviction that was reversed on Fourth Amendment grounds, 114 Ga. App. 595, 152 S. E. 2d 647 (1966). A second trial, held on December 8, 1966, resulted in the conviction challenged here, which was affirmed, 115 Ga. App. 743, 156 S. E. 2d 195 (1967). Petitioner for the first time raised the claim of discriminatory jury selection in a petition for federal habeas corpus, which was summarily denied on July 5, 1967. The Court of Appeals affirmed on the ground that petitioner had failed to exhaust then-available state remedies with respect to his otherwise highly col-orable claim, 397 F. 2d 731, 735-741 (CA5 1968). Petitioner then filed a second petition for federal habeas corpus on the same ground, alleging that intervening state court decisions clearly foreclosed his claim in the state courts. That petition was denied on the grounds (1) that it was repetitious, (2) that petitioner had failed to exhaust, and (3) that his claims were lacking in merit. App. 15. The Court of Appeals again affirmed, rejecting the first two grounds and resting entirely on the third, i. e., rejecting petitioner’s substantive claims. 441 F. 2d 370 (1971). The exhaustion point thus having been resolved in petitioner’s favor below, the State quite properly does not press it here. See Brief for Appellee in Court of Appeals 28-43. The jury lists were made up from the tax digests, which were by law segregated according to race; moreover, the jury lists contained a proportion of Negroes much smaller than the proportion in the population or intthe tax digests.- The jury-selection system of Muscogee County, Georgia, was explored in detail and struck down as unconstitutional in Vanleeward v. Rutledge, 369 F. 2d 584 (CA5 1966), contemporaneously with petitioner’s trial. On petitioner’s first federal appeal, the Court of Appeals suggested, though it did not hold, that the Vanleeward findings and conclusions oh this point ihould be regarded as conclusive with respect to Peters, and thereby the expense and delay of a full evidentiary hearing might be avoided, 397 F. 2d, at 740. A number of state courts and lower federal courts have imposed a “same class” rule on challenges to discriminatory jury selection, holding that the exclusion of a class from jury service is subject to challenge only by a member of the excluded class. Only a few courts have rejected the rule; e. g., Allen v. State, 110 Ga. App. 56, 137 S. E. 2d 711 (1964) (not followed by other panels of same court); State v. Madison, 240 Md. 265, 213 A. 2d 880 (1965). The cases are collected, and criticized, in Note, The Defendant’s Challenge to a Racial Criterion in Jury Selection, 74 Yale L. J. 919 (1965). See also Note, The Congress, The Court and Jury Selection; 52 Va. L. Rev. 1069 (1966); This Court avoided passing on the "same class” rule in Fay v. New York, 332 U. S. 261, 289-290 (1947), and has never since then approved or rejected it. He also claims his own rights under the Equal Protection Clause have been violated, a claim we need not consider in light of our disposition. Alexander v. Louisiana, 405 U. S. 625 (1972); Arnold v. North Carolina, 376 U. S. 773 (1964); Eubanks v. Louisiana, 356 U. S. 584 (1958); Reece v. Georgia, 350 U. S.. 85 (1955); Cassell v. Texas, 339 U. S. 282 (1950); Hill v. Texas, 316 U. S. 400 (1942); Smith v. Texas, 311 U. S. 128 (1940); Pierre v. Louisiana, 306 U. S. 354 (1939); Rogers v. Alabama, 192 U. S. 226 (1904); Carter v. Texas, 177 U. S. 442 (1900); Bush v. Kentucky, 107 U. S. 110 (1883). Avery v. Georgia, 345 U. S. 559 (1953); Hollins v. Oklahoma, 295 U. S. 394 (1935). Sims v. Georgia, 389 U. S. 404 (1967); Jones v. Georgia, 389 U. S. 24 (1967) ; Whitus v. Georgia, 385 U. S. 545 (1967); Coleman v. Alabama, 377 U. S. 129 (1964); Patton v. Mississippi, 332 U. S. 463 (1947); Hale v. Kentucky, 303 U. S. 613 (1938); Norris v. Alabama, 294 U. S. 587 (1935); Martin v. Texas, 200 U. S. 316 (1906); Neal v. Delaware, 103 U. S. 370 (1881); Strauder v. West Virginia, 100 U. S. 303 (1880). The principle of the representative jury was first articulated by this Court as a requirement of equal protection, in cases vindicating the right of a Negro defendant to challenge the systematic exclusion of Negroes from his grand and petit juries. E. g., Smith v. Texas, 311 U. S. 128, 130 (1940). Subsequently, in the exercise of its supervisory power over federal courts, this Court extended the principle, to permit any defendant to challenge the arbitrary exclusion from jury service of his own or any other class. E. g., Glasser v. United States, 315 U. S. 60, 83-87 (1942); Thiel v. Southern, Pacific Co., 328 U. S. 217, 220 (1946); Ballard v. United States, 329 U. S. 187 (1946). Finally it emerged as an aspect of the constitutional right to jury trial in Williams v. Florida, 399 U. S. 78, 100 (1970). It is of course a separate question whether his challenge would prevail, i. e., whether the exclusion might be found to have sufficient justification. . See Rawlins v. Georgia, 201 U. S. 638, 640 (1906), holding that' a State may exclude certain occupational categories from jury service “on the bona fide ground that it [is] , for the good of the community that their regular work should not be interrupted.” We have no occasion here to consider what interests might justify an exclusion, or what standard should be applied, since the only question in this case is not the validity of an exclusion but simply standing to challenge it. Or the class may be expanded slightly to include white civil rights workers, see Allen v. State, 110 Ga. App. 56, 62, 137 S. E. 2d 711, 715 (1964) (alternative holding). In rejecting, for the federal courts, the exclusion of women from jury service, this Court made the following observations, which are equally relevant to the exclusion of other discernible groups: “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded.” Ballard v. United States, 329 U. S. 187, 193-194 (1946) (footnote omitted). Hill v. Texas, 316 U. S. 400, 406 (1942). Question: What state is associated with the respondent? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:

songer_treat

G

What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. Pamela TULLOS, Wife of/and Ronald David Tallos, Plaintiffs-Appellees Cross-Appellants, v. RESOURCE DRILLING, INC., and Superior Oil Company, Defendants-Appellants Cross-Appellees. No. 84-3099 Summary Calendar. United States Court of Appeals, Fifth Circuit. Jan. 11, 1985. Rehearing Denied Feb. 5, 1985. Weigand, Weigand & Meyer, Joseph J. Weigand, Jr., Houma, La., for defendants-appellants cross-appellees. Wiedemann & Fransen, Michael A. Fenasci, A. Remy Fransen, Jr., New Orleans, La., for plaintiffs-appellees cross-appellants. Before WILLIAMS, JOLLY, and HILL, Circuit Judges. ROBERT MADDEN HILL, Circuit Judge: In this maritime action, the employer, Superior Oil Company (Superior), and the vessel owner, Resource Drilling, Inc. (Resource), are appealing the judgment of the district court as to the seaman status of the injured worker, Donald Tullos, the jury’s finding of negligence under general maritime law, the jury’s finding of only ten percent contributory negligence by the seaman and the seaman’s wife’s right to a claim for loss of consortium under general maritime law. The seaman on cross-appeal is challenging the remittitur allegedly forced on him concerning the award received by his wife for loss of consortium and the court’s failure to submit to the jury the issue of arbitrary and capricious denial of maintenance and cure benefits by his employer. Because the remittitur may not be challenged on appeal if agreed to as it was here, we do not reach that issue. We affirm the judgment of the district court except as follows: the case is reversed and remanded for submission to the jury of the issue of arbitrary and capricious denial of maintenance and cure. I. Background Donald Tullos was an oil well inspector for Superior at the time of the injury which is the subject matter of this lawsuit. Superior hired Resource to drill an offshore oil well. Resource was the owner and operator of the drilling vessel upon which Tullos was injured on February 10, 1982. Tullos testified that he discovered mud in the pump room of the vessel, walked through it and some oil, scraped his shoes, and then ascended the stairs to the captain’s office. After encountering additional mud and oil on the stairs, he slipped and fell on the second flight of stairs, injuring his back. An employee of Resource who worked as a “mud man” testified that during February, the month in which the accident occurred, the mud pumps were leaking because of the use of improper packing material and that the overflowing mud which was mixed with diesel fuel was not being properly cleaned up. Resource introduced printouts from a pitograph which measures mud loss to show that there was no mud loss on the 9th and 10th of February. A motor man testified that the stairs were cleaned by himself, other motor men, a toolpusher, and roustabouts. The district court found, as a matter of law, Tullos to be a Jones Act seaman. Other issues were presented to a jury in special interrogatories. The jury found Resource negligent under general maritime law and awarded $325,000 in damages to Tullos and $100,000 in damages to his wife for loss of consortium. The jury also found Tullos to have been ten percent contributorily negligent. As to Tullos’ employer, Superior, the jury found the company liable for maintenance and cure, specifically finding that Tullos had not yet reached maximum medical cure. The district court reduced the jury awards against Resource and in favor of Tullos and his wife by ten percent in view of the finding of contributory negligence. The court also awarded maintenance and cure of $15 per day against Superior, to be paid until Tullos reaches maximum cure. The court later granted a remittitur of $60,-000 for loss of consortium. On appeal, Superior and Resource have jointly raised the following issues: whether Tullos was a Jones Act seaman; whether a Jones Act seaman may raise a negligence claim under general maritime law against a vessel owner; whether the evidence supported the finding of negligence; whether Tullos’ fault should have been found to have been 100% or at least 50% because he admitted walking in oil and mud prior to climbing the stairs; whether the wife of a Jones Act seaman is entitled to loss of consortium under general maritime law against a vessel owner. On cross-appeal Tullos and his wife have raised the following additional issues: whether the district court violated Tullos’ due process and equal protection rights by ordering him to accept the remittitur in his wife’s separate claim for loss of consortium and whether the district court erred in ruling that as a matter of law Superior was not arbitrary and capricious in refusing maintenance and cure payments rather than submitting the question to the jury for a possible punitive damage award. II. Discussion 1. Seaman Status Appellants Superior and Resource first assert that the district court erred in finding Tullos to be a seaman within the meaning of the Jones Act, 46 U.S.C. § 688. Tullos alleges only that he is a seaman with respect to his employer, Superior. Seaman status is ordinarily a question of fact for the jury. In this case, the district judge ruled that as a matter of law, Tullos was a seaman. The judge is permitted to do this as explained in Abshire v. Seacoast Products, Inc., 668 F.2d 832 (5th Cir.1982): The Supreme Court ha[s] ... established the principle that seaman status is basically a question of fact____ This court has held, however, that the Supreme Court ... did not intend to strip the judge of his authority to direct a verdict or grant summary judgment, if there is no genuine issue of material fact to be submitted to the jury ____ Thus, although seaman status is an issue of fact, when there are no facts in dispute, a court may rule on the issue as a matter of law____ [I]f the Robison requisites are met and there is no dispute over these factors, the court may grant a summary judgment or directed verdict declaring as a matter of law that the plaintiff is a seaman. Id. at 835 (citations omitted). This Court has even found a district court to have erred in not deciding seaman status as a matter of law when “the facts governing plaintiff’s status as a seaman were established beyond cavil.” Landry v. Amoco Production Co., 595 F.2d 1070, 1071 (5th Cir.1979). For the district court to properly have determined that Tullos was a seaman as a matter of law, there must be no basis for reasonable persons to draw conflicting inferences from the evidence. Evidence is required under the Robison test for seaman status that (1) the worker was permanently assigned to or did a substantial portion of his work on a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water), and (2) the work he performed contributed to the function of the vessel or to the accomplishment of its mission or to the operation or welfare of the vessel in terms of its maintenance. Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959), as interpreted in Bouvier v. Krenz, 702 F.2d 89, 90 (5th Cir.1983), and Landry, 595 F.2d at 1073. Tullos was an oil well inspector for Superior which hired Resource to drill an offshore oil well and furnish the drilling vessel on which Tullos was subsequently injured. There is no real dispute as to Tullos’ permanent assignment to the vessel. There is also no real dispute that his work contributed to the mission of the vessel— drilling an oil well. The district court expressed concern as to whether an employee can be a seaman when his employer is not the operator of the vessel, but correctly determined that the case of Parks v. Dowell, 712 F.2d 154 (5th Cir.1983), was controlling on this issue. In Parks, the plaintiff worked on a drilling tender assisting in the drilling of a well owned by CNG. He was described as being CNG’s “company man” on the job: “He was paid by CNG to supervise the drilling operation. He was permanently assigned to the tender where he had his office and performed most of his duties.” Id. at 156. The plaintiff was found to be a seaman given that the tender was a vessel. In reaching its conclusion that Tullos was a seaman, the district court did not consider the additional cases presented to this Court on appeal by Tullos: Reed v. Pool Offshore Co., 521 F.Supp. 324 (W.D.La.1981), and Welch v. J. Ray McDermott & Co., 336 F.Supp. 383 (W.D.La.1972). Although in Reed the plaintiff was an employee of Crown Oilfield Services, Inc. performing duties for Crown aboard Mobil’s barge when he was injured, the district court found him to be a seaman under the Robison standard of permanent assignment to a vessel upon which duties are performed in furtherance of the mission of the vessel. 521 F.Supp. at 326-27. Similarly, in Welch the plaintiff was a welding inspector employed by FB & D which contracted to perform engineering work on a pipeline. He slipped in a bathroom on a barge not owned or operated by his employer. He was also found to be a seaman under the Robison requirements. 336 F.Supp. at 384. The undisputed facts pertaining to Tullos’ employment on the vessel owned by Resource are sufficient to satisfy the Robison requirements and permit a ruling as a matter of law that Tullos was a seaman. It should be noted, however, that meeting the Robison requirements usually merely provides sufficient evidence for seaman status to reach the jury. The district judge, in this case, however, felt bound by the very similar factual situation in Parks to make the ruling as a matter of law. He did not err in doing so. 2. Negligence under General Maritime Law Appellants make two preliminary arguments that Tullos, acknowledged for the purposes of this issue to be a seaman, was not entitled to a negligence claim under general maritime law against the vessel owner, Resource. First, they argue that a seaman cannot have a cause of action under general maritime law. This argument overlooks the fact that Tullos is not asserting his general maritime law claim against his Jones Act employer, but against Resource, the owner of the vessel upon which he was working when he was injured. A seaman injured while performing duties for his employer aboard a vessel may sue the vessel owner under general maritime law. See Reed, 521 F.Supp. at 326-27. Second, they argue that Tullos was on board the rig for purposes inimicable to the legitimate interests of the rig owner and therefore was owed no duty of care by the vessel owner. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct. 406, 410, 3 L.Ed.2d 550 (1959). Appellants’ argument is based on the following holding in Kermarec: “We hold that the owner of a ship in navigable waters owes to all who are on board for purposes not mimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.” Id. The intent of the holding was to eliminate distinctions between licensees and invitees as to the duty of care owed. Id. at 630, 79 S.Ct. at 409. No evidence or argument has been presented to support the allegation that Tullos was on board for purposes inimical to the vessel. To the contrary, his work on board the vessel was to monitor drilling operations by Resource which had been hired by Tullos’ employer to drill an oil and gas well in Louisiana coastal waters. As a separate issue, appellants claim there was insufficient evidence on which to submit the question of negligence to the jury because Tullos failed to prove that Resource knew or had reason to believe that the steps had mud on them prior to Tullos’ fall. Tullos points to testimony by the “mud man” that: (1) during February the mud pumps were leaking because inadequate packing was being used on them, and (2) mud was constantly tracked throughout the pump room and stern stairwell areas by the crew. The jury may well have inferred all of the requisite elements of negligence from this testimony in combination with Tullos’ own testimony. Questions of negligence in admiralty cases are fact questions. Cheek v. Williams-McWilliams Co., 697 F.2d 649, 652 (5th Cir.1983). “The rule is well established that findings of fact in admiralty cases are binding unless clearly erroneous.” Id. The appellants have not met their burden of showing that the negligence findings were clearly erroneous. 3. Comparative Negligence Appellants also argue that Tullos’ own actions were the sole cause of the accident and, in the alternative, that the fault was one half his. The jury found Tullos to be ten percent contributorily negligent. The clearly erroneous standard of review for facts applies to the apportionment of fault. See, e.g., Flowers Transportation, Inc. v. M/V Peanut Hollinger, 664 F.2d 112, 114 (5th Cir.1981). Based on the facts of this case, a finding of ten percent negligence by Tullos is not clearly erroneous. 4. .Loss of Consortium Appellants rely on Beltia v. Sidney Torres Marine Transport, 701 F.2d 491 (5th Cir.1983), to support their assertion that a seaman’s wife does not have a cause of action for loss of consortium under general maritime law. The specific holding of Beltia is “that the wife of a Jones Act seaman cannot base her loss of society claims on negligence under the general maritime law.” Id. at 494. Tullos explains this holding to mean that the husband must have a claim under general maritime law and not only be claiming relief under the Jones Act. For example, in Cruz v. Hendy International Co., 638 F.2d 719, 725 (5th Cir.1981), this Court found that “the spouse of a person entitled to recover for vessel unseaworthiness [under general maritime law] has a cause of action for loss of society whether the injured person was a member of a vessel crew or was for some other reason entitled to a seaworthy vessel.” Cruz notes, however, that loss of consortium is not available in a claim of negligence under the Jones Act. Id. Recently, this Court has discussed both Beltia and Cruz as follows: “The spouse of an injured crew member who survives his injury may recover her loss of society in an action for unseaworthiness because such an action is based on general maritime law____ However, the legislative remedy granted an injured seaman under the Jones Act does not include the right to claim such damages.” Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 479 (5th Cir.1984) (emphasis added). Tullos argues that because he did recover under general maritime law (on his negligence claim against Resource which was not his Jones Act employer), that is sufficient to support the loss of consortium claim. This argument is valid. Pamela Tullos’ loss of consortium claim was not asserted as part of the Jones Act relief sought but in conjunction with the negligence claim against Resource under general maritime law. The loss of consortium claim may stand. 5. Remittitur Tullos may not appeal the issue he raises concerning the district court’s compelling him to accept the remittitur on his wife’s claim for loss of consortium. The law of this Circuit is clear that even if a remittitur is accepted under protest, the plaintiff cannot appeal from it given that it was accepted. See Krahn v. B.F. Goodrich Co., 559 F.2d 308, 308 (5th Cir.1977), (citing Donovan v. Penn Shipping Co., 429 U.S. 648, 649-50, 97 S.Ct. 835, 836-37, 51 L.Ed.2d 112 (1977)). 6. Arbitrary and Capricious Failure to Pay Maintenance and Cure On' cross-appeal, Tullos has challenged the district court’s decision to remove from the jury the question of arbitrary and capricious refusal by Superior to pay maintenance and cure and his right to recover damages therefor. Tullos first raised the issue of the denial of maintenance and cure as being “wrongful” in his complaint. In the pre-trial order, Tullos phrased the issue as follows: The defendants have arbitrarily stopped maintenance and cure payments to Mr. Tullos. Therefore, plaintiff will seek punitive damages for the defendants [sic] refusal to pay these items of compensation and will seek to recover all back payments and future payments due him and all attorney’s fees. Tullos requested several jury instructions concerning the issue of maintenance and cure including the following one that was not given: In the event that you find that defendant was arbitrary and capricious in its denial of maintenance and cure to an injured seaman, this failure will subject the shipowner to penalties for such failure. Arbitrary means to do something without any reason. Capricious means to do something without good reason. The penalties for arbitrary and capricious failure to pay maintenance and cure are money damages for any mental anguish, humiliation, or aggrevation [sic] of the physical injuries suffered by the seaman for the expenses incurrred [sic] by the injured seaman to hire counsel for prosecution [sic] his claims for maintenance and cure. The district judge explained his withholding of the question of punitive damages for arbitrary and capricious denial of maintenance and cure as based on the employer’s legally valid belief that Tullos was not a seaman. Specifically, the court stated: ... I tell the plaintiffs that if they want to do any looking, I don’t propose to charge the jury on punitive damages with respect to the maintenance and cure issue, based not only upon the medical but also upon the legal proposition that until I read the Parks case, and even after I read it, if I were not bound by it, I would hold that he was not a seaman. I cannot say that it’s an unreasonable position on the part of the defendant saying that if I would have said that until you produced the Parks case, all of us agreed until then that nobody could find one case that dealt with a company [man] held to be a seaman. ... I’m going to tell the jury he’s a seaman when we get to the maintenance and cure, but I’m not going to give them the question on arbitrariness and penalty for the reasons I have said. Tullos did not object to the district court’s refusal to include in the jury charge the issues on his arbitrary and capricious denial of maintenance and cure claims. In addition to Parks, 712 F.2d 154, Tullos relies on two prior cases to establish his seaman status: Welch, 336 F.Supp. 383, and Reed, 521 F.Supp. 324. See supra note 2. Further, Tullos argues that it is inconsistent for Superior, who believed him to be a seaman to the extent of paying him maintenance and cure benefits, to not be held liable for the termination of those benefits based on legal doubt of his seaman status. A threshold issue is whether Tullos’ failure to formally object to the judge’s removal of the issue of arbitrary and capricious denial of maintenance and cure from the jury bars consideration of this issue on appeal. A commentator has evaluated the requirement for objections as follows: “The requirement of an objection is to be construed practically. Since one ‘purpose of informing the court of a supposed error is to give it an opportunity to reconsider its ruling and to make any changes deemed advisable,’ there is no need for a formal objection where the court is fully aware that the party does not agree with his decision.” 5A J. Moore & J. Lucas, Moore’s Federal Practice ¶ 46.02, at 1907 (2d ed. 1984) (pertaining to Fed.R.Civ.P. 46). Fed.R.Civ.P. 51 specifically applies to objections to instructions to the jury. It states in pertinent part: “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.” Fed.R.Civ.P. 51. However, this Court has recently found that objections formally required under Rule 49(a) concerning special verdicts were not required to preserve an issue on appeal when the requested instructions and verdict form were submitted to the trial court and the court’s attention was drawn to the issue in question. See Solis v. Rio Grande City Independent School, 734 F.2d 243, 248 n. 4 (5th Cir.1984). Further, this Court has previously noted that defendants failing to object to a court’s instruction to the jury that the plaintiff was a Jones Act seaman did not thereby lose their right to appellate review of the issue of seaman status being taken from the jury. See Menard v. Penrod Drilling Co., 538 F.2d 1084, 1088 n. 4 (5th Cir.1976). In the case sub judice, although the denial of the requested instruction and the court’s refusal to submit to the jury the arbitrary and capricious issue were not specifically objected to by Tullos, the issue may nevertheless be deemed to have been preserved on appeal. See Solis, supra. It is therefore necessary to consider whether the district court erred in impliedly directing a verdict by removing the issue of arbitrary and capricious denial of benefits from the purview of the jury. The trial judge’s reasoning that Tullos’ seaman status was not clear to the court until after he read the Parks case during trial does not provide a basis for removing this issue from the jury. The court itself found Tullos to be a seaman, and Tullos’ employer, Superior, had paid him maintenance and cure due a seaman, but then terminated those benefits. It is the termination of the benefits that Tullos alleges was arbitrary and capricious and for which he sought punitive damages. The district court also considered the evidence presented concerning the arbitrariness of the termination of maintenance and cure benefits. Tullos points to the testimony of three treating physicians who found him unable to return to his work aboard drilling rigs. The physician presented by the appellants at trial testified that where Tullos would work would not be a significant consideration “with the exception of an off-shore transit. That is, if he had to go back and forth on a boat and it was in rough seas, and he was doing that type of activity, I think that could potentially be injurious____” (emphasis added). Tullos argues that the appellants were aware of his continued disability and not only refused to pay his maintenance stipend but also all medical and hospital bills presented to them except for those from medical examiners chosen by themselves. Tullos argues that the appellants were trying to render him destitute so that he would settle the case and were “physician shopping” to create issues relative to his medical problems. Superior contends that it ceased paying maintenance and cure on October 28, 1982 (having paid it since April 13, 1982) “because the medical evidence did not support the plaintiff’s claim that he had not reached maximum cure.” Superior does not argue that any question of Tullos’ seaman status played any role in its decision to discontinue maintenance and cure payments. Superior lists all of the physicians that Tullos saw from February 16, 1982, to May 14, 1982, for whose care Superior paid. However, when on October 28, 1982, Tullos saw an orthopedic surgeon selected by Superior, Dr. G. Gernon Brown, who found no evidence of injury and expressed the opinion that Tullos could return to work, Superior terminated its maintenance and cure payments. On the same day, Tullos’ attorney wrote Superior requesting reinstatement of payments. As to the diagnoses and prognoses of the physicians, they are not so clear and consistent as to validate removing the issue of arbitrary and capricious denial of the maintenance and cure from the jury. The diagnoses varied from soft tissue injury or chronic back sprain to a “lumbar facet syndrome” requiring spinal fusion to “spondylitis” to no indication of any organic disorder by certain tests. “[T]he cut-off point for maintenance and cure is not that at which the seaman recovers sufficiently to return to his old job but rather the time of maximum possible cure.” Lirette v. K & B Boat Rentals, Inc., 579 F.2d 968, 969 (5th Cir.1978). “It is the medical, not the judicial, determination of permanency that terminates the right to maintenance and cure .... ” Hubbard v. Faros Fisheries, Inc., 626 F.2d 196, 202 (1st Cir.1980) (citing Vella v. Ford Motor Co., 421 U.S. 1, 4, 95 S.Ct. 1381, 1383, 43 L.Ed.2d 682 (1975)); cf. Holmes v. J. Ray McDermott & Co., 734 F.2d 1110, 1115-17 (5th Cir.1984). However, such a determination should be unequivocal to terminate the right to maintenance and cure. 626 F.2d at 202. In the case sub judice, extensive controversy was present in the medical opinions. A punitive damage claim in the context of the denial or termination of maintenance and cure at one time was limited only to reasonable attorneys’ fees. See e.g., Lirette, 579 F.2d at 969; Kraljic v. Berman Enterprises, Inc., 575 F.2d 412, 416 (2d Cir.1978); Blanchard v. Cheramie, 485 F.2d 328, 331 (5th Cir.1973). However, subsequent cases “have established that, in addition to ... attorneys’ fees, punitive damages for [willful and arbitrary] refusal are available under the general maritime law.” Holmes v. J. Ray McDermott & Co., 734 F.2d 1110, 1118 (5th Cir.1984); accord Harper v. Zapata Off-Shore Co., 741 F.2d 87, 88 (5th Cir.1984). Examples of employer behavior that could merit punitive damages have included (1) laxness in investigating a claim; (2) termination of benefits in response to the seaman’s retention of counsel or refusal of a settlement offer; (3) failure to reinstate benefits after diagnosis of an ailment previously not determined medically. See Harper v. Zapata Off-Shore Co., 741 F.2d 87, 90 (5th Cir.1984); Holmes, 734 F.2d at 1118. The latter example was the situation in Holmes. Although the facts of the case sub judice are not as compelling in showing arbitrary and willful conduct by the employer, they are sufficient for a jury question: Superior was requested by counsel to reinstate benefits and further diagnoses were obtained such that it was not medically certain that Tullos had reached maximum cure. There is some question of the promptness with which Tullos informed Superior of his subsequent medical diagnoses and expenses, but any delay was not sufficient to remove the question from the jury. See Harrell v. Dixon Bay Transportation Co., 718 F.2d 123, 129-30 (5th Cir.1983). It should be noted that in its most recent opinion on the subject, this Court expressed its belief “that the willful, wanton and callous conduct required to ground an award of punitive damages requires an element of bad faith.” Harper, 741 F.2d at 90. The jury needs to resolve whether Superior’s reliance on a report requested from its own physician to terminate benefits in conjunction with a refusal to pay further medical bills submitted was done in bad faith. The issue of whether Tullos had reached maximum cure was presented to the jury which found that he had not. Sufficient evidence was presented to raise a jury question as to the arbitrariness or capriciousness of the denial of his benefits in view of the continuing conflicting diagnoses and prognoses. In essence, Superior chose one doctor from many and followed his recommendation. This may not be arbitrary and capricious, but it is sufficient evidence entitling Tullos to have the jury resolve his arbitrary and capricious claim. For the foregoing reasons, the judgment below is AFFIRMED in part; REVERSED and REMANDED in part for submission to a jury on the issue of arbitrary and capricious denial of maintenance and cure. . In fact, Tullos specifically argues, in another context, that he is not a seaman with respect to Resource. His negligence claim against Resource under general maritime law, it is argued, permitted his wife to bring a claim for loss of consortium, which she could not do as the wife of a Jones Act seaman. . Appellants imply some impropriety in these cases not being brought to the attention of the court by Tullos at trial. While the additional cases are not necessary to the resolution of the issue of seaman status on appeal, nothing precludes our considering them. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:

songer_respond1_1_3

D

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. INGRASSIA v. A. C. W. MFG. CORPORATION. Circuit Court of Appeals. Second Circuit. March 5, 1928. No. 189. 1. Courts <§=3290 — Cause of action as to unfair competition, joined with patent infringement suit, held properly dismissed, in absence of diversity of citizenship. In absence of diversity of citizenship between litigants, cause of action as to unfair competition, joined with patent infringement suit, held properly dismissed. 2. Patents <§=3310(0 — Cause of action for patent infringement, failing to allege statutory conditions for grant of patents, held insufficient (35 USCA §§ 31, 32; District Court rule 25). Cause of action for patent infringement held insufficient for failure to allege that invention was not known or used in this country before invention or discovery, and not patented or described in any printed publication, or that for more than two years prior to application, it was not in public use or on sale, and that no application for foreign patent for invention was filed 12 months prior to filing application in this country, and that it was not abandoned, all of which is required under Rev. St. §§ 4886, 4887 (35 USCA, §§ 31, 32), and being necessary allegations of ultimate facts required by District Court rule 25. . 3. Patents <§=3310(1'/s) — Right of inventor claiming Infringement depends on affirmative pleading. Inventor’s right in patent infringement suit depends on his pleading of necessary or ultimate facts to bring him within the statute on which his right depends. Appeal from tbe District Court of tbe United States for tbe Southern District of New-York. Suit by Leon Ingrassia against tbe A. C. W. Manufacturing Corporation for infringement of patent and for unfair competition. Decree of dismissal, and plaintiff appeals. Affirmed. Newell & Spencer, of New York City (George M. Dowe, of New York City, of counsel), for appellant. Wilfred S. Stachenfeld, of New York City (Irving M. Obrieght, of New York City, of counsel), for appellee. Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges. PEE CURIAM. There is no diversity óf citizenship, for the appellant is a citizen of New York and the appellee is a New York corporation. This bill sets forth infringement of patents, utility, notice, alleged infringement, threat thereof, and a prayer for damages, It also contains allegations, in a separate cause of action, for unfair competition on alleged copying of the size, stand, and shape of the appellant’s box and pads, the color of the label and advertising text, all of which is stated to be trading upon the good will and good name of the appellant with intent to deceive the public. Injunction is sought for unfair competition, as well as for unlawful infringement of the patent. The bill of complaint was dismissed, because the cause of action as to the patent infringement was insufficiently alleged, and the cause of action as to unfair competition, because of lack of diversity of citizenship and want of jurisdiction. This court and the District Courts of this circuit have consistently held that, in the absence of diversity of citizenship between the litigants, a patent infringement suit or a statutory trade-mark infringement may not he joined with a suit for unfair competition in trade. Gerrard v. Cary (D. C.) 9 F.(2d) 949, affd. (C. C. A.) 9 F.(2d) 957; Planten v. Gedney (C. C. A.) 224 F. 382; Tyler Co. v. Ludlow-Saylor Wire Co. (C. C. A.) 212 F. 156; Thaddeus Davids Co. v. Davids (C. C. A.) 192 F. 915; Matl. Casket Co. v. N. Y. & Bklyn. Casket Co. (C. C.) 185 F. 533. The Supreme Court has ruled likewise in Geneva Furniture Co. v. Karpen, 238 U. S. 254, 35 S. Ct. 788, 59 L. Ed. 1295; Standard Paint Co. v. Trinidad Asphalt Mfg. Co., 220 U. S. 446, 31 S. Ct. 456, 55 L. Ed. 536; A. Leschen, etc., Co. v. Broderick Bascom, etc., Co., 201 U. S. 166, 26 S. Ct. 425, 50 L. Ed. 710. The cause of action as to unfair competition was properly dismissed. The e.ause of action for patent, infringement is insufficient, for it does not allege that the invention was not owned or used in this "country before his invention or discovery thereof, and not patented or described in any printed publication in this or any foreign country before the invention or discovery thereof, or that for more than two years pri- or to his application for a patent therefor it was not in public use or on sale in this country; that no application for a foreign patent for said invention was filed for more than 12 months prior to the filing of the application in this country, and that it was not abandoned; in other words, that it does not allege the conditions for the grant of patents provided for in sections 4886, 4887, of the United States Eevised Statutes (35 USCA §§ 31, 32; Comp. St. §§ 9430, 9431). These are necessary allegations of ultimate facts required by rule XXV of the District Court (198 E. xxv, 115 C. C. A. xxv). The inventor’s right depends upon his affirmative pleading of necessary or ultimate facts to bring him within the statute on which his right depends. American Laundry Machinery Co. v. Prosperity Co. (C. C. A.) 295 F. 819; Bayley & Sons, Inc., v. Braunstein Bros. (D. C.) 237 F. 671; Rubber Tire Wheel Co. v. Davie (C. C.) 100 F. 85. The hill of complaint was insufficient. Decree affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:

songer_counsel2

E

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party The INDEPENDENT NAIL AND PACKING CO., Inc., Defendant, Appellant, v. Kenneth MITCHELL, Plaintiff, Appellee. No. 6354, United States Court of Appeals First Circuit. April 13, 1965. Thomas H. Mahony, Boston, Mass., with whom Edward F. Mahony, Boston, Mass., was on brief, for appellant. Edward M. Swartz, Boston, Mass., with whom Joseph Schneider, Boston, Mass., was on brief, for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. HARTIGAN, Senior Circuit Judge (by designation). This is an appeal from a judgment of the United States District Court for the District of Massachusetts entered on a jury’s verdict on January 27, 1964, for plaintiff-appellee, in the total amount of $40,209.75, including interest, for damages for personal injury. Plaintiff was injured on August 25, 1959, while assisting in the construction of a pole barn near Newton,. Illinois. A pole barn is not unlike an ordinary barn except that it is secured to the earth by large poles set into the ground, rather than by being anchored to a concrete foundation. Work was begun before the first of August. The first days were spent laying out the bam and sinking the poles. Thereafter trusses, siding, a roof, and chicken roosts were added. In adding the siding and the roosts plaintiff and the two other workers involved used pole barn nails manufactured by defendant. These nails are five or six inches long, are made of a particularly hard steel, and have two inches of annular ridging on the end to hold them firmly in the wood. Plaintiff had not worked with this type of nail before. Apparently the three men spent five or six days actually using pole barn nails, using ten to fifteen pounds of them a day. When they were hammering the nails into the softer wood of the poles, about three percent would break off, about an inch from the head. The free part of the nail would “zing” through the air. When the men began hammering the nails into the harder green oak siding, about five percent would break. Neither the plaintiff nor the other two workers wore safety glasses. Apparently someone mentioned to Finley, the farmer building the barn, that the nails were breaking, but he did nothing. On August 25 plaintiff was engaged in adding a chicken roost of green oak. As he struck one nail (“right square on the head,” he says) a portion of it broke off and struck him in the right eye, blinding him in that eye. The other portion of the nail was left in the wood, standing straight up. Plaintiff brought suit below relying on claims in both breach of warranty and negligence. The trial court granted defendant’s motion for a directed verdict on the claim of breach of warranty and the case was submitted to the jury on the negligence issue. Since jurisdiction in this action is founded on diversity of citizenship, we must apply the same law as a Massachusetts court would apply. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Illinois law, the law of the place of the injury, therefore applies as to substantive issues, Klaxon Co. v. Stentor Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Medeiros v. Perry, 332 Mass. 158, 124 N.E.2d 240 (1955), while Massachusetts law applies as to burden of proof of contributory negligence, Palmer v. Hoffman, 318 U.S. 109, 117, 63 S.Ct. 477, 87 L.Ed. 645 (1943); Gregory v. Maine Cent. R. Co., 317 Mass. 636, 639-640, 59 N.E.2d 471, 474, 159 A.L.R. 714 (1945). Defendant first raises some question as to whether the lack of privity between plaintiff and defendant precludes this action. It does not, if negligence has been proved, since Illinois allows suit where the nature of the object is such that it may become inherently or imminently dangerous if it is negligently manufactured. Rotche v. Buick Motor Co„ 358 Ill. 507, 513-514, 193 N.E. 529, 532 (1934) (per curiam) (dictum); Day v. Barber-Colman Company, 10 Ill.App. 2d 494, 135 N.E.2d 231 (1956). It would seem to us a pole barn nail is such an object; we have found no Illinois case to the contrary. Defendant’s contention that plaintiff assumed the risk is without merit. Illinois does not recognize that defense except in the master and servant relationship. B. Shoninger Co. v. Mann, 219 Ill. 242, 76 N.E. 354, 3 L.R.A.,N.S., 1097 (1905); Conrad v. Springfield Consol. Ry. Co., 240 Ill. 12, 88 N.E. 180 (1909); Holsman v. Darling State Street Corp., 6 Ill.App.2d 517, 128 N.E.2d 581 (1955). Defendant cites the case of Herendeen v. Hamilton, 317 Ill.App. 644, 47 N.E.2d 335 (1943), as containing language to the contrary. We do not agree with it. See Holsman v. Darling State Street Corp., supra, 128 N.E.2d at 585. Since it is not disputed by the defendant that the master and servant relationship was not here involved, defendant's contention must fail. Defendant’s next contention, that as a matter of .law the plaintiff was guilty of contributory negligence, carries considerably more weight. The procedural aspects of contributory negligence, most importantly the burden of proof, are governed by Massachusetts law, and in that state the burden of proof rests upon the defendant. Gregory v. Maine Cent. R. Co., supra, at 639-640, 59 N.E.2d at 474. The substantive aspects of the defense are governed by the law of Illinois, and in that state contributory negligence is a complete bar. Dee v. City of Peru, 343 Ill. 36, 174 N.E. 901 (1931). I-t should first be noted that there is a distinction between assumption of the risk and contributory negligence. As was said by Mr. Justice Holmes in the case of Schlemmer v. Buffalo, Rochester, & P. Ry., 205 U.S. 1, 12, 27 S.Ct. 407, 51 L.Ed. 681 (1907), the difference is one bf proximate degree.: “[T]he practical difference of the two ideas is in the degree of their proximity to the particular harm. The preliminary conduct of getting into the dangerous employment or relation is said to be accompanied by assumption of the risk. The act more immediately leading to a specific accident is called negligent. *• * *» In short! a risk may be assumed non-negligently. It is clear that the courts of Illinois recognize this distinction. Minters v. Mid-City Management Corporation, 331 Ill.App. 64, 72 N.E.2d 729 (1947). On the facts of the case before us, it is arguable that the plaintiff did assume the risk. But that is not the question to be decided; the question is whether, beyond that, he acted negligently. Counsel for defendant have directed our attention to a group of Illinois cases which hold that one who knowingly exposes himself to danger without taking precautions commensurate to the known danger is guilty of contributory negligence as a matter of law. Dee v. City of Peru, supra; Illinois Cent. R. Co. v. Oswald, 338 Ill. 270, 170 N.E. 247 (1930); Ames v. Terminal R. Ass’n of St. Louis, 332 Ill.App. 187, 75 N.E.2d 42 (1947). We do not think these cases are controlling. As was pointed out in the case of Davis v. Springfield Lodge No. 158, etc., 24 Ill.App.2d 102, 164 N.E.2d 243 (1960), most important in these cases is the requirement of knowing exposure to danger. While we will admit that the plaintiff here must have been aware of the possibility of his being struck a glancing blow by a flying nail, we cannot hold as a matter of law that Mitchell must have known that the flying portion of the nail would cause him severe bodily injury, particularly that it would blind him in one eye. In fact, we are by no means convinced that severe injury is the necessary, or even the probable, result of the breaking of a pole barn nail. We think that the question of contributory negligence was properly left to the jury and that they were entitled to believe plaintiff’s statement that he did not think there would be any danger in continuing. It is also relevant that plaintiff’s two co-workers, who, in varying degrees, were experienced in carpentry and construction, also continued at their work without taking precautions. Having precluded that plaintiff is not barred by contributory negligence under Illinois law, it remains to determine whether, under Massachusetts standards, it was proper to submit to the jury the question of contributory negligence. We think we are bound in the resolution of this question by the Massachusetts case of Potter v. John Bean Div. of Food Mach. & Chem. Corp., 344 Mass. 420, 182 N.E.2d 834 (1962). There an experienced employee of an automobile repair shop was demonstrating to a fellow employee how to operate a wheel balancer. The wheel balancer involved was clamped onto the wheel, and the wheel was then spun at high speeds with the balancer on it. Twice the experienced employee hammered the screws on the balancer tight, knowing he might thereby strip the screws. Twice the wheel had to be stopped because of the vibration that set in. The third time the balancer worked properly. When the other employee attempted to do the balancing a fourth time, the balancer flew off, striking both employees. A jury’s verdict for both of them was upheld, the verdict being based on negligent manufacture of the balancer. If the Massachusetts court seems more willing than some Illinois courts to leave the question of contributory negligence to the jury, it should be pointed out that in Illinois, unlike Massachusetts, burden of proof as to contributory negligence is on the plaintiff. Wilson v. Illinois Cent. R. Co., 210 Ill. 603, 71 N.E. 398 (1904). Following the spirit of the John Bean case, we cannot say the jury was wrong on the issue of contributory negligence. If there is a difference between that ease and the present one, it would seem to us the present one gives more reason for upholding the jury’s verdict. The defendant also contends that the evidence did not justify submission of the issue of liability to the jury. We think the contrary was true. Defendant’s assistant plant manager, one Alan D. Stone, testified that three probable causes for the nail’s breaking were improper hammering, improper manufacture, and inclusions of slag in the material used to make the nails. An expert witness, Irving Berman, a graduate metallurgist of the Massachusetts Institute of Technology, testified that, in his opinion, failure of the nail was caused either by improper selection and use of the material, or by improper manufacture, or both. On cross-examination he further testified that the material used (C 1040 carbon steel) was improper because it lacked such elements as nickel or molybdenum; that quality control of the material was improper; and that a heat treatment used in manufacturing the nail was improper. With regard to the latter, he explained that when steel is heated to a high degree of hardness with no other alloying elements in it and subjected to the purpose for which the nail was designed, “you are treading on dangerous territory in my opinion.” This testimony was uncontradicted, and the jury certainly was entitled to believe it. Finally, defendant contends that the trial court improperly excluded certain testimony and improperly admitted other testimony. This is primarily a question for the trial judge, and we will not reverse his ruling unless it is manifestly erroneous. Spring Co. v. Edgar, 99 U.S. 645, 25 L.Ed. 487 (1878); A. Belanger & Sons, Inc. v. United States, 275 F.2d 372 (1st Cir. 1960). We do not think that was the case here. The question put to witness Stone on cross-examination went beyond his field of mechanical engineering. Witness Berman was well qualified as a metallurgist; witness Baroni was not. On these questions the trial court did not abuse its discretion. Judgment will be entered affirming the judgment of the district court. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:

songer_othcrim

A

What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". UNITED STATES of America v. John HOFFMAN, a/k/a John Joseph, Appellant. UNITED STATES of America v. Bertsfield SMITHEN, Appellant. Nos. 90-3205, 90-3236. United States Court of Appeals, District of Columbia Circuit. Argued March 31, 1992. Decided May 29, 1992. Peter L. Goldman, Washington, D.C. (appointed by the Court) for appellant John Hoffman, in No. 90-3205. Gregory B. English, Alexandria, Ya. (appointed by the Court), was on the brief for appellant. Thomas F. Dunn, Fort Worth, Tex. (appointed by the Court), for appellant Bertsfield Smithen, in No. 90-3236. Albert A. Herring, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Roy W. McLeese III and Thomas J. Hibarger, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee, in Nos. 90-3205 and 90-3236. Elizabeth Trosman, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee. Before: WALD, EDWARDS and HENDERSON, Circuit Judges. . Hoffman and Smithen were tried jointly in the District Court. Their appeals were consolidated by this court. Opinion for the court filed PER CURIAM. PER CURIAM: John Hoffman and Bertsfield Smithen appeal their convictions by a jury for narcotics offenses. Their appeals raise one issue that merits discussion: whether a defense lawyer must lay some evidentiary foundation before arguing in closing that the jury should infer, based upon the absence of fingerprint evidence, that such evidence could have been obtained and would have been exculpatory. We answer that question in the affirmative, and therefore we affirm the convictions. I. Background The facts of this case are straightforward and uncontested on appeal. On the afternoon of February 14, 1990, Hoffman and Smithen (collectively, “Appellants”) went to Penn Station in New York City to catch an Amtrak train bound for Charlotte, North Carolina. While in the station, they attracted the attention of two Amtrak police officers, who were on “call down” duty that day. The two officers followed Appellants aboard the Charlotte-bound train; there, they conducted brief, consensual interviews with Hoffman and Smithen but made no requ.est to search the luggage belonging to either. Unsatisfied by the responses they received, the officers proceeded to “call down” to the Amtrak police in Washington and recommend further interviews with Appellants. At approximately 6:05 p.m. on the same day, five officers boarded Appellants’ train during its stop-over in Washington. At the time they boarded, the train engine was being switched from electric to diesel power; as a result, the lights in the cabin were quite dim. The officers wore plainclothes and their weapons were concealed. Once on board, two of the officers, Detective Hanson and Investigator Lawson, approached Hoffman. Hanson positioned himself in the aisle near Hoffman’s seat, while Lawson stood a couple of rows behind Hoffman. After identifying himself as a police officer and obtaining consent to speak with Hoffman, Hanson asked to see Hoffman’s train ticket and some identification; he examined both documents and returned them to Hoffman. Hanson then explained that he was assigned to the Drug Interdiction Unit and asked if he could search Hoffman’s luggage. Hoffman consented, and Hanson proceeded to search the red duffel bag that Hoffman had identified as his. Inside, Hanson observed a pair of tennis shoes with socks stuffed into them; closer examination revealed plastic bags containing cocaine base hidden inside the socks. Hanson thereupon arrested Hoffman. As these events were transpiring, Detective Beard and Investigator Cook were in the process of following much the same routine with Smithen. Beard approached Smithen, and Cook took a position a row or two away. Beard identified himself as a police officer, and Smithen agreed to speak with him. On request, Smithen produced his train ticket, which Beard examined and returned. Beard then requested permission to search Smithen’s luggage. Smithen denied carrying narcotics, but offered his bag to be searched. Upon examining the bag, Beard found a “Dial” deodorant can on top of some clothes. He removed it from the bag and twisted the bottom, which proved to be false. Inside were numerous packets containing cocaine base and others containing cocaine. A post-arrest search of Smithen’s person revealed a small bag of marijuana concealed in his crotch area. On March 15, 1990, Appellants were indicted for possession of more than 50 grams of cocaine base with intent to distribute; Smithen was also charged separately with possession of cocaine with intent to distribute. Appellants subsequently moved to suppress the narcotics seized on the train, claiming Fourth Amendment violations, but the District Court denied the motions. See United States v. Smithen, 738 F.Supp. 15 (D.D.C.1990). On June 21, 1990, Appellants went to trial before a jury on the narcotics charges. At trial, the Government’s case consisted primarily of the testimony of the arresting officers, who recounted the events that occurred aboard the train. None of the Government’s witnesses made any mention of fingerprint evidence, and the attorneys representing Hoffman and Smithen did not cross-examine on that point. During the defense case, each appellant took the stand in his own defense. Hoffman denied owning the drugs found in his travel bag and indicated that they might have belonged to the passenger occupying the seat beside him, who left the train at or near the time that the officers boarded. See Trial Tr. (June 21, 1990) at 127-29, 132 (“Tr. I”). Smithen likewise disclaimed ownership of the narcotics found in the “Dial” can, implying that the can might have been put into his bag by someone else while he was having a snack in the lounge car. See id. at 89-91. During closing argument, Hoffman’s counsel advanced the theory that the unknown passenger who had been seated next to Hoffman was actually a drug courier who left the narcotics under a pillow on his seat when he saw the officers enter the train in Washington. According to Hoffman’s counsel, Detective Hanson lied about finding the drugs in Hoffman’s bag in order to be able to secure a conviction. Hoffman’s attorney then brought up the question of fingerprint evidence. If Officer Hanson had told you the truth in this case, wouldn’t he after sending the drugs to the laboratory to be analyzed have sent them to be examined for fingerprints? I mean I wouldn’t be here making any argument at all if this bag containing cocaine had been examined by the police lab like they should have done. . Trial Tr. (June 22, 1990) at 18 (“Tr. II”). The Government objected to this line of argument on the ground that the record contained no evidence regarding whether the plastic bags containing the narcotics had been tested for fingerprints and, if so, what result was obtained. The District Court sustained the objection and instructed the jury as follows: “Ladies and gentlemen, counsel may only argue evidence in the case, and there is no evidence of fingerprints. Therefore, I exclude that part of his argument. Disregard it.” Id. at 22. The jury returned verdicts of guilty against Hoffman and Smithen on all counts. They now appeal. II. Discussion Appellants raise several contentions on appeal. Of these, the only issue meriting discussion is the claim that the District Court committed reversible error by preventing defense counsel from arguing to the jury that it should draw various adverse inferences against the Government based upon the Government’s failure to introduce fingerprint evidence. We address the issue primarily to clarify the law of the circuit on this evidentiary matter. As Appellants recognize, see Joint Brief of Appellants at 12, our review of the District Court’s decision to restrict Hoffman’s closing argument is deferential. The trial court has “broad discretion in controlling the scope of closing argument,” and an abuse of that discretion will be found only where the effect of the trial court’s ruling is to “prevent[] defense counsel from making a point essential to the defense.” United States v. Sawyer, 443 F.2d 712, 713 (D.C.Cir.1971). On the record before us, we find no abuse of discretion in the District Court’s ruling; indeed, we find no error at all. It is true, as Hoffman and Smithen contend, that defense attorneys must be permitted to argue all reasonable inferences from the facts in the record. See United States v. DeLoach, 504 F.2d 185, 190 (D.C.Cir.1974). This includes the “negative inferences” that may arise when a party fails to call an important witness at trial, or fails to produce relevant documents or other evidence, and it is shown that the party has some special ability to produce such witness or other evidence. See United States v. Pitts, 918 F.2d 197, 199-200 (D.C.Cir.1990); see generally Edward W. Cleary, McCormick on Evidence § 272 (1984). It is equally well-established, however, that “counsel may not premise arguments on evidence which has not been admitted.” Johnson v. United States, 347 F.2d 803, 805 (D.C.Cir.1965); accord United States v. Hawkins, 595 F.2d 751, 754 (D.C.Cir.1978), cert. denied, 441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 380 (1979); United States v. Gibson, 513 F.2d 978, 980 (6th Cir.1975). Thus, it is improper for either the prosecutor or defense counsel to “ma[ke] statements as to facts not proven” or to put his or her “personal knowledge and belief ... on the scales.” United States v. Latimer, 511 F.2d 498, 503 (10th Cir.1975). In this case, the only “evidence” on the fingerprint issue was purely negative — i.e., the fact that the Government did not introduce any fingerprint evidence at all. As the Government concedes, the absence of such evidence is a relevant “fact” which properly could have been argued to the jury. See Brief for Appellee at 15, 17 n. 13; see also United States v. Poindexter, 942 F.2d 354, 360 (6th Cir.), cert. denied, — U.S. -, 112 S.Ct. 615, 116 L.Ed.2d 637 (1991), modified sub nom. United States v. Day, 956 F.2d 124 (6th Cir.1992). Thus, it would not “have been improper for defense counsel to point out to the jury that the government had not presented any evidence concerning fingerprints.” Brief for Appellee at 17 n. 13. The record reveals, however, that Hoffman’s attorney attempted to go far beyond merely pointing out the lack of fingerprint evidence and arguing that its absence weakened the Government’s case. Rather, his argument was that because the Government had not produced fingerprint evidence, the jury should infer that: (1) the police did not attempt to obtain fingerprints from the plastic bags containing the narcotics; (2) this failure violated standard police procedures; and (3) the fingerprint evidence, if obtained, would have been favorable to Hoffman. See Tr. II at 18 (closing argument of Hoffman’s counsel). Defense counsel further asserted that these three inferences supported the additional inference that Officer Hanson’s trial testimony was false. See id. By making these assertions, Hoffman’s attorney moved from arguing fair inferences from the record to arguing the existence of facts not in the record — viz., that the police did not look for fingerprints, that fingerprints could have been obtained from the plastic bags containing the narcotics and that standard police procedure required fingerprint analysis. Because neither defense attorney had laid any evidentiary foundation for those assertions — by, for example, asking one of the officers on cross-examination whether the plastic bags were (or could have been) tested for fingerprints, and whether standard procedure required such testing — Hoffman’s argument was improper. Accordingly, we hold that the District Court did not err, much less abuse its discretion, in refusing to permit the argument. See, e.g., Gibson, 513 F.2d at 980 (upholding trial court’s preclusion of defense argument regarding lack of bank surveillance films where there was “no evidence introduced to support the assertion that there was even any surveillance camera operative in the bank at that time”); People v. Beier, 29 Ill.2d 511, 194 N.E.2d 280, 283 (Ill.1963) (finding prosecutor’s argument to jury that defendant wiped fingerprints from weapon to be improper where there “was no evidence whatever that the revolver bore no prints, much less that it had been wiped clean of them”); cf. Poindexter, 942 F.2d at 359 (finding defendant’s argument regarding absence of fingerprint evidence to be proper where trial testimony indicated that contraband had been “dusted” for fingerprints). Appellants contend that Eley v. State, 288 Md. 548, 419 A.2d 384 (1980), supports their claim that the District Court’s ruling amounted to reversible error. In Eley, the Maryland Court of Appeals held that a defendant is entitled to comment on the absence of fingerprint evidence even if the defendant has not laid a foundation for such comment during cross-examination: “[Wjhere there is unexplained silence concerning a routine and reliable method of identification ... it is within the scope of permissible argument to comment on this gap in the proof offered.” Id. 419 A.2d at 388 (emphasis in original). Because the trial court had prevented defense counsel from making any mention of the absence of fingerprint evidence in closing argument, the Court of Appeals reversed Eley’s conviction and remanded for a new trial. See id. at 385, 388; see also Sample v. State, 314 Md. 202, 550 A.2d 661, 663-64 (1988) (following reasoning of Eley). We think that Eley may be distinguishable from the case at bar, because it appears that the defense lawyer’s argument in that case was limited to the contention that the absence of fingerprint evidence weakened the prosecution’s case against his client — an argument that the Government concedes to be appropriate. However, as Appellants point out, some of the language in Eley seems to go further, suggesting that the kinds of inferences urged by Hoffman’s counsel in this case would be permissible even in the absence of any evidentiary foundation. See Eley, 419 A.2d at 386 (suggesting that unexplained absence of fingerprint evidence “permit[s] the adverse inference that the evidence would have been unfavorable to the State”). To the extent that Eley so holds, we part company with the Maryland Court of Appeals and instead join ranks with the numerous other courts, federal and state, that have reached a contrary conclusion. See, e.g., Poindexter, 942 F.2d at 359-60; United States v. Quinn, 901 F.2d 522, 532 (6th Cir.1990); Gibson, 513 F.2d at 980; Latimer, 511 F.2d at 502-03; Jordan v. State, 267 Ala. 361, 102 So.2d 4, 8 (1958); Beier, 194 N.E.2d at 283; State v. Davidson, 351 N.W.2d 8, 12-13 (Minn.1984); State v. Simpson, 611 S.W.2d 556, 560 (Mo.Ct.App. 1981); Commonwealth v. Wright, 255 Pa.Super. 512, 388 A.2d 1084, 1086 (1978); State v. Emerson, 149 Vt. 171, 541 A.2d 466, 470 (1987). In sum, we conclude that the District Court did not err by ruling that Hoffman’s closing argument was improper. It is permissible for a defense attorney to point out to the jury that no fingerprint evidence has been introduced and to argue that the absence of such evidence weakens the Government’s case; however, the attorney may not use the absence of fingerprint evidence as a springboard for arguing facts not in evidence, e.g., that the Government made no effort to obtain fingerprints, that fingerprints could have been obtained from the object at issue, or that such evidence, if obtained, would have been favorable to the defense. Defense counsel attempted to take the latter route in this case, and it was proper for the District Court to prevent him from doing so. III. Conclusion For the reasons stated above, Appellants’ convictions are affirmed. So ordered. . “Call down" is a police procedure whereby drug interdiction agents observe and question individuals in train (and bus) terminals but do not conduct searches or make arrests; if their suspicions are aroused, they call other agents at scheduled stopping points along the train route and recommend further investigation. See United States v. Smithen, 738 F.Supp. 15, 16 (D.D.C.1990). . In addition to the claim discussed in the text, Appellants argue that: (1) they were illegally "seized" by the police during the interviews aboard the train in Washington; and (2) their consents to the searches were involuntary because they were not warned of their right to refuse consent. For these reasons, Appellants assert, the District Court erred in denying their motions to suppress. We find no merit in these contentions. Appellants’ claim of "seizure” is foreclosed by Florida v. Bostick, — U.S. -, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), and United States v. Lewis, 921 F.2d 1294 (D.C.Cir.1990), which plainly validate the kind of non-coercive interviews that occurred in this case. Although the dim lighting and somewhat cramped conditions in the train may have limited Appellants’ "freedom to leave” to some degree, these circumstances were not of the officers’ making and therefore do not invalidate the otherwise lawful police conduct. See Bostick, 111 S.Ct. at 2386-87; Lewis, 921 F.2d at 1299. Appellants’ claim that their consents to the searches were involuntary is similarly unavailing. There is no requirement that the police warn an individual of the right to withhold consent to a search, see Schneckloth v. Bustamonte, 412 U.S. 218, 231-33, 93 S.Ct. 2041, 2049-50, 36 L.Ed.2d 854 (1973); and, on the record before us, we have no difficulty in con-eluding that the trial court did not clearly err in finding that Appellants consented voluntarily to the search of their luggage. See United States v. Maragh, 894 F.2d 415, 420 (D.C.Cir.) (holding that voluntariness of consent is question of fact reviewed under clear error standard), cert. denied, — U.S. -, 111 S.Ct. 214, 112 L.Ed.2d 174 (1990). . We doubt that Smithen has preserved this issue for appeal. Only Hoffman’s counsel attempted to argue the lack of fingerprint evidence to the jury, and it appears that Smithen’s attorney did not object to the trial court’s ruling restricting Hoffman's argument. See Tr. II at 18-22. We need not resolve the question of waiver definitively, however, because we conclude that the District Court did not err — much less commit "plain error” — by ruling as it did. See Fed.R.Crim.P. 52(b); United States v. Bass, 535 F.2d 110, 116 (D.C.Cir.1976). . Cf. Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021 (1893) (finding “missing witness” inference instruction improper absent showing that witness is peculiarly available to party against whom inference is to be drawn); Pitts, 918 F.2d at 199-200 (same). Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim. A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:

songer_appel1_1_2

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". Glenn W. SMITH, Appellant, v. SWIFT AND COMPANY, a corporation, Appellee. No. 7163. United States Court of Appeals Tenth Circuit. July 25, 1963. T 7 „ . , _ . Tr John Berglund, Clay Center, Kan. (Wfiliam L. Rees, Topeka, Kan., on the brief), for appellant. _ Charles A. Walsh, Concordia, Kan. (R. A. Brown, St. Joseph, Mo., on the brief), for appellee. Before BREITENSTEIN, HILL and SETH, Circuit Judges. SETH Circuit Judge. „ This suit was commenced by appellant, a turkey grower, to recover from appel-lee, Swift and Company, the price of a flock of turkeys it purchased from him. The case was removed to the United States District Court for the District of Kansas, where it was tried without a jury. The judge found for the appellee and this appeal was taken. The appellant had entered into a contract with Dannen Mills, Inc., which is not a party to this action, whereby that company was to furnish him with turkey poults, feed, and assistance in raising a flock of turkeys. Appellant executed and delivered to Dannen Mills, Inc. notes and mortgages covering the purchase price of the poults and of the feed. There is no , , .. ..... . dispute as to the validity or coverage of ,, * , ml . , these mortgages. There is also agree- ° . . , ment that there was a balance due by ,, , . ,, , . , the terms of the mortgages from appel- . , , ^ T . ,, , lant to Dannen Mills, Inc. m the amount , , ... ... .. ’ , °f abo,lt f,8d°“-00; fp?el howe™r does assert that the technical advisor pro- .... „ T . , ,1 , vided by Dannen Mills, Inc. introduced ,. .... . ’. . , a disease into the flock which caused considerable damage. At the end of the growing season, appellee, Swift and Cornpany, purchased the turkeys for an agreed price of $20,615.40 which was less than the balance due Dannen Mills, Inc. under the mortgages. This sale was agreed upon by appellant, by appellee, by representatives of Dannen Mills, Inc., and by representatives of Farmers’ Co°P- pother feed company which held a seconcl mortgage). Appellee was then instructed by appellant, by Dannen Mills, and by Farmers’ Co-op. that it should issue two checks for the turkeys, each one payable to appellant (mortgagor), to Dannen Mills, Inc. (the first mortgagee), and ^ Farmerg, c (second mort_ gagee) ginee ^ a]1 had an interegt ^ the turkeyg, Theg0 instructions as to the checks were given several weeks before the sale was consummated. These checks were so prepared and delivered to Farmers’Co-op. where they were held for several months and then delivered to Dannen Mills, Inc. The checks were voided by appellee nearly a year after issue and the purchase price was then id by llee gde] to Dannen Mm jnc The appellant urges that the mortgagee in consenting to the sale of the turkeys waived its mortgage lien. It is certainly a general rule that the mortgagee’s consent to the sale of mortgaged property by the mortgagor is, in the absence of an understanding or of a condition as tío the application of the pro-eeeds, a waiver of the mortgage lien. Annot., 36 A.L.R. 1379. However it is equally well recognized that there is an exception to this rule where it is a condition that the proceeds be applied to discharge the mortgage. Annot., 36 A.L.R. 1379. Here there is no question but that the mortgagee and the mortgagor-appellant agreed with the appellee that the sale would be made. The record also shows that several weeks before the sale was consummated, these interested parties also agreed that each of the checks for the purchase price was to be made payable as above described. The record shows, and the court found, this agreement was not made at the time the sale was concluded as appellant contends, but before. The use of joint checks shows that the parties agreed to preserve their interests in the proceeds, and there is no evidence to the contrary. The trial court concluded that under the agreement for the sale of the turkeys and the agreement as to the payees of the checks, the mortgage lien attached to the proceeds of the sale. These proceeds were paid by appellee to the mortgagee. The court further observed that the agreement as to the payees of the checks would not be consistent with a relinquishment by Dannen Mills of its lien on the proceeds of the sale of the mortgaged turkeys. The record clearly supports the findings upon which these conclusions were based. Muse, Spivey & Co. v. Lehman, 30 Kan. 514, 1 P. 804, was an early Kansas case where mortgaged grain was sold with the consent of the mortgagor and mortgagee, and with an agreement that the lien follow the proceeds. The court there held that the mortgage lien was effective as to the proceeds of sale as against other creditors of the mortgagor. Annot., 36 A.L.R. 1384. There are also authorities from other jurisdictions on this point, including Smith v. Brooks, 154 Neb. 93, 47 N.W.2d 389, and Clatworthy v. Ferguson, 72 Colo. 259, 210 P. 693. Appellant urges that Reese v. Kapp, 82 Kan. 304, 108 P. 96, holds to the contrary, but it appears instead that the court was there concerned only with whether or not the mortgagee’s consent to the sale had to be in writing. The finding's of the trial court in the ease at bar on this point are amply supported by the evidence. Appellant urges also that it was error for the trial court to refuse to admit evidence to support appellant’s claim of damages against Dannen Mills, Inc., allegedly caused by its technical advisor. Appellant offered proof on this point. As mentioned above, Dannen Mills, Inc. was not a party to this suit at any time. The claim by appellant against it was unliquidated, and thei-e was no connection or relationship between appellee, which was the purchaser of the turkeys at the end of the season, and Dannen Mills as to what may have occurred during the growing season. This matter of damages between appellant and the third party mortgagee could not have been properly tried in this action in the absence of such mortgagee. Appellant cites Miller v. Thayer, 96 Kan. 278, 150 P. 537, and Commercial State Bank v. Baker, 99 Kan. 248, 161 P. 620, but these cases do not hold to the contrary. The appellant asserts that there was a trust created during the transaction or by the check; however we do not find that the elements of such a relationship were present. The appellee paid the agreed price for the turkeys to Dannen Mills which had a lien on the proceeds and to whom the obligation was owed by appellant under the mortgages. Appellant urges he had a right of action against Dannen Mills, but the court correctly held he could not assert it here. The court also found he has never made a demand on it nor filed suit against Dannen Mills. As between the parties before the court, the appellant is not entitled to the proceeds of the sale. Affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:

songer_r_bus

2

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. In re WESTINGHOUSE ELECTRIC CORPORATION-URANIUM CONTRACTS LITIGATION. WESTINGHOUSE ELECTRIC CORPORATION, Appellant, v. Robert W. ADAMS and Western Nuclear, Inc., Appellees. No. 77-1833. United States Court of Appeals, Tenth Circuit. Argued and Submitted Jan. 25, 1978. Decided Jan. 31, 1978. Thomas C. Seawell of Seawell & Cohen, Denver, Colo. (Kirkland & Ellis, Chicago, Ill., with him on the brief), for appellant. Harley W. Shaver of Canges & Shaver, Denver, Colo. (John H. Hall of Debevoise, Plimpton, Lyons & Gates, New York City, with him on the brief), for appellees. Before HOLLOWAY, BARRETT and LOGAN, Circuit Judges. PER CURIAM. This expedited appeal challenges an order of the district court granting a motion for a protective order, denying a motion by Westinghouse to compel, and quashing a subpoena for taking the deposition of Mr. Robert Adams, formerly president of Western Nuclear, Inc. Appellant Westinghouse urges that we reverse so that the deposition may be promptly taken and used in defense of an action by several utility companies against Westinghouse currently being tried in the Eastern District of Virginia. We have expedited briefing and argument and have considered in camera a set of exhibits (Supp.R.Vol.II) which was sealed by the district court, an order of confidentiality having been entered as to these documents by the trial court in the principal action in Virginia. The order in question recites some of the factual background briefly which appears to indicate the basis for the ruling of the district court barring taking of the deposition. Reference is made to Westinghouse having earlier indicated specifically its intent not to seek the depositions of Western Nuclear employees. This was indicated by a stipulation between Westinghouse, Western Nuclear and Mr. Adams. The court also refers to the fact that earlier depositions of Mr. Adams had been taken. These circumstances are the basis indicated for the order. Three main questions are raised by this appeal, to which we now turn. First, it has been argued that the order is not appealable. We must disagree. Such an order is reviewable where the discovery controversy is collateral to the main action and the practical effect of the order will be irreparable by any subsequent appeal. Covey Oil Co. v. Continental Oil Co., 340 F.2d 993, 996 (10th Cir.), cert. denied, 380 U.S. 964, 85 S.Ct. 1110, 14 L.Ed.2d 155, and see Cohen v. Beneficial Finance Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528. Second, our most troublesome problem is a stipulation resulting in an order entered in the district court in Colorado on May 4, 1977. This order recites the fact that a subpoena duces tecum had issued, objections had been filed thereto, and a hearing on the matters had commenced. It then states that upon stipulation of the parties the order was entered, requiring certain production of documents at specified offices. The order concludes with the statement that: “This would be a document production only and there would be no deposition.” The order does not in terms bar the taking of further depositions on later occasions. Any such effect would have to be by implication from the order or the agreement reached by the parties and it may have been intended that no further depositions of Western Nuclear employees would be taken, as appellees contend. On the other hand it may be, as Westinghouse argues, that the stipulation was not intended to cover a situation such as we now have where later events arguably reveal a need for further discovery; it may be that the agreement was intended only to forego a deposition at the time of production of documents. We feel, however, that we need not resolve this question of intent of the stipulation. While we must not treat this stipulation and the resulting order lightly, see Farmers Co-Operative Elevators Association Non-Stock of Big Springs, Nebraska v. Strand, 382 F.2d 224, 231 (8th Cir.), in the circumstances before us there are overriding considerations favoring discovery which we find controlling. Our examination of the record, including the in camera consideration of documents produced on July 7, 1977 after the stipulation and order, has persuaded us that it would be inequitable to enforce a stipulation against a further deposition by Mr. Adams. Westinghouse has had no opportunity to interrogate Mr. Adams since the production in July of the sealed documents dealing with potentially critical events. Without in any way intimating a view on the effect or admissibility of such documents or facts relating to them — a matter for the trial court in Virginia — we are convinced that in the discovery stage these matters should be open at this time for further development by Westinghouse and the opposing parties. Otherwise, facts which may have considerable bearing on the merits might not be developed. The court may relieve a party from an improvident agreement or one that might work injustice. Laughlin v. Berens, 73 App.D.C. 136, 139, 118 F.2d 193, 196; see United States v. Harding, 491 F.2d 697, 698 (10th Cir.); cf. Wilver v. Fisher, 387 F.2d 66, 69 (10th Cir.). The strong policy of the federal discovery rules favoring full disclosure is of paramount importance. See Olympic Refining Co. v. Carter, 332 F.2d 260, 264 (9th Cir.), cert. denied, 379 U.S. 900, 85 S.Ct. 186, 13 L.Ed.2d 175; and see United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077; Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.). The law favors disposition of litigation on its merits. Wilver v. Fisher, supra, 387 F.2d at 69. In view of the important matters revealed after the stipulation and order, we must hold that it would be inequitable to enforce an agreement against further questioning of Mr. Adams, thus closing the door to development of potentially critical facts. Third, there is the question whether the protective order in any event was proper to avoid oppression and undue hardship on Mr. Adams, without regard to the stipulation and order. We are advised that he has been deposed for two days in New York and one day in Denver. In addition, we know that a considerable volume of documents has been produced and made available to Westinghouse by Western Nuclear, in accordance with the agreed order. Nevertheless, in a matter of this importance to all the parties in the principal action a further opportunity for reasonable interrogation of Mr. Adams is firmly supported by the policy favoring discovery. The district court may, of course, impose reasonable terms and conditions to protect against oppression in the scheduling and conduct of the deposition. We are convinced, however, that the bar against the further interrogation of Mr. Adams was an abuse of discretion in view of the documents produced after the stipulation and order and the potentially important events they purport to relate. In such changed circumstances, further interrogation of the witness clearly seems justified and not unreasonable. See DeSeversky v. Republic Aviation Corp., 2 F.R.D. 113, 114-115 (E.D.N.Y.); Erstad v. Curtis Bay Towing Co., 28 F.R.D. 583 (D.Md.); Colin v. Thompson, 16 F.R.D. 194 (W.D.Mo.). Accordingly, the order of the district court is reversed and the matter is remanded for further proceedings in accordance with this opinion. The mandate shall issue forthwith. . The nature of the principal action is outlined in our earlier opinion in another appeal concerning a discovery order relating to the same controversy. See In Re: Westinghouse Electric Corp. — Uranium Contracts Litigation, 563 F.2d 992 (10th Cir.). Two other related appeals have also been brought to us but were dismissed by agreement. See In Re: Westinghouse Electric Corp.—Uranium Contracts Litigation, No. 77-1498 (order dismissing appeal on stipulation filed July 12, 1977); In Re: Westinghouse Electric Corp.—Uranium Contracts Litigation, No. 77-1449 (order dismissing appeal on stipulation filed July 7, 1977). We were advised at argument that the trial of the principal case began in September, 1977, and is expected to continue until about the middle of March, 1978. The case is being tried by Judge Merhige without a jury. . The district court’s order by Judge Finesilver, entered August 5, 1977, reads in pertinent part as follows: THIS DISCOVERY MATTER arises out of a multidistrict case being pursued in the Eastern District of Virginia and comes before this court as a result of a subpoena for the taking of a deposition issued under Rule 45(d), F.R.C.P. The parties to this matter, Westinghouse Electric Corporation and Western Nuclear, Incorporated, have previously litigated a related question in this district. In re: Westinghouse Electric Corporation, Civil Action No. 76-X-59. In the earlier action, Westinghouse sought to compel production of documents by Western Nuclear, but specifically indicated its intent not to seek deposition of Western Nuclear employees. On July 25, 1977, however, Westinghouse caused to be issued a subpoena noticing the deposition of Robert W. Adams, a former employee of Western Nuclear. Mr. Adams’ deposition was previously taken by Westinghouse on July 23, and September 9-10, 1976, but Westinghouse claims another deposition is required due to the nature of documents recently produced pursuant to this court’s orders in 76-X-59. The trial of the MDL case is scheduled to commence on September 12, 1977, and thus, a rapid consideration of the various motions is needed. The court has carefully reviewed the objection to subpoena and Motion for Protective Order, filed by Robert Adams and Western Nuclear on August 1, 1977, the statements and affidavits filed thereafter, and the Motion to Compel, filed by Westinghouse on August 5, 1977. Being fully advised in the premises, the Motion for Protective Order is granted and the Motion to Compel is denied. The Motion for Protective Order, filed by Robert W. Adams and Western Nuclear, Inc., on August 1,1977, is granted. The subpoena to take the deposition of Robert Adams, issued by this court on July 25, 1977, is quashed. The Motion to Compel, filed by Westinghouse Electric Corp. on August 5, 1977, is denied. . A motion to dismiss the appeal was earlier made and denied by this court, but the jurisdictional challenge is reargued by appellees’ brief. (Brief of Appellees, 10). . This order, entered by Chief Judge Winner on May 4, 1977, reads as follows: WHEREAS, WESTINGHOUSE ELECTRIC CORPORATION caused certain Subpoenas Duces Tecum for attendance at a deposition to be issued to WESTERN NUCLEAR, INC. (one of which was a corrected service copy of the other); and WHEREAS, WESTERN NUCLEAR, INC. caused to be filed certain Objections to said Subpoenas, together with a Motion for Protective Orders; and WHEREAS, this Court commenced a hearing on said matters at 2:00 P.M., April 4, 1977, wherein Joseph E. Cook of Welbom, Dufford, Cook & Brown appeared on behalf of WESTINGHOUSE ELECTRIC CORPORATION and wherein Harley W. Shaver of Canges and Shaver appeared on behalf of WESTERN NUCLEAR, INC., and the Court continued said hearing until April 6, 1977, at 1:00 P.M., and at said time, George D. Newton, Jr. of Kirkland & Ellis, Chicago, Illinois, and John S. Battle, Jr. of McGuire, Woods & Battle of Richmond, Virginia, appeared together with Joseph E. Cook for WESTINGHOUSE ELECTRIC CORPORATION and Harley W. Shaver of Canges and Shaver appeared on behalf of WESTERN NUCLEAR, INC.; and WHEREAS, the Court heard the statements of respective counsel with regard to the issues before the Court, and the Court being fully advised in the premises, and upon the stipulation of the parties present, does enter the following orders with regard to discovery pursuant to the Subpoenas Duces Tecum served on WESTERN NUCLEAR, INC.: 1. There shall be no compliance jintil five (5) working days after Judge Marshall’s stay order on discovery is lifted in an action currently pending in the United States District Court for the Northern District of Illinois, Westinghouse Electric Corp. vs. Rio Algom Limited, et al., Civil Action No. 76-C-3830. 2. Compliance will be in New York City at the offices of Debevoise, Plimpton, Lyons & Gates, 299 Park Avenue, New York, New York 10017. 3. No documents would need be produced which are dated or came into effect after June 16, 1976. 4. No documents need be supplied that were not supplied the Justice Department pursuant to the Grand Jury Subpoena out of the District of Columbia as long as counsel for WESTINGHOUSE ELECTRIC CORPORATION is apprised of the nature or category of any documents not supplied the Justice Department. This would be a document production only and there would be no deposition. (Emphasis added). . In this connection we note that Rule 29, F.R. Civ.P., as amended in 1970 reserves power in the court to enter an order contrary to a stipulation of the parties as to the procedures and conditions under which depositions may be taken. . The appellees point out that Westinghouse had been advised of a change in the deposition of Mr. Adams indicating the receipt of a report and attachments concerning matters covered in the sealed documents several months before the stipulation was entered into for the May 4, 1977 order which stated that there would be no deposition. From this appellees argue that it is not unfair to enforce the stipulation despite the fact that the disclosures in the documents came later on July 7, 1977. The argument is not convincing when weighed against the policy favoring relief from an improvident stipulation where manifest injustice might otherwise result. Moreover, while the correction to the deposition of Mr. Adams was a signal which might warn against agreeing to forego a deposition, it was not a disclosure which brought home the existence of the potentially significant information in the sealed instruments. (See IR. 143 — 44). . We are mindful of the fact that the principal action is presently being tried in Virginia. Of course, it is not intended that there be any interference with the trial proceedings by the deposition of Mr. Adams. We only hold that the bar against that deposition imposed by the district court must be set aside. Scheduling of the deposition should be done after coordination with the trial court in Virginia and without disruption to the proceedings in that court. 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_trialpro

A

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Louis W. WEGERER and Judith A. Wegerer, Plaintiffs-Appellees, v. FIRST COMMODITY CORPORATION OF BOSTON, et al., Defendants-Appellants. No. 82-1686. United States Court of Appeals, Tenth Circuit. Sept. 10, 1984. Rehearing Denied Oct. 11, 1984. Theodore C. Beckett, Kansas City, Mo. (Don R. Lolli and Emmett J. McMahon, Kansas City, Mo., with him on brief) of Beckett & Steinkamp, Kansas City, Mo. (Charles C. Rankin, Lawrence, Kan., of counsel), for plaintiffs-appellees. Arthur L. Smith, Washington, D.C. (Thomas W. Van Dyke, J. Michael Vaughan, and James C. Tilden of Linde, Thomson, Fairchild, Langworthy, Kohn & Van Dyke, Kansas City, Mo., on brief), for defendants-appellants. Before BARRETT, BREITENSTEIN and McKAY, Circuit Judges. BARRETT, Circuit Judge. First Commodity Corporation of Boston (FCCB), Donald R. Schleicher, and his brother, Richard A. Schleicher (Appellants) appeal from an adverse jury verdict and remittitur judgment entered in favor of Louis and Judith Wegerer (Wegerers). The Wegerers were awarded $10,775.00 in actual damages and $250,000.00 in punitive damages on a finding that appellants and one Robert Jones, a former account executive for FCCB, conspired to defraud the Wegerers in the sale of two copper commodity option contracts. The evidence presented at trial was developed exclusively by the Wegerers; the appellants rested without presenting any evidence. BACKGROUND FCCB is a corporation doing business as a commodity option brokerage firm with its main office in Boston and sales offices in Chicago, Miami, San Francisco, New York, and Newport Beach. FCCB is a private, closely-held corporation whose stock is owned by Donald Schleicher (80%) and Richard Schleicher (20%). At all times relevant hereto, Donald Schleicher was president, treasurer and chairman of the board of directors of FCCB, while Richard Schleicher was vice-president, secretary, and the only other member of FCCB’s board of directors. Richard Schleicher did most of the research for FCCB. Over the years FCCB has enjoyed tremendous financial success and the Schleichers have profited accordingly. In his deposition Donald Schleicher testified that he and Richard had recently sold 20% of FCCB, for which he had received $3,900,000 and Richard had received $900,000; that FCCB was selling several of its offices to a partnership for $6,000,000, and that the proceeds of the sale would go to himself and his brother over a three to four year period. FCCB held itself out to be the oldest commodity options specialist on the East Coast with considerable financial strength, and one of America’s most accomplished and professional commodity option brokerage firms. FCCB employs several hundred salesmen to sell various option contracts. On November 11, 1976, FCCB, through Donald Schleicher as President, and Donald and Richard Schleicher, individually, and on behalf of “their affiliates, officers, agents, servants, employees, attorneys, and assigns, and those persons in active concert or participation with them” (R., Pl.Ex. 33 at 2) entered into a consent decree with the Commodity Futures Trading Commission permanently enjoining each of them from using the mails or any means or instrumentalities of interstate commerce to cheat or defraud any person by: (1) disseminating by means of oral representations or written materials expected and predicted profits and returns from commodity options and futures transactions, (2) representing that commodity options or commodity transactions are guaranteed, backed, escrowed or collateralized for the benefit and protection of purchasers of commodity options, (3) failing to disclose or misrepresenting the actual amount of the purchase price of commodity options, including a separate listing of the premium, markups on the premium, costs, fees, and commissions, (4) executing commodity option transactions and commodity futures contracts without the consent, knowledge, and/or authorization of its customers; (5) failing or omitting to disclose or misrepresenting the price level which a commodity must reach during the life of an option before an option customer will realize a profit, (6) failing or omitting to disclose that specific market movements of a commodity or contract of sale of a commodity for future delivery cannot be accurately predicted, (7) failing or omitting to disclose the nature and character of a customer’s investment in commodity options, (8) failing or omitting to relate all additional costs which may be incurred by an option customer if the option is exercised, and (9) failing to disclose or misrepresenting the fact that a commodity option purchased by a customer had earlier been purchased for the account of FCCB or another customer of FCCB. FACTS During early April 1978, Louis Wegerer, a railroad engineer responded to an FCCB advertisement. Although neither Louis nor his wife, Judith, both residents of Mari-, on, Kansas, knew anything about stocks, bonds, or commodities, they decided to respond to the FCCB advertisement which stated that “Mr. X invested $3,445; nine months later he received $24,213.” Within several days after responding to the ad, the Wegerers received the first of what was to be a series of phone calls from Robert Jones, an account executive for FCCB, from New York. Although the Wegerers told Jones that they knew nothing about dealing in commodities or investments and that they could not afford to invest in commodity option contracts, Jones persisted. He made thirty to forty telephone calls to the Wegerers over a period of several weeks. During the course of his telephone conversations with the Wegerers, Jones related, inter alia: an investment in copper commodity option contracts was completely safe; the Wegerers would make money with each rise in the price of copper; that copper was rising and the Wegerers were sure to make a profit; that the Wegerers should not review the documents and information mailed to them by FCCB because it was too complicated for them to understand and the information was sent out merely to fulfill a legal requirement; that he was an expert in commodities; and he was making many people a lot of money and that the Wegerers should trust him with their investment. Based on Jones’ representations, the Wegerers withdrew some of their savings and also obtained a bank loan, all in Kansas, for investing $5,375 with FCCB on May 8, 1978, and $5,400 with FCCB on May 30, 1978, in copper commodity options traded on the London exchange. Subsequent to making these investments, the Wegerers discovered, for the first time, (1) that FCCB charged a commission brokerage fee equal to 100% of the purchase price of the copper commodity options they had purchased, (2) that two days after they had purchased their second option contract, the sale of commodity options was banned in the United States by the Commodity Futures Trading Commission because of rampant fraud in the sale of such options, and (3) that the price of copper had to rise a fixed amount before they could even recover their initial investment. After the Wegerers purchased their second contract, Jones stopped calling them. Despite repeated attempts, the Wegerers were unable to contact Jones again. The Wegerers subsequently sued FCCB, the Schleichers, and Jones alleging that they were persuaded to purchase two copper option contracts which were worthless at the time they were purchased and that the actions of the appellants and Robert Jones in inducing them to effectuate the purchases were in violation of federal law and constituted fraud and conspiracy to defraud under Kansas law. Following a three day trial, the jury returned a verdict against FCCB and the Schleichers, awarding the Wegerers $15,-000 in actual damages and $1,000,000 in punitive damages. Following appellants’ post-trial motions, the district court entered an order denying a new trial and appellants’ motion for a judgment notwithstanding the verdict. The district court did, however, grant appellants’ motion for a remittitur. The court reduced the Wegerers’ actual damages to $10,775.00, the purchase price of the contracts, and the Wegerers’ punitive damages to $250,000.00. ISSUES On appeal FCCB and the Schleichers contend the district court erred by: (1) refusing to give their requested instruction on justifiable reliance, (2) refusing to grant a new trial after finding that the $1,000,000 punitive damage award was excessive, (3) denying their motions for directed verdict and a new trial, (4) submitting Instructions 9-11A since officers, directors or employees of a corporation acting in their official capacity on behalf of a corporation cannot conspire with their corporation, (5) holding that it had personal jurisdiction over the Schleichers, (6) admitting the 1976 consent decree, (7) admitting the testimony of two other FCCB customers, and (8) by ruling that various complaints filed with the Commodities Futures Trading Commissioner by unrelated parties could be used for cross-examination of any defendant. I. Appellants contend that the district court erred in refusing to give their requested instruction defining justifiable reliance. Appellants argue, citing to Goff v. American Savings Association of Kansas, 561 P.2d 897, 903 (Ct.App.Ks.1977), that the test for determining when reliance is justified is whether the plaintiffs had “information which would serve as a danger signal and a red light to any normal person of his intelligence and experience” and that the district court erred by not instructing accordingly. In rejecting the appellants’ proferred instruction, the district court stated: The reason I rejected this [instruction], the way you submitted it is that you are trying to get comparative fault in this case and the court isn’t about to let you turn, this into a negligence case. (R., Vol. X at 304-305.) Thereafter, the district court instructed the jury on justifiable reliance in Instruction No. 8: A party claiming to have been defrauded by a false representation or concealment must not only have acted in reliance thereon but must have been justified in such reliance, that is, the situation must have been such as to make it reasonable for him, in the light of the circumstances and his intelligence, experience and knowledge, to accept the representation without making an independent inquiry or investigation. (R., Vol. II at 291.) Under these circumstances we hold that the district court did not err in refusing the appellants’ proffered instruction. Whereas a party is, upon proper request, entitled to an instruction upon his theory of the case if there is evidence to support it, Brandes v. Burbank, 613 F.2d 658 (7th Cir.1980), a party is not entitled to have the jury instructed in the particular language of its choice. Frosty Land Foods International, Inc. v. Refrigerated Transport Co., Inc., 613 F.2d 1344 (5th Cir.1980); Baker & Co. v. Preferred Risk Mutual Insurance Co., 569 F.2d 1347 (5th Cir.1978). Instructions must be considered as a whole and particular instructions and requests for instructions are to be considered in the framework of the entire charge. Marshall v. Ford Motor Company, 446 F.2d 712 (10th Cir.1971). The district court’s instructions were proper and adequate. We have also considered the applicability of our Zobrist v. Coal-X, Inc., 708 F.2d 1511 (10th Cir.1983), cited by both parties in supplemental authority letters to the court. We hold Zobrist to be distinguishable. Zobrist involved an action brought by purchasers of stock against the sellers to recover for fraud. In Zobrist we held that the warnings and statements contained in a private placement memorandum could be imputed to a sophisticated investor even though he had not read them and that the investor could not justifiably- rely on misrepresentations where the falsity of the misrepresentations is palpable. Such is not the case at hand. Neither of the Wegerers were sophisticated investors. Furthermore, it is uncontested that the Wegerers were told not to read the materials sent to them; that Jones told the Wegerers the materials were sent by FCCB merely to comply with a legal requirement; that the Wegerers were lied to repeatedly; and that the Wegerers were “badgered” by numerous telephone calls and pressured into investing. II. Appéllants argue that the district court erred in admitting the 1976 consent decree executed by FCCB and the Schleichers. Appellants contend that although the district court admitted the decree for the limited purpose of showing intent and knowledge, and instructed the jury accordingly, that the consent decree was nonetheless inadmissible for any purpose under Rules 410, 408, 404(b), 403, 402 and 802 of the Federal Rules of Evidence. Appellants further contend that the limiting instruction given by the court did not cure the prejudice suffered by the appellants as a result of the admission of the consent decree. We disagree. We hold that the district court properly admitted the consent decree for the limited purpose of showing intent and knowledge under Rule 404(b). Rule 404(b) provides: Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person or to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plain knowledge, identity, or absence of mistake or accident. Within Instruction No. 12 the district court charged the jury: Certain evidence has been admitted of alleged similar misrepresentations made by defendants to one Jerry Kerr and Michael Collins. Also there has been received into evidence Exhibit 33, a consent decree involving claims between the Commodity Futures Trading Commission and persons named in the consent decree, including the defendants in this action. This evidence has been admitted for limited purposes only as being relevant to defendants’ intent to defraud plaintiffs, any scheme or plan on the part of defendants to defraud plaintiffs, and also defendants' knowledge of the alleged falsity of misrepresentations made to plaintiffs. The admission of the consent decree, as limited, was particularly appropriate in this case for purposes of showing intent and knowledge. In United States v. Barbieri, 614 F.2d 715, 719 (10th Cir.1980) we stated: Under Fed.R.Evid. 404(b), evidence of crimes not charged in the indictment may be admitted to prove, among other things, intent and plan. See United States v. Ahern, 612 F.2d 507, 509 (10th Cir.1980). The admissibility of such evidence is within the sound discretion of the trial judge. See United States v. Nolan, 551 F.2d 266, 271 (10th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977). We find no abuse of discretion here. Matters of intent and plan were crucial in this case. The evidence was relevant for a purpose other than showing bad character; it was clear and convincing; and its probative value substantially outweighed the danger of prejudice. See United States v. Scholle, 553 F.2d 1109, 1121 (8th Cir.), cert. denied, 434 U.S. 940, 98 S.Ct. 432, 54 L.Ed.2d 300 (1977). The St. Louis evidence showed the dimensions and continuing nature of Barbieri’s scheme. It put the activities in Oklahoma City in context. See United States v. Pauldino, 443 F.2d 1108, 1113 (10th Cir.), cert. denied, 404 U.S. 882, 92 S.Ct. 204, 30 L.Ed.2d 163 (1971). Finally, it provided a basis for understanding the testimony — ... See also Jerry J. Kerr v. First Commodity Corporation of Boston, 735 F.2d 281 (8th Cir.1984) in which the Court upheld the admission of the same consent decree here involved “solely for the purpose of demonstrating First Commodity’s knowledge and intent to commit the fraud insofar as such knowledge and intent are relevant to the issue of punitive damages” at 286. Although the district court in the instant case did not limit the consent decree solely for consideration of punitive damages, the decree was properly admitted since the Wegerers not only sued FCCB, but also the Schleichers, and the punitive damages awarded the Wegerers were assessed only against FCCB. III. Appellants contend that the district court erred in giving Instructions 9 through 11A on conspiracy because the evidence failed to establish that any of the individual defendants were acting outside their official capacities on behalf of FCCB. Appellants cite May v. Santa Fe Transportation Co., 189 Kan. 419, 370 P.2d 390 (1962) for the general rule that officers, directors or employees of a corporation, acting in their official capacities on behalf of the corporation, cannot conspire with the corporation. Appellants acknowledge that the court in May implicitly recognized an exception to the general rule, set forth in Greenville Publishing Co. v. Daily Reflector, Inc., 496 F.2d 391 (4th Cir.1974) and Jewel Foliage Co. v. Uniflora Overseas Florida, 497 F.Supp. 513 (M.D.Fla.1980), that officers, directors, or employees of a corporation who personally benefit from the illegal activities in a way separate and distinct from the corporation may be held to be a participant in a conspiracy with their corporation. Appellants contend that the pivotal question of whether the Schleichers conspired with FCCB must be resolved by determining whether they were acting within their official capacities on behalf of the corporation or whether they were acting for their individual benefit. Appellants argue that the evidence presented by the Wegerers does not contradict their contention that the individual defendants were acting within their official capacities for FCCB when dealing with the Wegerers. They cite Jewel Foliage v. Uni-flora Overseas Florida, supra, for the proposition that mere stock ownership does not preclude the application of May, and Stanfield v. Osborne Industries, Inc., 7 Kan.App.2d 416, 643 P.2d 1115 (1982) for the proposition that the mere accrual of personal benefits to individual shareholders, such as the Schleichers, does not remove a case from the May holding, whenever the actions of the individual defendants are completely related to their corporate responsibilities. Finally, appellants contend that “the 1976 consent decree provides no evidence of the individual benefit which plaintiffs must prove the Schleichers received in order to prove a civil conspiracy.” (Brief of Defendants-Appellants at 22.) Kansas has long recognized that there may be recovery against all the members of a civil conspiracy by one who has suffered damages as a result of actionable conduct by one or more of the conspirators pursuant to the conspiracy. Ammon v. Kaplow, 468 F.Supp. 1304, 1312 (D.Ks.1979), citing International Union, United Auto, et al. v. Cardwell Mfg. Co., 416 F.Supp. 1267, 1290 (D.Ks.1976). Under the law of Kansas, a plaintiff may either prove the conspiracy by admissible acts of the conspirators, or by admissible acts of different persons. Beverly v. McCullick, 211 Kan. 87, 505 P.2d 624, 626 (1973). Furthermore, the reckless misrepresentations of an employee such as Jones, who is also a co-conspirator, are imputed to FCCB. First Commodity Corporation of Boston v. CFTC, 676 F.2d 1 (1st Cir.1982). Within Count II of their complaint, the Wegerers alleged that FCCB, Donald and Richard Schleicher, together with Robert Jones, pursuant to a conspiracy to defraud, committed tortious acts against them, i.e., false and fraudulent representations and concealing material facts which they relied upon in purchasing two copper commodity option contracts from FCCB for $10,775.00. In determining whether the district court properly instructed on conspiracy we must decide whether (1) the Wegerers established a civil conspiracy, and (2) whether the Wegerers established that the Schleichers were acting outside their official capacities for their personal gain. The Wegerers presented evidence which established that: they responded to an FCCB advertisement which stated that one of its clients had made a profit of 827% in one year; Donald and Richard Schleicher were the principal officers and only directors and shareholders of FCCB; Robert Jones, an FCCB account executive, made numerous phone calls to them within a relatively short period of time during which time he held himself out to be an expert; Jones stated that the Wegerers did not need to read the written material sent to them by FCCB since they would not be able to understand it and the information was being sent out merely to fulfill a legal requirement; Jones stated that copper prices were rising and that they were certain to make a profit; the Wegerers wired FCCB funds totaling $10,775; FCCB accepted the wired funds and mailed out confirmations; FCCB did not sent the Wegerers the contracts Jones said would be sent; the Wegerers were not knowledgeable, sophisticated investors; the Wegerers relied exclusively on Jones as an employee of FCCB in purchasing the option contracts; the Wegerers were unaware that the commission fees on their purchases would equal 100% of the purchase price of the option contracts; FCCB and the Schleichers had entered into a consent decree in 1976 in which FCCB and the Schleichers agreed to cease and desist from a variety of deceptive practices, many of which were identical to the practices utilized in defrauding the Wegerers. Under these circumstances, we hold that the Wegerers established a civil conspiracy to defraud. We further hold that this same, uncontested, evidence established that the Schleichers were acting outside their official capacities as officers and directors of FCCB. They were acting for their personal gain. In evaluating whether the Schleichers were acting outside of their official capacities for their own personal gain, we view the consent decree executed by FCCB and the Schleichers to be of primary importance. Under the decree, voluntarily executed by FCCB and the Schleichers, the Schleichers agreed to be permanently enjoined from cheating or defrauding any other person by, inter alia: representing expected or predicted profits and returns from commodity options, failing to disclose or misrepresent the actual purchase price of commodity options, failing to disclose that the market movements of commodity options or contract cannot be accurately predicted, and failing or omitting to disclose material facts about the nature and character of a customer’s investment in commodity options. Notwithstanding the Schleichers’ voluntary execution of the consent decree on November 11, 1976, the Wegerers presented unchallenged evidence that: after November 11, 1976, FCCB sold them and numerous other customers commodity options utilizing the very fraudulent and deceptive practices permanently enjoined by the consent decree; subsequent to the execution of the consent decree, FCCB’s earnings flourished and Donald and Richard were personally able to sell 20% of FCCB for $4,800,000 and to also personally sell several sales offices for $6,000,000, and that sales proceeds went directly to the Schleichers; and that during this period the Schleichers were borrowing large sums of money from FCCB at six percent per annum interest rates with very favorable repayment terms. Under all of the circumstances, we hold that the Wegerers presented substantial evidence from which the jury could find that the Schleichers were acting outside of their official capacities as officers and directors of FCCB for their personal benefit and that the Schleichers could, accordingly, conspire with FCCB in defrauding the Wegerers. The Schleichers personally benefited from the illegal activities (fraudulent sale of commodity options) in a way separate and distinct from FCCB. Assuming, arguendo, that the Wegerers did not present sufficient evidence upon which the jury could find that the Schleichers were acting outside their official capacities for their personal benefit, the facts in evidence do, in our view, support the application of the alter ego doctrine. In Quarles v. Fuqua Industries, Inc., 504 F.2d 1358, 1362 (10th Cir.1974) we stated: Kansas, however, has recognized the alter ego doctrine. Kilpatrick Bros., Inc. v. Poynter, 205 Kan. 787, 473 P.2d 33 (1970). Under this doctrine, the corporate entity is disregarded and liability fastened on an individual who uses the corporation merely as an instrumentality to conduct his own personal business. The liability must arise from fraud or injustice perpetrated on third parties dealing with the corporation. Id. 473 P.2d at 42. See Doyn Aircraft, Inc. v. Wylie, 443 F.2d 579 (10th Cir.1971). It is uncontested that the appellants’ liability to the Wegerers arose from the fraud perpetrated on them (Wegerers) through their dealings with FCCB. There is sufficient evidence in the record permitting the jury to conclude that the Schleichers, as the principal officers and only-shareholders and directors of FCCB, were utilizing FCCB “merely as an instrumentality to conduct... [their] own personal business.” This is particularly true when, as here, the Schleichers executed the 1976 consent individually. Applying the alter ego doctrine to the facts herein, FCCB’s existence as a corporate entity must be disregarded and the Schleichers reliance on May, supra, for the general rule that officers, directors or employees of a corporation acting in their official capacities cannot conspire with the corporation, is without merit. Thus, we hold that the district court properly instructed the jury by giving Instructions 9 through 11A on conspiracy. IV. The Schleichers contend that the district court erred in finding that it had personal jurisdiction over them. The Schleichers argue that the district court erroneously asserted jurisdiction under K.S.A. § 60-308(b)(2) (1976) when the only contacts they had with Kansas were: (1) execution of the 1976 Consent Decree, (2) in an affidavit, Don Schleicher stated a form letter bearing his signature stamp was mailed to Louis Wegerer in Kansas, and (3) copies of investment recommendations generated by Richard Schleicher were mailed to the Wegerers in Kansas. The Schleichers argue that the district court erroneously concluded that this evidence presented a prima facie showing that the Schleichers had committed a tortious act within Kansas and had sufficient “minimum contacts” with the state to satisfy due process. Schleichers also argue that the district court erroneously found jurisdiction over them individually by way of jurisdiction over FCCB. A party invoking the jurisdiction of the federal courts has the burden of proving that federal jurisdiction does exist. Basso v. Utah Power and Light Company, 495 F.2d 906 (10th Cir.1974). A federal court, in diversity actions, may obtain personal jurisdiction over nonresidents of the state in which the district court is located by complying with the state’s long-arm statute. Quarles v. Fuqua Industries, Inc., supra. Jurisdiction over the individual officers of a corporation, however, may not be obtained merely by accomplishing jurisdiction over the corporation. Escude Cruz v. Ortho Pharmaceutical Corporation, 619 F.2d 902 (1st Cir.1980); Wilshire Oil Company of Texas v. Riffe, 409 F.2d 1277 (10th Cir.1969). In meeting the threshold burden of establishing in personam jurisdiction in a diversity action, a Kansas plaintiff need only make out a prima facie case of the jurisdictional fact of conspiracy or entry into the state. Professional Investing Life Ins. Co. v. Roussel, 445 F.Supp. 687 (D.Ks.1978). Kansas’ long-arm statute, § 60-308(b)(2), provides in part: Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person ... to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts: * # # >}: >¡t * (2) commission of a tortious act within this state; Fraud and deceit in inducement to contract are clearly torts that may cause Kansas residents sufficient injury to invoke Kansas’ legitimate protective interests under § 60-308(b)(2). J.E.M. Corporation v. McClellan, 462 F.Supp. 1246, 1252 (D.Ks.1978). A plaintiff need not establish that a defendant was actually present in Kansas to effectuate service under § 60-308(b)(2), or that the tortious act complained of occurred in Kansas. In J.E.M. Corporation, supra, the court opined: It is inconceivable that the legislature did not also intend to extend service to tortious acts outside the forum that cause tortious injury to a resident in the state, particularly in this day of instant long-range communications when one can engage in extensive purposeful activity here without ever actually setting foot in the state. See Professional Investors Life Ins. Co. v. Roussel, supra, at 695, quoting Ghazoul v. International Management Services, Inc., 398 F.Supp. 307 (S.D.N.Y.1975). 462 F.Supp. at 1252. Applying these standards to the facts herein, we hold that the district court did not err in finding that it had in personam jurisdiction over the Schleichers. V. We have carefully considered the appellants’ remaining allegations of error and find them to be individually and collectively without merit. WE AFFIRM. . Robert Jones was never served and was, accordingly, never a part of the lawsuit. . Although Wegerer responded to an FCCB advertisement in the Houston Post, FCCB was also advertising in the Kansas City Star and Wichita Eagle during 1977 and 1978. . The decree was also executed by John Farwell Howe, III, individually, who is not a party herein. . We previously denied the Schleichers’ Writ of Prohibition which sought review of the district court’s denial of their motion to dismiss for lack of personal jurisdiction. First Commodity Corporation of Boston v. The United States District Court, No. 80-1766 (Aug. 29, 1980). Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_genresp1

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, and International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, Inter-venor, v. ARKANSAS GRAIN CORPORATION, Respondent. No. 18849. United States Court of Appeals Eighth Circuit. March 12, 1968. Rehearing Denied April 24,1968. Harold B. Shore, Attorney, National Labor Relations Board, Washington, D. C., for petitioner; Arnold Ordman, General Counsel, N.L.R.B., Dominick L. Manoli, Associate General Counsel, N.L. R.B., Marcel Mallet-Prevost, Asst. General Counsel, N.L.R.B., and Glen Bendix-sen, Attorney, N.L.R.B., on the brief. B. S. Clark, of Smith, Williams, Friday & Bowen, Little Rock, Ark., for respondent. James C. Paradise and Herbert M. Berman, Cincinnati, Ohio, for intervenor, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO. Before VAN OOSTERHOUT, Chief Judge, MATTHES, Circuit Judge and HARRIS, Chief District Judge. MATTHES, Circuit Judge. This case is before the Court on the petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. §§ 151-168, for enforce-merit of its order issued March 28, 1967 against Respondent Arkansas Grain Corporation. The Board’s order and decision are reported at 163 N.L.R.B. No. 192 (1967). No jurisdictional issue is presented. Upon motion, the Court permitted the International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America (Union) to intervene. Intervenor has filed a brief in support of the petition for enforcement. The Board, in adopting the findings, conclusions and recommendations of the trial examiner, found that Respondent had violated Sections 8(a) (1) and 8(a) (5) of the National Labor Relations Act. We grant the Board’s petition for enforcement of its order with respect to the Section 8(a) (1) violation and deny the same with respect to the Section 8(a) (5) violation. The asserted unfair labor practices stem from an attempt on the part of the Union to organize the employees of Respondent in its plant at Stuttgart, Arkansas, where it is engaged in the business of producing and selling soybean oil and meal. Respondent, through its plant superintendent and other supervisory personnel, manifested its opposition to the Union in a campaign designed to discourage Union affiliation on the part of individual employees. The campaign was commenced in November, 1965. Pursuant to Section 9(c) of the Act, the Union filed a petition with the Board on January 26, 1966 requesting a representation election and certification. At the representation hearing on February 11, 1966 the parties stipulated for a consent election on February 16th. The Union lost the election by a vote of 42 to 30. Thereafter the Union filed timely objections alleging that the Respondent had coercively interfered with its employees’ freedom of choice in the election by interrogation of employees concerning Union meetings and voting intentions and by threats of reduced earnings, reduced working force and the general futility of selecting the Union. The Regional Director sustained these objections and recommended that the election be set aside. Since no exceptions were taken to the Regional Director’s report, the Board on April 8, 1966 ordered the election set aside and directed a second election. Contemporaneously with the filing of the objections to the election the Union filed the unfair labor practices charge underlying this case. SECTION 8(a) (1) VIOLATION We find no compelling need to recite in detail the evidence upon which the Board predicates its finding of a Section 8(a) (1) violation. The examiner’s report exhaustively reviews the pertinent incidents of Respondent’s coercive activity. Several employees testified in effect that during the organizational campaign the superintendent of Respondent’s plant and other supervisory personnel informed them that the ringleaders of the Union movement would be singled out and fired; that if the Union were designated as the bargaining agent there would be a reduction in the number of employees and working hours; that Respondent would never sign a contract with the Union and thus the employees would have to strike to secure their demands with resultant loss of work for many of them. Although Respondent’s officials in general denied the coercive statements attributed to them, the examiner credited the testimony of the employees. Coercive interrogation, threats of reprisal and other acts of interference, such as occurred here, are sufficient to constitute a violation of Section 8(a) (1). N.L.R.B. v. Ralph Printing & Lithographing Company, 379 F.2d 687 (8th Cir. 1967); N.L.R.B. v. Louisiana Manufacturing Company, 374 F.2d 696 (8th Cir. 1967); N.L.R.B. v. Byrds Manufacturing Corporation, 324 F.2d 329 (8th Cir. 1963); Marshfield Steel Company v. N.L.R.B., 324 F.2d 333 (8th Cir. 1963). We disagree with the Board’s suggestion that this is a case of flagrant unfair labor practices. Out of the thirty employees who testified at the hearing, only four or five related events of sufficient gravity to demonstrate the proscribed conduct. Nevertheless on the whole record we hold that the Board’s finding is supported by substantial evidence. SECTION 8(a) (5) VIOLATION Respondent’s refusal to bargain with the Union is predicated upon a rather unique factual situation concerning which there is no real controversy. On January 26, 1966, after the inception of the Union’s organizational drive, Louis J. Woodall, Special International Representative for the Union, advised Respondent by letter that “a majority of your employees in the production and maintenance department have authorized this organization to represent them for the purpose of collective bargaining in wages, hours and working conditions * * *. ” Woodall suggested a February 1st or 2nd meeting date for the purpose of recognition and bargaining. This letter was received by Respondent on January 27th. On the next day, January 28th, Respondent also received a copy of the Union’s petition for a representation election and certification filed with the Board. On the same date Respondent replied to Union’s letter of January 26th and stated in substance that since the Union had petitioned for an election the Respondent assumed that Union desired to have the question of majority representation resolved through that channel. On January 31st C. H. Lindberg, Region Director of the Union, advised Respondent that a majority of its production and maintenance employees had selected the Union as their bargaining agent, that the Union was prepared to demonstrate its majority representation through a check of authorization cards, and that the request for recognition and bargaining should be treated as a continuing demand. In its reply on February 3rd to the Union’s second demand the Respondent declined the offer to demonstrate the Union’s majority by means of a card check on the basis that such an offer was inconsistent with the pending petition for an election. It stands undisputed that on January 27th and February 1st, the respective dates on which Respondent received the two requests for recognition, the Union had not in fact secured authorization cards from a majority of employees in the appropriate unit. Apart from three laboratory employees and a traffic clerk, whom the trial examiner excluded, there were seventy-three employees in the appropriate bargaining unit. On January 27th and February 1st the Union held thirty-five and thirty-six authorization cards, respectively. Two days thereafter, on February 3rd, the Union received its 37th authorization card, giving it a bare majority of one. By February 7th three more employees had signed authorization cards, bringing the total authorization to forty. Notwithstanding the lack of majority representation on the crucial dates the examiner and the Board concluded that Respondent was obligated, on the theory of a continuing demand for recognition, to bargain with the Union and that its failure to do so justified the finding of a violation of Section 8(a) (5). Preliminarily, we again recognize: (1) although representative status may be determined in a Board conducted election pursuant to Section 9(c) of the Act, such an election is not the only method by which a union may demonstrate that it has been designated by a majority of the employees as their representative in an appropriate bargaining unit. United Mine Workers of America v. Arkansas Oak Flooring Company, 351 U.S. 62, 72 n. 8, 76 S.Ct. 559, 100 L.Ed. 941 (1956); N.L.R.B. v. Ralph Printing & Lithographing Company, supra, 379 F.2d at 692-693; Colson Corporation v. N.L.R.B., 347 F.2d 128, 135 (8th Cir. 1965), cert. denied, 382 U.S. 904, 86 S.Ct. 240, 15 L.Ed.2d 157 (1965); N.L.R.B. v. Philamon Laboratories, Inc., 298 F.2d 176, 179 (2d Cir. 1962), cert. denied, 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962); (2) where a union has obtained valid authorization cards from a majority of the employees in an appropriate unit, the employer is vulnerable to a Section 8(a) (5) violation if, absent a good faith doubt as to its majority status, he refuses to recognize and bargain with the union. N.L.R.B. v. Ralph Printing & Lithographing Company, supra, 379 F.2d at 693; N.L.R.B. v. Comfort, Inc., 365 F.2d 867, 876 (8th Cir. 1966). This background material brings into focus two basic issues at hand: (1) Does an employer commit an unfair labor practice by refusing to recognize and bargain with a union upon request when the union admittedly did not represent a majority of the employees in the appropriate unit at the time it asserted its majority status and demanded recognition and bargaining? (2) Where the union, although representing only a minority of the employees at the time of the request for recognition and bargaining, nonetheless expresses its request in terms of a continuing demand on the employer, does the latter’s refusal to recognize and bargain with the union without disputing the union’s representative capacity become an unfair labor practice if the union within a reasonable time thereafter obtains valid authorization cards from a majority of the employees? We hold that an employer, irrespective of his motivations, does not violate Section 8(a) (5) by refusing to recognize and bargain with a union, if in fact the union at the time of the demand for recognition does not represent a majority of the employees. The rationale underlying the 8(a) (5) violations in N.L.R.B. v. Ralph Printing & Lithographing Company, supra, and N.L.R.B. v. Comfort, Inc., supra, clearly demonstrates, we believe, that two elements must concur to render a refusal to bargain violative of Section 8(a) (5): (1) a demand for recognition and bargaining by a union validly designated by a majority of the employees as their representative in an appropriate bargaining unit; (2) a refusal to bargain which is not motivated by a good faith doubt of the union’s majority status. Here, the Union concededly did not represent a majority of Respondent’s employees on either January 27th or February 1st, the dates on which Respondent received the respective Union demands for recognition and bargaining. Absent a majority representation, the Union’s demands were meaningless and therefore ineffective to form a basis upon which to predicate an unlawful refusal to bargain. We reach this conclusion irrespective of the fact that the Respondent may not have based its refusal to bargain on a good faith doubt as to the Union’s majority. An employer’s motivations behind his refusal to bargain become relevant only if in fact a majority representation does exist. See, e. g., Crawford Manufacturing Co. v. N.L.R.B., 386 F.2d 367, 372 (4th Cir. 1967); N.L.R.B. v. Heck’s Inc., 386 F.2d 317, 321-322 (4th Cir. 1967); N.L.R.B. v. S. E. Nichols Company, 380 F.2d 438, 441-442 (2d Cir. 1967); N.L.R.B. v. Koehler, 328 F.2d 770, 773 (7th Cir. 1964). Our conclusion, moreover, is reinforced by the fact that if Respondent at the time had acceded to either of the Union’s demands for recognition and bargaining in the mistaken belief that Union did represent a majority of the employees, both might have engaged in an unfair labor practice in violation of Sections 8(a) (1) and 8(b) (1) (A) of the Act. Section 7 of the Act accords employees the right to reject as well as accept the principle of collective bargaining through representatives of their own choice. In such a hypothetical situation Respondent’s grant of exclusive bargaining status to a union selected by a minority of employees would have forced that union upon the nonconsenting majority, thereby interfering with the majority’s right to refrain from self-organization. See International Ladies, Garment Workers’ Union, AFL-CIO v. N.L.R.B., 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961). The remaining issue for determination is whether the Respondent’s refusal to recognize and bargain with the Union assumes a different posture in view of the fact that the Union requested the Respondent to treat its second demand for recognition as a “continuing demand.” The Board found that in each of its respective demands the Union “honestly but mistakenly” assumed that it represented a majority of Respondent’s employees. The Board adopted the position that Respondent’s “peremptory” refusal to recognize or bargain with the Union obviated the necessity for the Union to tender another formal demand for recognition when it obtained a majority status and permitted the Union to treat its last written demand as continuing for a reasonable time until it had attained a majority of forty authorization cards on February 7th. We reject the theory that the Union’s formal request for recognition, embodied in its letter of January 31st, amounted to a valid continuing demand upon the Respondent to recognize and bargain with the Union up to the point when it achieved its majority status. If, as we have held, the original demand itself is wholly ineffective to create any rights or obligations in the respective parties by reason of a lack of majority representation, a fortiori, it cannot form the basis for the expression of a valid continuing demand on the Respondent, the'rejection of which would amount to a refusal to bargain. In support of its continuing demand theory the Board places great emphasis upon the decision of the District of Columbia Circuit in Local No. 152 v. N.L.R.B., 120 U.S.App.D.C. 25, 343 F.2d 307 (1965). In that case the employer on two occasions outrightly rejected a union demand for recognition at a time when the union purported to represent, but did not in fact represent, a majority of the employees. The Board construed the union’s conduct as a continuing demand for recognition under circumstances where a formal demand would have proved futile. The Court of Appeals adopted this approach and held: “An employer violates Section 8(a) (5) when, as here, it rejects a Union’s bargaining request, made in the honest but mistaken belief that a majority has been obtained, without questioning the Union’s representative status, and the Union does obtain a majority shortly after such request.” 343 F.2d at 310. We are not persuaded by the reasoning of the District of Columbia Circuit to modify our holding in this case. The conduct of the Union in the case at bar belies its assertion of an “honest but mistaken” claim of majority representation at the time of its demands for recognition. The record refutes the good faith of the Union in submitting its demands for recognition on the basis of its representation at that time. Neither Louis J. Woodall nor C. H. Lind-berg, the Union representatives who authored the written demands for recognition, testified at the hearing as to the basis for the Union’s belief that it had a majority. Apart from the disputed status of the four employees, whom Respondent contends should have been included in the unit, the composition and size of the appropriate bargaining unit were readily ascertainable at the time the Union presented its demands. Indeed, the very inclusion of the provision for a continuing demand in the second request for recognition on January 31st carries with it a tacit acknowledgment that the Union either knew it had no majority or had serious doubts as to the existence of its majority status. If the Union had the majority backing and a means of demonstrating that status a demand for recognition accompanied with the requisite offer of proof was sufficient to establish Respondent’s obligation to bargain and consequential liability for a refusal to bargain, absent a good faith doubt. Since the rights and liabilities of the respective parties were fixed as of that date, a “continuing demand” had no operative effect to change the status of the parties, and therefore no independent significance, except perhaps from a desire on the part of the Union to have a demand for recognition on record when and if it ultimately achieved its majority status. The unfair advantage which may accrue to a union which predicates its right of representation upon a continuing demand when it knowingly has not secured valid authorization cards from a majority of the employees in the appropriate unit is readily evident. If such a procedure is sanctioned, a union may assert a continuing demand even though it has secured authorization cards from only a substantial minority of the employees. If the employer fails to accede to the demand without disputing in any manner the union’s representative capacity, the foundation has been laid for a Section 8(a) (5) violation in the event the union in its campaign among the employees ultimately succeeds in obtaining valid cards from a majority. Such a practice is fraught with perils not only for the employer, but for the employees. We believe that the standard of good faith imposed upon the employer applies with equal force to a union, and that it should not be placed in a position where it may secure an unfair advantage to the possible detriment of all other interested parties. The Board argues, however, that even if the facts here did not establish a technical violation of Section 8(a) (5) since the Union did not represent a majority at the time of the formal demand for recognition, the Respondent’s violation of Section 8(a) (1) and its rejection of the collective bargaining principle nonetheless clearly warrant a bargaining order. We disagree. This contention proceeds on the theory that the conduct of Respondent giving rise to the 8(a) (1) violation was so coercive and aggravated as to effectively dissipate the employees’ support for the Union and impair the Union’s chances of prevailing in a second election. We do not doubt that a bargaining order rather than a cease and desist order may at times be an appropriate remedy to restore the status quo, particularly where the union’s support among the employees has been chilled as the result of the employer’s unfair labor practices, the effects of which might vitiate any strong union support in a subsequent election. See, e. g., Wausau Steel Corporation v. N.L.R.B., 377 F.2d 369, 373-374 (7th Cir. 1967); United Steel Workers of America v. N.L.R.B., 126 U.S.App.D.C. 215, 376 F.2d 770, 772-773 (1967), cert. denied, Northwest Engineering Co. v. N.L.R.B., 389 U.S. 932, 88 S.Ct. 297, 19 L.Ed.2d 285 (1967). As stated above, Respondent did not engage in any outrageous or aggravated conduct. We do not believe therefore that its conduct, though in violation of Section 8(a) (1), would have such a substantial impact on the employees’ freedom of choice in a second election as to render nugatory the effect of a cease and desist order. We agree with the principles enunciated in N.L.R.B. v. S. S. Logan Packing Company, supra, where the Court aptly stated the circumstances under which a bargaining order may be the appropriate remedy for violations of Section 8(a) (1): “In those exceptional cases where the employer’s unfair labor practices are so outrageous and pervasive and of such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had, the Board may have the power to impose a bargaining order as an appropriate remedy for those unfair practices. Then it is imposed without need of answering the question whether the union ever obtained majority status. The remedy is an extraordinary one, however, and, in light of the guaranty of § 7 of employees’ rights not to be represented, its use, if ever appropriate, must be reserved for extraordinary cases.” 386 F.2d at.570-571. Cf. N.L.R.B. v. Flomatic Corporation, 347 F.2d 74 (2d Cir. 1965). In summary, viewing the record as a whole, we are satisfied that the matter of choosing a bargaining representative for Respondent’s employees should be determined through the process of another Board election. In accordance with the views herein expressed, enforcement is granted in part and denied in part. . The other employees who testified merely identified the authorization cards which they had signed. . Respondent urged before the Board and contends here that the three laboratory employees and the traffic clerk should not have been excluded from the bargaining unit. Although there is substance to Respondent’s contention in this regard, we do not decide that question in view of our disposition of the Section 8(a) (5) issue. . On two occasions, February 12th and February 14th respectively, a total of seven of Respondent’s employees, at the direction of a Board representative, wrote to the Board’s regional office in Memphis, Tennessee stating (1) that they no longer wished to be represented by the Union and (2) that their authorization cards be can-celled and returned to them. Both letters indicated that a copy had been sent to Mr. Woodall, the Union’s representative. The Board contends that inasmuch as the evidence failed to show that the Union had actually received notice of the withdrawal of authorization, the letters were ineffective to that end. In view of our disposition of the case we do not reach the question of the validity and effect of the withdrawal letters. If they were effective, the Union did not represent a majority of the employees at any time prior to the election. . While we need not reach the issue whether Respondent’s refusal to bargain was prompted by a good faith doubt as to the Union’s majority status, we do not share the Board’s characterization of Respondent’s conduct as an outright and adamant refusal to bargain without a good faith doubt of majority status. The Board construed the Union’s second letter as a continuing demand for recognition on the basis of Respondent’s “peremptory” refusal to bargain. Respondent’s reply on February 3rd to the Union’s second demand for recognition, while purporting to reject a demonstration of majority status by means of union authorization cards, is not tantamount to an admission of majority status or an acknowledgment that the Respondent did not in good faith doubt that status. In short, Respondent’s letter does not negative the existence of a good faith doubt but only questions the method by which the Union seeks to prove its majority status. While this Circuit has accepted a demonstration of majority status on the basis of valid authorization cards, we are nonetheless mindful of the vices and pressures inherent in their unsupervised solicitation. In a proper case therefore authorization cards may be a totally unreliable indication of majority status and constitute a sufficient basis for the employer to entertain a good faith doubt as to that status. See, e. g., N.L.R.B. v. S. S. Logan Packing Co., 386 F.2d 562 (4th Cir. 1967). Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

songer_applfrom

E

What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). UNITED STATES of America, Plaintiff-Appellee, v. Lawrence A. TRUMBLAY, Defendant-Appellant. No. 13139. United States Court of Appeals Seventh Circuit. Feb. 15, 1961. Lawrence A. Trumblay, in pro. per., Tor appellant. Charles R. LeMaster, Asst. U. S. Atty., Kenneth C. Raub, U. S. Atty., Fort Wayne, Ind., for appellee. Before HASTINGS, Chief Judge, and DUFFY and CASTLE, Circuit Judges. DUFFY, Circuit Judge. Defendant was charged by an information in two counts with the offense of robbing the National Bank and Trust Company of South Bend, Indiana, a bank insured by the Federal Deposit Insurance Corporation. Count I charged violation of section 2113(a), Title 18 U.S.C. Count II charged violation of section 2113(d), Title 18 U.S.C. In February, 1953, after a trial before a jury, defend.ant was convicted upon both counts. The instant appeal represents the fifth time that defendant has been before this Court since his conviction in 1953. After the trial in 1953, and after a denial of his timely motion for a new trial, defendant appealed from the judgment of conviction and urged four alleged errors committed during the course of the trial. The decision of the trial court was affirmed. United States v. Trumblay, 7 Cir., 208 F.2d 147. In 1955, defendant filed a motion to vacate sentence pursuant to section 2255, Title 28 U.S.C. Upon the hearing, the trial court vacated the 5-year sentence imposed upon Count I, but left the 25 year sentence under Count II intact. An appeal to this Court resulted in an affirmance. United States v. Trumblay, 7 Cir., 234 F.2d 273, certiorari denied 352 U.S. 931, 77 S.Ct. 233, 1 L.Ed.2d 166. In 1957, defendant filed a second motion under section 2255. The grounds of this motion included 1) denial of effective representation by counsel at the trial; 2) failure of the defense attorney to call a critical alibi witness, and 3) the knowing use of manufactured evidence by the government. The trial court denied the motion and upon appeal the trial •court was affirmed by this Court. United States v. Trumblay, 7 Cir., 256 F.2d 615. In 1959, defendant filed a third motion to vacate sentence under section 2255. The ground alleged was that defendant had been denied the effective representation of counsel. Trumblay claimed the attorney who had been chosen by defendant himself, did not adequately speak on his behalf at the time of sentencing in 1953. The trial court denied this motion without a hearing on the ground that the motion, files and records conclusively showed defendant was entitled to no relief. Upon appeal, the action of the trial court was affirmed. Trumblay v. United States, 7 Cir., 278 F.2d 229. On July 29, 1960, defendant filed in the District Court a motion which culminated in the present appeal. The motion was filed pursuant to Rule 35, Federal Rules of Criminal Procedure, 18 U.S.C., and sought vacation of the 25-year sentence imposed under Count II upon the alleged ground that the Court, in imposing the sentence of five years on Count I, had exhausted its power to sentence further. On the same day the motion was filed, the District Court entered an order denying defendant’s motion to vacate sentence, and referred in its memorandum to the fact that the 5-year sentence under Count I previously vacated in 1956 could not now be treated as valid for the purpose of attacking the 25-year sentence imposed under Count II. From the District Court’s order denying defendant’s motion to vacate sentence, the instant appeal was taken. On the instant appeal, as defendant was unable to be personally present before this Court at the time set for oral argument, the government agreed the issues herein might be decided on the briefs theretofore filed and without oral argument. This has been done. Defendant’s principal contention is that when the District Court imposed a 5-year sentence under Count I, it exhausted its power to sentence under Count II and, therefore, the 25-year sentence imposed under Count II is invalid. Implicit in defendant’s present argument is that the District Court was in error in 1956 when it set aside the 5-year sentence on Count I. Of course, this was done on defendant’s motion hereinbefore described. This Court approved the correction made by the District Court. United States v. Trumblay, 7 Cir., 234 F.2d 273, 275, certiorari denied 352 U.S. 931, 77 S.Ct. 233, 1 L.Ed.2d 166. Prior to Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, there were differing views as to the doctrine of merger under the federal bank robbery statute. It is now well established that an offense under section 2113 (a), simple bank robbery, for sentencing purposes becomes merged with the more aggravated offense under section 2113 (d), while committing a bank robbery, assaulting any person, or putting in jeopardy the life of any person by the use of a dangerous weapon. Thus, the maximum sentence which could properly be imposed for a violation of these two sections is twenty-five years. Defendant seeks a complete vacation of the 25-year sentence. He claims to be proceeding under Rule 35, Federal Rules of Criminal Procedure, which provides that the Court may correct an illegal sentence at any time. Apparently, the correction asked by defendant is to do away with the sentence completely. The District Court already has corrected the sentence. It did so in 1956. In its discretion, it decided the corrected sentence should be for a term of twenty-five years. The District Court did not exceed its power or authority in making such correction. We reject the theory urged by defendant that the District Court exhausted its power when it imposed the 5-year sentence on Count I. Defendant’s confidence in Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392, is misplaced. It is true that case, like the instant case, dealt with successive sentences for bank robbery and for assaulting with a deadly weapon in connection with that robbery. It was also assumed that only one valid sentence could be imposed. The Holiday case arose on a petition for habeas corpus. The Supreme Court advised Holiday his remedy was to apply for a vacation of sentence and a re-sentencing. Holiday made such a motion in the district court. That court vacated the shorter term for bank robbery under-Count I, but left intact the longer consecutive sentence imposed under Count II.. Holiday appealed. The Court of Appeals for the Eighth-Circuit held there was no error. Holiday v. United States, 130 F.2d 988, certiorari denied 317 U.S. 691, 63 S.Ct. 265, 87 L.Ed. 553. The Court stated, 130 F.2d at pages 989-990, “Whether Holiday entered one plea of guilty to the indictment or a separate plea to each count, we regard as immaterial. * * * It is our opinion that the indictment, after plea of guilty and for the purpose of sentence,, charged but one offense, which was the-offense fully described in the second count; that that count and the sentence-imposed under it were valid; and that the court below did not err in sustaining that sentence and vacating the sentence imposed under the first count.” The order of the District Court is Affirmed. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:

sc_casesource

024

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. GLOVER et al. v. ST. LOUIS-SAN FRANCISCO RAILWAY CO. et al. No. 38. Argued November 14, 1968. Decided January 14, 1969. William M. Acker, Jr., argued the cause and filed a brief for petitioners. Donald W. Fisher argued the cause for respondents. On the brief for respondent St. Louis-San Francisco Railway Co. was Paul R. Moody. With Mr. Fisher on the brief for respondent Brotherhood of Railway Carmen of America were Richard R. Lyman and Jerome A. Cooper. Mr. Justice Black delivered the opinion of the Court. The 13 petitioners here, eight Negroes and five white men, are all employees of the respondent railroad, whose duties are to repair and maintain passenger and freight cars in the railroad's yard at Birmingham, Alabama. They brought this action in the United States District Court against the railroad and the Brotherhood of Railway Carmen of America, which is the duly selected bargaining agent for carmen employees. The complaint alleged that all of the plaintiffs were qualified by experience to do the work of carmen but that all had been classified as carmen helpers for many years and had not been promoted. The complaint went on to allege the following explanation for the railroad's refusal to promote them: “In order to avoid calling out Negro plaintiffs to work as Carmen and to avoid promoting Negro plaintiffs to Carmen, in accordance with a tacit understanding between defendants and a subrosa agreement between the Frisco and certain officials of the Brotherhood, defendant Frisco has for a considerable period of time used so-called ‘apprentices’ to do the work of Carmen instead of calling out plaintiffs to do said work as required by the Collective Bargaining Agreement as properly and customarily interpreted; and the Frisco has used this means to avoid giving plaintiffs work at Carmen wage scale and permanent jobs in the classification of Carmen. This denial to plaintiffs of work as Carmen has been contrary to previous custom and practice by defendants in regard to seniority as far as ‘Upgrade Carmen’ are concerned. Defendant Frisco is not calling any of plaintiffs to work as Carmen in order to avoid having to promote any Negroes to Carmen.” The complaint also claimed that each plaintiff had lost in excess of $10,000 in wages as the result of being a victim of “an invidious racial discrimination,” and prayed for individual damages, for an injunction to cause the defendants to cease and desist from their discrimination against petitioners and their class and “for any further, or different relief as may be meet and proper . . ..” The respondents moved to dismiss the complaint on the ground, among others, that petitioners had not exhausted the administrative remedies provided for them by the grievance machinery in the collective bargaining agreement, in the constitution of the Brotherhood, and before the National Railroad Adjustment Board. The District Court, in an unreported opinion, sustained the motion to dismiss, and the petitioners then filed the following amendment to their complaint: “On many occasions the Negro plaintiffs through one or more of their number, have complained both to representatives of the Brotherhood and to representatives of the Company about the foregoing discrimination and violation of the Collective Bargaining Agreement. Said Negro plaintiffs have also called upon the Brotherhood to process a grievance on their behalf with the Company under the machinery provided by the Collective Bargaining Agreement. Although a representative of the Brotherhood once indicated to the Negro plaintiffs that the Brotherhood would ‘investigate the situation/ nothing concrete was ever done by the Brotherhood and no grievance was ever filed. Other representatives of the Brotherhood told the Negro plaintiffs time and time again: (a) that they were kidding themselves if they thought they could ever get white men’s jobs; (b) that nothing would ever be done for them; and (c) that to file a formal complaint with the Brotherhood or with the Company would be a waste of their time. They were told the same things by local representatives of the Company. They were treated with condescension by both Brotherhood and Company, sometimes laughed at and sometimes ‘cussed/ but never taken seriously. When the white plaintiffs brought their plight to the attention of the Brotherhood, they got substantially the same treatment which the Negro plaintiffs received, except that they were called ‘nigger lovers’ and were told that they were just inviting trouble. Both defendants attempted to intimidate plaintiffs, Negro and white. Plaintiffs have been completely frustrated in their efforts to present their grievance either to the Brotherhood or to the Company. In addition, to employ the purported internal complaint machinery within the Brotherhood itself would only add to plaintiffs’ frustration and, if ever possible to pursue it to a final conclusion it would take years. To process a grievance with the Company without the cooperation of the Brotherhood would be a useless formality. To take the grievance before the National Railroad Adjustment Board (a tribunal composed of paid representatives from the Companies and the Brotherhoods) would consume an average time of five years, and would be completely futile under the instant circumstances where the Company and the Brotherhood are working ‘hand-in-glove.’ All of these purported administrative remedies are wholly inadequate, and to require their complete exhaustion would simply add to plaintiffs’ expense and frustration, would exhaust plaintiffs, and would amount to a denial of ‘due process of law,’ prohibited by the Constitution of the United States.” The District Court again sustained the motion to dismiss. The Court of Appeals affirmed the dismissal, agreeing with the opinion of the District Court and adding several authorities to those cited by the District Court, 386 F. 2d 452 (C. A. 5th Cir. 1967), and we granted certiorari, 390 U. S. 1023 (1968). We think that none of the authorities cited in either opinion justify the dismissal and reverse and remand the case for trial in the District Court. It is true, as the respondents here contend, that this Court has held that the Railroad Adjustment Board has exclusive jurisdiction, under § 3 First (i) of the Railway Labor Act, set out below, to interpret the meaning of the terms of a collective bargaining agreement. We have held, however, that § 3 First (i) by its own terms applies only to “disputes between an employee or group of employees and a carrier or carriers.” Conley v. Gibson, 355 U. S. 41, 44 (1957). In Conley, as in the present case, the suit was one brought by the employees against their own union, claiming breach of the duty of fair representation, and we held that the jurisdiction of the federal courts was clear. In the present case, of course, the petitioners sought relief not only against their union but also against the railroad, and it might at one time have been thought that the jurisdiction of the Railroad Adjustment Board remains exclusive in a fair representation case, to the extent that relief is sought against the railroad for alleged discriminatory performance of an agreement validly entered into and lawful in its terms. See, e. g., Hayes v. Union Pacific R. Co., 184 F. 2d 337 (C. A. 9th Cir. 1950), cert. denied, 340 U. S. 942 (1951). This view, however, was squarely rejected in the Conley case, where we said, “[F]or the reasons set forth in the text we believe [Hayes, supra] was decided incorrectly.” 355 U. S., at 44, n. 4. In this situation no meaningful distinction can be drawn between discriminatory action in negotiating the terms of an agreement and discriminatory enforcement of terms that are fair on their face. Moreover, although the employer is made a party to insure complete and meaningful relief, it still remains true that in essence the “dispute” is one between some employees on the one hand and the union and management together on the other, not one “between an employee or group of employees and a carrier or carriers.” Finally, the Railroad Adjustment Board has no power to order the kind of relief necessary even with respect to the railroad alone, in order to end entirely abuses of the sort alleged here. The federal courts may therefore properly exercise jurisdiction over both the union and the railroad. See also Steele v. Louisville & Nashville R. Co., 323 U. S. 192 (1944). The respondents also argue that the complaint should be dismissed because of the petitioners’ failure to exhaust their remedies under the collective bargaining agreement, the union constitution, and the Railway Labor Act. They rely particularly on Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965), and Vaca v. Sipes, 386 U. S. 171 (1967). The Court has made clear, however, that the exhaustion requirement is subject to a number of exceptions for the variety of situations in which doctrinaire application of the exhaustion rule would defeat the overall purposes of federal labor relations policy. Thus, in Vaca itself the Court stressed: “[I]t is settled that the employee must at least attempt to exhaust exclusive grievance and arbitration procedures established by the bargaining agreement. Republic Steel Corp. v. Maddox, 379 U. S. 650. However, because these contractual remedies have been devised and are often controlled by the union and the employer, they may well prove unsatisfactory or unworkable for the individual grievant. The problem then is to determine under what circumstances the individual employee may obtain judicial review of his breach-of-contract claim despite his failure to secure relief through the contractual remedial procedures.” 386 U. S., at 184-185. The Court in Vaca went on to specify at least two situations in which suit could be brought by the employee despite his failure to exhaust fully his contractual remedies. The circumstances of the present case call into play another of the most obvious exceptions to the exhaustion requirement — the situation where the effort to proceed formally with contractual or administrative remedies would be wholly futile. In a line of cases beginning with Steele v. Louisville & Nashville R. Co., supra, the Court has rejected the contention that employees alleging racial discrimination should be required to submit their controversy to “a group which is in large part chosen by the [defendants] against whom their real complaint is made.” 323 TJ. S., at 206. And the reasons which prompted the Court to hold as it did about the inadequacy of a remedy before the Adjustment Board apply with equal force to any remedy administered by the union, by the company, or both, to pass on claims by the very employees whose rights they have been charged with neglecting and betraying. Here the complaint alleges in the clearest possible terms that a formal effort to pursue contractual or administrative remedies would be absolutely futile. Under these circumstances, the attempt to exhaust contractual remedies, required under Maddox, is easily satisfied by petitioners’ repeated complaints to company and union officials, and no time-consuming formalities should be demanded of them. The allegations are that the bargaining representatives of the car employees have been acting in concert with the railroad employer to set up schemes and contrivances to bar Negroes from promotion wholly because of race. If that is true, insistence that petitioners exhaust the remedies administered by the union and the railroad would only serve to prolong the deprivation of rights to which these petitioners according to their allegations are justly and legally entitled. The judgment is reversed and the case is remanded for trial. Reversed and remanded. In full, §3 First (i) reads: “The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on the date of approval of this Act [June 21, 1934], shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.” 48 Stat. 1191, 45 TJ. S. C. § 153 First (i). See, e. g., Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239. Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:

songer_circuit

A

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. J.F. WHITE CONTRACTING COMPANY, Plaintiff, Appellee, v. LOCAL 103 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Defendant, Appellant. No. 89-1030. United States Court of Appeals, First Circuit. Heard Sept. 14, 1989. Decided Nov. 29, 1989. Thomas J. Flynn, Arlington, Mass., for Local 103 Intern. Broth, of Elec. Workers. John D. O’Reilly, III, with whom O’Reilly & Grosso, Framingham, Mass., was on brief, for J.F. White Contracting Co. Paul F. Kelly, with whom Segal, Roitman & Coleman, Boston, Mass., was on brief, for Massachusetts Laborers’ Dist. Council. Before BREYER, Circuit Judge, COFFIN, Senior Circuit Judge, and MAYER, Circuit Judge. Of the United States Court of Appeals for the Federal Circuit, sitting by designation. BREYER, Circuit Judge. J.F. White Contracting Co. (“White Co.”) has a contract with a group of laborers represented by Massachusetts Laborers’ District Council (the “Laborers”), in which it promises to let them perform pre-cast concrete work, trench preparation and backfilling, and the setting of pipes and conduits in trenches, on a certain Massachusetts subway rehabilitation project. It also has a contract with a group of electricians represented by the International Brotherhood of Electrical Workers Local 103 (the “Electrical Workers”), in which it promises to let them perform “any electrical work” on the same job. See Agreement and Working Rules Between Elec. Workers Local 103 and Electrical Contractors Ass'n. § 2.5(b). Each group claimed the right to place sections of pre-cast concrete duct that would carry electrical wires into a trench dug alongside some subway tracks. White Co. gave the work to the Laborers. The Electrical Workers then obtained an arbitration award requiring White Co. to give them the job. When the Laborers threatened to strike if White Co. complied with the award, White Co. obtained an NLRB determination that the Laborers should have the work. See Massachusetts Laborers’ Dist. Council (J.F. White Contracting Co.), 290 N.L.R.B. No. 40 (July 19, 1988). On the strength of this NLRB determination, a federal district court granted White Co.’s request to vacate the arbitration award. The Electrical Workers now appeal this district court decision (vacating the arbitration award) to us. We can find no legal error in the district court’s judgment or in the reasoning of its accompanying opinion. The NLRB acted pursuant to its statutory authority when it assigned the disputed work to the Laborers. See NLRA § 8(b)(4)(D), 29 U.S.C. § 158(b)(4)(D) (making it an unfair labor practice for a union to strike in support of its claim to disputed work); NLRA § 10(k), 29 U.S.C. § 160(k) (“empowering] and directing]” the Board “to hear and determine” work disputes involving strikes or threatened strikes); NLRB v. Radio and Television Broadcast Eng’rs Local 1212, 364 U.S. 573, 579, 81 S.Ct. 330, 334, 5 L.Ed.2d 302 (1961) (directing the NLRB to settle such disputes by making an affirmative award of the work). It is well-established law that courts are not to enforce an arbitration award that conflicts with a § 10(k) determination. See International Longshoremen’s v. Maritime Ass’n, 773 F.2d 1012, 1016-17 (9th Cir.1985), cert. denied, 476 U.S. 1158, 106 S.Ct. 2277, 90 L.Ed.2d 720 (1986); Chauffeurs Local No. 50 v. McCartin-McAuliffe Mechanical Contractor, Inc., 708 F.2d 313, 315 (7th Cir.1983); International Union (UAW) v. Rockwell Int’l Corp., 619 F.2d 580, 582-84 (6th Cir.1980); New Orleans Typographical Union No. 17 v. NLRB, 368 F.2d 755, 767 (5th Cir.1966); see also Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 267, 84 S.Ct. 401, 406, 11 L.Ed.2d 320 (1964) (“Should the Board disagree with [an] arbiter” over a jurisdictional dispute, “the Board’s ruling would, of course, take precedence”) (dicta); NLRB v. Hunter Outdoor Products, Inc., 440 F.2d 876, 881 (1st Cir.1971) (adopting this language from Carey). The conflict here is plain. The NLRB determined that the “Laborers[ ] ... are entitled to perform the handling and installation of pre-cast enclosures for electrical conduit ... at the ... construction project....” The arbitration decision reads in its entirety: J.F. White Contracting, Inc. is found in violation of Article II, Section 2.5(b) & (c) of the Collective Bargaining Agreement [forbidding the “assigning ... of any ... electrical work to any person” other than an electrical worker] and is ordered to cease and desist in the violation of the Agreement. The arbitration award specifically orders White Co. to take from the Laborers the very work that the NLRB has said they should have. The Electrical Workers point to cases where courts have refused to vacate an arbitration award despite a claim by one party that the award conflicted with an NLRB decision. See Hutter Const. Co. v. International Union of Operating Eng’rs Local 139, 862 F.2d 641 (7th Cir.1988); Associated General Contractors v. Boston Dist. Council of Carpenters, 599 F.Supp. 1560 (D.Mass.1985), later proceeding, Local 33, United Bhd. of Carpenters (Blount Bros.), 289 NLRB No. 167 (July 29, 1988); see also Associated General Contractors v. International Union of Operating Eng’rs Local 701, 529 F.2d 1395 (9th Cir.), cert. denied, 429 U.S. 822, 97 S.Ct. 72, 50 L.Ed.2d 84 (1976). In none of those cases, however, did a conflict like this one exist. In Hutter, for example, (which is substantially identical to the other cases cited) the Seventh Circuit found “no[ ] conflict” sufficient to vacate an arbitration award. See Hutter, 862 F.2d at 646. But, the circumstances were as follows: A construction company signed a multiparty agreement in which it promised forklifting work to employees called “Operators” and also promised not to subcontract forklifting work to any contractor who was not a party to the agreement. The company then broke the latter promise by subcontracting forklift-ing work to a nonsigning firm, and that subcontractor, in turn, gave the work to Laborers rather than to Operators. After strike activity led to a § 10(k) hearing, (1) the NLRB told the subcontractor to assign the work to Laborers, and (2) arbitrators found the company had broken its “no subcontracting to nonsigners” promise and awarded the Operators back pay. We can understand how a court might have found no significant conflict on these facts, for the company could obey the arbitrators’ award without interfering with the subcontractor’s duty to assign forklifting work to Laborers. In our case, however, White Co. cannot abide by its agreement with the Electrical Workers (as construed by the arbitrators) without also violating the NLRB’s order to assign the disputed work to the Laborers. Consequently, the facts of this case show a far more direct and serious conflict than those in Hutter and the other cases cited above. Appellant also raises two arguments that, in effect, attack the validity of the Board’s § 10(k) decision. Appellant points to a Massachusetts statute that says No person ... shall ... work at ... installing wires [or] conduits ... for carrying or using electricity ... unless such person ... shall have received a license ... issued by the state examiners of electricians.... Mass.Gen.L. ch. 141, § 1. The Board members at the § 10(k) hearing were aware of this statute, but a majority of them held that the disputed work was “not fairly considered electrical.” See Massachusetts Laborers’ District Council (J.F. White Contracting Co.), supra. Appellant, however, has obtained a ruling from the Massachusetts Board of State Examiners of Electricians that the disputed work is electrical within the meaning of this statute. Appellant also has found a recent case in which the Board assigned disputed work to a group of electricians after the Massachusetts State Examiners ruled that only licensed electricians could perform the work. See Sheet Metal Workers Local 17 (Park Davis Co.), 296 N.L.R.B. No. 4 (Aug. 7, 1989). From this appellant concludes: (1) that the NLRB should have considered the licensing statute dispositive of the jurisdictional question, and (2) that the NLRB, by awarding the work to (presumably unlicensed) Laborers, “usurp[ed] the police power of the Commonwealth” and “illegally] preempted]” the Massachusetts statute. White Co. disputes both these arguments on the merits. In respect to the first argument, it points out that in making a § 10(k) determination the Board may consider and weigh all factors that it deems relevant in light of its experience and common sense. See Broadcast Eng’rs, 364 U.S. 573, 582-83, 81 S.Ct. 330, 335-36, 5 L.Ed.2d 302 (1961); International Ass ’n of Machinists Lodge 1743 (J.A. Jones Constr. Co.), 135 N.L.R.B. 1402, 1410-11 (1962) (listing factors). As to the second argument, it denies any ‘usurpation’ or ‘preemption,’ for it says that the NLRB decision does not free the Laborers from any proper licensing requirement that state law may mandate, including a requirement to obtain an electrical license. Whatever the merits of these two legal issues, we cannot decide them, for it is well established that “N.L.R.B. determinations under section 10(k) are not directly reviewable in this or any other court.” International Union of Operating Engineers v. Sullivan Transfer, 650 F.2d 669, 678 (5th Cir.1981); see Henderson v. ILWU Local 50, 457 F.2d 572, 577-78 (9th Cir.), cert. denied sub nom. Pacific Maritime Ass’n v. NLRB, 409 U.S. 852, 93 S.Ct. 65, 34 L.Ed.2d 95 (1972); New Orleans Typographical Union No. 17, 368 F.2d at 762. To obtain review of such a decision, a party must fail to comply, thereby precipitating an “unfair labor practice”, proceeding in which the § 10(k) award becomes important evidence. When that proceeding culminates, as it must, in a final order, the disappointed party can bring the order into court and challenge the underlying § 10(k) determination. See NLRA § 10(f), 29 U.S.C. § 160(f) (providing for review in the courts of appeals of “a final order of the Board”); Sullivan Transfer, 650 F.2d at 675 (explaining that a § 10(k) determination is unreviewable because it is not a “final order” of the Board) (citing NLRB v. Plasterers' Union No. 79, 404 U.S. 116, 126-27, 92 S.Ct. 360, 367-68, 30 L.Ed.2d 312 (1971)). This is the same kind of procedure that an employer must follow when he believes, for example, that an NLRB union certification is unlawful. See American Federation of Labor v. Labor Board, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940) (holding that certification orders are not directly reviewable in the courts of appeal). An extremely narrow exception is made to the nonreviewability of nonfinal NLRB decisions where the decision is manifestly “in excess of [the Board’s] delegated powers and contrary to a specific prohibition in the [NLRA].” Leedom v. Kyne, 358 U.S. 184, 188, 79 S.Ct. 180, 183, 3 L.Ed.2d 210 (1958). Appellant, however, does not allege the type or magnitude of error that would warrant our making an exception in this case. See Dart v. United States, 848 F.2d 217, 222 (D.C.Cir.1988) (Leedom exception applies only where agency action is facially invalid); United States v. Feaster, 410 F.2d 1354, 1368 (5th Cir.1969) (Leedom exception applies only where Board’s determination “is infused with error which is of a summa or magna quality as contraposed to decisions which are simply cum error”) (reviewing National Mediation Board decision). Finally, appellant asks that the “Employer be ordered to pay sufficient damages to offset the wrongful assignment of work to the Laborers.” The matter before us, however, is simply properly vacated an arbitrators’ award that ordered the employer to “cease and desist” from giving the Laborers the work. We do not see how that invalid award, by itself, can provide a basis for the court to award damages. Cf. Pacific Maritime Ass’n, 773 F.2d at 1015; Sullivan Transfer, 650 F.2d at 677; Rockwell Int’l Corp., 619 F.2d at 585; Oil Workers Local 7-210 v. Union Tank Car Co., 475 F.2d 194, 197 (7th Cir.1973). For these reasons the judgment of the district court is Affirmed. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:

sc_casesource

158

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. CICHOS v. INDIANA. No. 45. Argued October 19, 1966. Decided November 14, 1966. John P. Price argued the cause for petitioner. With him on the brief were Cleon H. Foust and John B. McF addin. Douglas B. McFadden, Deputy Attorney General of Indiana, argued the cause for respondent, pro hac vice, by special leave of Court. With him on the brief was John J. Dillon, Attorney General. Mr. Justice White delivered the opinion of the Court. Following petitioner’s trial in the Circuit Court for Parke County, Indiana, under a two-count affidavit charging him with reckless homicide and involuntary manslaughter, the jury returned a verdict reciting only that he was guilty of reckless homicide. Petitioner was sentenced to one to five years in prison and was fined $500 plus court costs. He appealed, and the Supreme Court of Indiana granted a new trial. Petitioner was retried on both counts, and the second jury returned the same verdict as the first. He was again sentenced to one to five years in prison but was fined only $100 plus court costs. The Supreme Court of Indiana affirmed this reckless homicide conviction, rejecting petitioner’s contention that his retrial on the involuntary manslaughter count had subjected him to double jeopardy in violation of the Indiana and United States Constitutions. Asserting that the first jury’s silence with respect to the manslaughter charge amounted to an acquittal under Indiana law and that his retrial on that charge placed him twice in jeopardy, compare Green v. United States, 355 U. S. 184, petitioner, in his petition for certiorari which we granted, presented a single question: Is the Fifth Amendment’s prohibition against placing an accused in double jeopardy applicable to state court prosecutions under the Due Process Clause of the Fourteenth Amendment? Because of the following considerations, which have more clearly emerged after full briefing and oral argument, we do not reach the issue posed by the petitioner and dismiss the writ as improvidently granted. 1. The Indiana statutes define involuntary manslaughter as the killing of “any human being ... involuntarily in the commission of some unlawful act.” Ind. Stat. Ann. § 10-3405 (1956). The statutory penalty is two to 21 years’ imprisonment. The crime of reckless homicide, created in 1939 as part of Indiana’s comprehensive trafile code, is committed by anyone “who drives a vehicle with reckless disregard for the safety of others and thereby causes the death of another person.” Ind. Stat. Ann. § 47-2001 (a) (1965). For this crime, a fine and a prison term of from one to five years are authorized. Recognizing the inherent overlap between these two crimes in cases of vehicular homicide, the Indiana Legislature has provided that “[A] final judgment of conviction of one [1] of them shall be a bar to a prosecution for the other; or if they are joined in separate counts of the same indictment or affidavit, and if there is a conviction for both offenses, a penalty shall be imposed for one [1] offense only.” Ind. Stat. Ann. § 47-2002 (1965). The Indiana courts have also recognized that reckless homicide “is a form of involuntary manslaughter,” Rogers v. State, 227 Ind. 709, 715, 88 N. E. 2d 755, 758. Proof of reckless homicide necessarily establishes an unlawful killing that amounts to involuntary manslaughter. Both crimes require proof of the same elements to sustain a conviction under Indiana law. See Rogers v. State, supra; State v. Beckman, 219 Ind. 176, 37 N. E. 2d 531. Thus, the effect of charging the two crimes in a single affidavit, as occurred in this case, was to give the jury the discretion to set the range of petitioner’s sentence at two to 21 years by convicting him of involuntary manslaughter or at one to five years by convicting him of reckless homicide. As the Indiana Supreme Court in the case before us explained, “[t]he offenses here involved are statutorily treated more as one offense with different penalties rather than viewing reckless homicide as an included offense in involuntary manslaughter.” - Ind. -, -, 208 N. E. 2d 685, 688. 2. Petitioner does not assert that he should not have been tried again for reckless homicide. His only claim is that he should not have been tried again for involuntary manslaughter as well as reckless homicide because the jury’s silence at his first trial with respect to involuntary manslaughter was legally an acquittal on this charge. However, the Indiana Supreme Court squarely rejected this interpretation of the first jury’s verdict. The court distinguished a long line of Indiana cases which have held that a jury’s silence must be deemed an acquittal. Because of the identity of the elements of these two crimes, and because the Indiana Supreme Court knew of “the trial court practice of telling the jury to return a verdict on only one of the charges in view of the limitation on penalty,” id., at -, 208 N. E. 2d, at 687, the court concluded that “a verdict of guilty of reckless homicide does not logically exclude the possibility of such a verdict on the charge of involuntary manslaughter.” Id., at -, 208 N. E. 2d, at 688-689. Therefore, “[T]he logic of the principle which states silence is equal to an acquittal is perhaps made inappropriate to charges of these offenses, related to the same unlawful transaction .... Rather than treat the silence of the jury in the involuntary manslaughter count in this case as an acquittal, the better result would seem to be to hold that the reckless homicide verdict encompassed the elements of involuntary manslaughter, and that appellant was simply given the lesser penalty.” Id., at -, 208 N. E. 2d, at 687. In the light of the Indiana statutory scheme and the rulings of the Indiana Supreme Court in this case, we cannot accept petitioner’s assertions that the first jury acquitted him of the charge of involuntary manslaughter and that the second trial therefore placed him twice in jeopardy. Consequently, we do not reach or decide the question tendered by the petition for certiorari, and the writ is dismissed as improvidently granted. It is so ordered. While concurring in the Court’s opinion, Mr. Justice Blac adheres to his dissent in Bartkus v. Illinois, 359 U. S. 121, 150, to the effect that the Fourteenth Amendment makes the double jeopardy provision of the Fifth Amendment applicable to the States. “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U. S. Const., Amend. 5. “No person shall be put in jeopardy twice for the same offense.” Ind. Const., Art. I, § 14. Indiana adopted the common-law crime of involuntary manslaughter early in its history. The crime has traditionally been applied by the Indiana courts to cases of vehicular accidents resulting in death. E. g., Smith v. State, 186 Ind. 252, 115 N. E. 943 (auto accident); State v. Dorsey, 118 Ind. 167, 20 N. E. 777 (railroad accident). This doctrine developed in response to contentions that silence on any count, required the setting aside of the entire verdict under the common-law rule that a defendant has an absolute right to a jury verdict on all charges for which he is tried. See Weinzorpflin v. State, 7 Blackf. 186 (Ind. 1844). Since a reckless homicide conviction is a statutory bar to further prosecution for involuntary manslaughter, § 47-2002, supra, petitioner cannot be adversely affected by the jury’s silence with respect to the involuntary manslaughter count. The judge’s charge to the jury in the first trial is not a part of the record in this case. Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:

songer_weightev

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Appellee, v. Jonathan Lippman EDWARDS, Defendant, Appellant. No. 71-1112. United States Court of Appeals, First Circuit. Oct. 15, 1971. John G. S. Flym, Cambridge, Mass., for appellant. Robert B. Collings, Asst. U. S. Atty., with whom Herbert F. Travers, Jr., U. S. Atty., was on brief, for appellee. Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges. McENTEE, Circuit Judge. This is an appeal from a conviction under 50 U.S.C. App. § 462 for refusal to submit to induction into the armed forces. In view of our finding that the procedures followed by appellant’s local board deprived him of his opportunity for full administrative review, we hold the induction order invalid and reverse the conviction. Appellant first registered with his local board on June 10, 1968. He was classified II-A because of his enrollment at Wentworth Institute. On January 12, 1970, following his withdrawal from Wentworth, appellant was reclassified I-A, and on January 19 was informed of his new classification, his right to a personal appearance, and his right to appeal. On the same date he was ordered to report for a physical examination on February 12, 1970. Several days later appellant visited his local board and requested SSS Form No. 150, the “Special Form for Conscientious Objectors,” which he submitted on February 4. On the basis of this form, the local board reopened appellant’s classification at its February 10 meeting, but denied his request for 1-0 status. Notice of the board’s action was mailed to appellant, and on February 27 he requested a personal appearance. This was scheduled for March 9, at which time the board inquired into the nature of his beliefs and his sincerity. The board decided there was insufficient reason for a change in appellant’s classification, and on March 17 a notice of this decision and of his right to appeal to the State Appeal Board was sent to him. The local board at no time informed appellant of the reasons for its denial of his conscientious objector claim. Upon receiving the March 17 notice, SSS Form No. 217, appellant immediately filed an administrative appeal but submitted no optional statement under 32 CFR § 1626.12. The Appeal Board, examining only what was on file with the local board, rejected his claim and retained the I-A classification. Thereafter the local board ordered appellant to report for induction on June 12, 1970. He reported but refused to take the symbolic step forward. Appellant’s primary contention on appeal is that his local board, having been presented with a prima facie claim for 1-0 classification, had an obligation to state its reasons for rejecting that claim. This rule has been explicitly adopted by three circuit courts, United States v. Stetter, 445 F.2d 472 (5th Cir. 1971); United States v. Speicher, 439 F.2d 104 (3d Cir. 1971); United States v. Broyles, 423 F.2d 1299 (4th Cir. 1970), and implicitly by two others, Caverly v. United States, 429 F.2d 92 (8th Cir. 1970) and United States v. Haughton, 413 F.2d 736 (9th Cir. 1968) . The government contends that appellant presented no prima facie claim and that this court’s holding in United States v. Curry, 410 F.2d 1297 (1st Cir. 1969) is controlling. The threshold question is whether appellant’s SSS Form No. 150 constituted a prima facie claim for conscientious objector status under 50 U.S.C. App. § 456 as construed in Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970) and United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). The significance of a “prima facie” claim in this situation is that it requires the local board to reopen a registrant’s classification and allow him “a chance to be heard and an opportunity for an administrative appeal.” Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 1771, 261 L.Ed.2d 362 (1970). The relevant standard for determining a prima facie claim, as stated in Mulloy is met: “Where a registrant makes nonfriv-olous allegations of facts that have not been previously considered by his board, and that, if true, would be sufficient under regulation or statute to warrant granting the requested reclassification * * Id. at 416, 90 S.Ct. at 1771. Appellant’s brief responses to the questions posed in SSS Form No. 150 are set forth below in full: “I am fundamentally opposed to war and killing. I believe that man has the inherent intelligence and motivation to solve any problems with his fellow man. I believe that war is instigated by profiteers and militarists for their own greed and aggrandizment [sic]. These beliefs are based on my religious training and personal convictions. “I was brought up in the Jewish religion of my grandparents and parents, but the absence of real evidence of divine intervention in human affairs, and revelations of modern science have convinced our family that we are truly atheists; We do not believe in god, war, or killing. We believe human life is the result of an evolutionary process; that man has the ability to provide for himself without killing and can solve his problem without resort to barbaric warfare. “I hate the idea of war and my conscience will not allow me to do anything that contributes to military endeavors, whether directly or indirectly. “I have expressed my self on this subject many times among my friends around town and at school. In fact I feel compelled to do so because I believe that war is vicious and that military propaganda is a fraud. I can not remain silent when I see my friends being duped into useless war.” Applying the Mulloy standard to these allegations the appellant made out a pri-ma facie case for reclassification. He stated “mental” facts, clearly nonfrivo-lous and new to the board, which would warrant 1-0 classification under Welsh and Seeger. While the brevity and conclusiveness of appellant’s statements might be some evidence supporting a denial of the requested 1-0 classification, they do not detract from the prima facie nature of his claim. The same is true of the lateness of the claim. Cf. United States v. Stoppelman, 406 F.2d 127 (1st Cir.), cert, denied, 395 U.S. 981, 89 S.Ct. 2141, 23 L.Ed.2d 769 (1969). While Edwards was thus clearly entitled to a reopening under Mulloy by virtue of his prima facie claim, we must still address the question whether that claim further entitled him to a statement of reasons when the local board denied him the requested classification. Our decision in United States v. Curry, supra, does not control this case. The registrant in that case did not present a prima facie claim for 1-0 status because it was obvious from his SSS Form No. 150 that he did not oppose all wars. As we said in Curry: “In this case we cannot conceive of appellant submitting to the Appeal Board any further clarification of his views on his opposition to war which would have been helpful to him, without at the same time negating his previous explanations given to the local board and at trial.” Id. 410 F.2d at 1300. Here, however, appellant having established a prima facie claim, it is easy to conceive of supplementary, consistent material that could have been submitted at his personal appearance under 32 CFR § 1624.2. In addition, he could have submitted a statement on appeal indicating in what respect he believed the local board erred. The local board’s silence as to the basis for its rejection of appellant’s claim renders the opportunity to submit such a statement no more than a stab in the dark. The absence of stated reasons denies a meaningful chance to be heard and an opportunity for a full administrative review. Due to the narrow scope of judicial review available to a registrant, this administrative review is “indispensible to the fair operation of the Selective Service System.” Mulloy v. United States, supra 398 U.S. at 416, 90 S.Ct. at 1771. Under pre-1967 Selective Service procedures, appeal from a local board’s denial of a conscientious objector claim was followed by an FBI investigation and an advisory recommendation by the Department of Justice, with an opportunity for the registrant to reply to this recommendation. Holding that a registrant was entitled to a copy of the Department of Justice recommendation, the Supreme Court in Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955) said: “Just as the right to a hearing means the right to a meaningful hearing, United States v. Nugent [346 U. S. 1, 73 S.Ct. 991, 97 L.Ed. 1417], supra; Simmons v. United States [348 U.S. 397, 99 L.Ed. 453], supra, so the right to file a statement before the Appeal Board includes the right to file a meaningful statement, one based on all the facts in the file and made with awareness of the recommendations and arguments to be countered.” Id. at 415, 75 S.Ct. at 413. Similarly, a meaningful statement under post-1967 procedures (32 CFR § 1626.12) requires that a registrant be apprised of the reasons why the local board denied his claim. United States v. Speicher, supra; United States v. Stetter, supra. The Court in Gonzales, supra, noted that its holding did not necessitate a full-blown trial for each appealing registrant. The only burden imposed was the mailing of a copy of the Department of Justice recommendation to the registrant and allowing for a written reply. The burden imposed by the rule adopted herein is neither difficult nor substantial. The board’s statement need not be long or detailed, nor need it set out precisely what a registrant must do in a personal appearance or appeal to bolster his claim. But the registrant must be informed of the reasons his claim was refused — whether and why his beliefs have been found to be insincere or not of such content as to entitle him to classification as a conscientious objector or to have been asserted too late. Because of the local board’s failure to inform the appellant why his claim was rejected, appellant’s I-A classification and consequent order to report were invalid. In view of our decision, we do not reach the other issues raised by the appellant. Reversed. . Speicher specifically reserved the question of whether and when action by the Appeal Board might cure n local board’s failure to state reasons. . In addition, two district courts within this circuit have recognized the rule. United States v. Anderson, 318 F.Supp. 1066 (D.N.H.1970) ; United States v. Prince, 310 F.Supp. 1161 (D.Me.1970). While the Second Circuit does not require disclosure of reasons prior to tbe administrative appeal, it has held that such disclosure is required prior to imposition of criminal sanctions. United States v. Lenhard, 437 F.2d 936 (2d Cir. 1970). . Without stating the standard relied upon, the district judge found that no prima facie claim for 1-0 classification had been established. We disagree with that finding. . For example, at the request of the district judge, appellant submitted thirty-one letters attesting to his beliefs and his sincerity. . Although no “new evidence” may be presented to the Appeal Board, under 32 CFR § 1626.12 a registrant “may attach to his appeal a statement specifying the matters in which he be-Heves the local board erred, may direct attention to any information in the registrant’s file which he believes the local board has failed to consider or to give sufficient weight, and may set out in full any information which was offered to the local board and which the local board failed or refused to include in the registrant’s file.” . The right to consult with a government appeal agent prior to an administrative apxxeal is an inadequate substitute for disclosure of reasons by the local board. The appeal agent, as noted in SSS Form No. 217, is available for advice on procedural matters and is not himself apprised of the local board’s reasons. Unable to make more than an educated guess as to the board’s reasoning, his advice to the registrant on the substance of his personal appearance or appeal will be of little assistance in ensuring a “full administrative review.” . We therefore reject the decision and reasoning of Gruca v. Secretary of Army, 436 F.2d 239 (D.C.Cir.), cert, denied, 401 U.S. 978, 91 S.Ct. 1207, 281 L.Ed.2d 328 (1971). Gruea. represents the minority view on this issue. Although “distributed by the Board’s failure to articulate in some detail the reasons for its decision,” the court refused to impose a burden which it believed “an ordinary, conscientious draft board would be unable to carry.” Id. at 244. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

sc_authoritydecision

D

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. FEIN v. SELECTIVE SERVICE SYSTEM LOCAL BOARD NO. 7 OF YONKERS, NEW YORK, et al. No. 70-58. Argued October 12, 1971 Decided March 21, 1972 BlackmüN, J., delivered the opinion of the Court, in which Burger, C. J., and BrenNAN and White, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 381. Marshall, J., filed a dissenting opinion, in which Stewart, J.,, joined, post, p. 387. Powell and RehNQUist, JJ., took no part in the consideration or decision of the case. Michael B. Standard argued the cause for petitioner. With him on the briefs was David Rosenberg. Solicitor General Griswold argued the cause for respondents. With him on the brief were Assistant Attorney General Gray, Morton Hollander, and Robert E. Kopp. Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging reversal. Me. Justice Blackmun delivered the opinion of the Court. Petitioner Oliver T. Fein is a doctor of medicine. In February 1969 he filed this pre-induction suit in the United States District Court for the Southern District of New York. Jurisdiction was asserted under the federal-question statute, 28 U. S. C. § 1331, under the civil rights statute, 28 U. S. C. § 1343, and under the federal-officer statute, 28 U. S. C. § 1361. Fein challenged, on due process grounds, the constitutionality of his Selective Service appeal procedures and sought declaratory and injunctive relief that would prevent his induction into military service. The defendants are Fein’s local board at Yonkers, New York, the Appeal Board for the Southern District, the State Selective Service Director, and the National Appeal Board. In an unreported memorandum decision, the District Court dismissed the complaint for want of jurisdiction. A divided panel of the Second Circuit affirmed. 430 F. 2d 376 (1970). Certiorari was granted, 401 U. S. 953 (1971), so that this Court might consider the important question whether § 10 (b) (3) of the Military Selective Service Act of 1967, 50 U. S. C. App. § 460 (b) (3), permits this pre-induction challenge to Selective Service appeal procedures. I Fein, born May 5, 1940, registered with his Yonkers local board at age 18. He was assigned a II-S student deferment during his undergraduate years at Swarth-more College and, subsequently, during the period of his attendance at Case-Western Reserve University School of Medicine. Upon graduation from medical school, Fein was assigned a II-A occupational deferment because of his internship at Cleveland Metropolitan General Hospital. In September 1967, while still an intern, Fein wrote his local board “to declare myself a conscientious objector to war and the institution which propagates war, the military.” He requested and received SSS Form 150 for conscientious objectors. He promptly completed and returned the form to the local board. In the form Fein stated: He believes in a Supreme Being. The beliefs from which his conscientious objection springs include the concepts that “human beings are primarily 'good,’ ” that this goodness “can only be realized, if human beings are allowed to fulfill their potential,” and that “all human beings are fundamentally equal, in terms of their value as human beings.” War violates “this essential being in all men . . . .” It “fosters irresponsibility for inhuman and cruel acts.” It “demands a style of fife, which is violent and hierarchical. It curbs and extinguishes rather than expands man’s potential.” The “substance of my beliefs stems from this common foundation of all religions. Thus my beliefs are not merely a personal moral code, but are ideals which emanate from centuries of religious tradition.” He attributes the shaping of his beliefs to four principal sources: his parents, the church he formerly belonged to (a Lutheran body), the civil rights movement, and medicine. He believes “in the power and values of moral and ethical force,” but rejects “violent force” except perhaps in defense of self or of a loved one. His ideals were not articulated by age 18, but he began to formulate them at Swarthmore. Then followed a trip to the South; his break with his church ; a summer in Germany where he learned of “biased American journalism about Cuba”; his helping organize a trip by students to Cuba; his interest in SNCC; his work in the slums of San Francisco; his settling in Cleveland’s “Negro ghetto” during his first year at medical school; his then “full commitment to non-violence”; his contact with Students for a Democratic Society, which provided “a framework for working out my ideals about justice and equality”; and his “commitment to cooperative living and the poor community [which] stands as a mature expression of my beliefs.” Upon receiving Fein’s Form 150 and letters supportive of his claim, the local board invited him to appear personally before it. He did so on November 15, 1967. After the interview the board denied him a 1-0 classification “at this time.” Inasmuch as Fein then held his II-A classification, this action by the board was consistent with Selective Service Regulation 32 CFR § 1623.2 providing that a registrant be placed in the lowest class for which he is eligible. In February 1968, however, Fein was reclassified I-A. He immediately asked for another personal appearance before the board. The request was granted and he appeared on May 27. The board then classified him as 1-0 and thus gave him his desired conscientious objector classification. On June 4 the State Director, pursuant to 32 CFR § 1626.1, wrote the appeal board requesting an appeal and stating, “It is our opinion that the registrant would not qualify for a. 1-0 classification as a conscientious objector.” Notice of this was given Dr. Fein by mail. Fein then wrote seeking “a statement indicating the basis for the State Director’s appeal” and an opportunity to reply. No explanation was forthcoming. The local board forwarded the file to the appeal board. Accompanying the file was a so-called “brief.” This, as petitioner has conceded, was merely a summary of the file prepared by a lay employee of the board. The appeal board, by a unanimous 4-0 vote on June 20, classified Dr. Fein I-A and thus rejected his claim to conscientious objector status. The board stated no reasons for its decision. Fein was notified of his reclassification. Under 32 CFR § 1627.3 a registrant was not entitled to take an appeal to the presidential, or national, appeal board from an adverse classification by the state appeal board made by a unanimous vote. Fein was in this position. Accordingly, he wrote the National Director of Selective Service in July and asked that the Director appeal on his behalf under 32 CFR § 1627.1 (a). Fein’s letter to the Director was detailed. It emphasized his above-stated beliefs and the way of life to which those beliefs had guided him. “It should be clear, that I am willing to serve my country, but only in activities consistent with my conscience.” Fein outlined the administrative proceedings and listed five claimed inequities: (1) the appeal board’s rejection, upon the appeal by the State Director, of the local board’s classification; (2) the failure of the Director to state the basis for his challenge; (3) the absence of an opportunity to submit supplemental information before the file was forwarded; (4) the absence of an opportunity to rebut the State Director’s decision to take an appeal; and (5) the absence of an opportunity for a personal appearance before the appeal board. On July 31 Fein was ordered to report for induction September 6. The National Director, however, complied with Fein’s request and noted an appeal. Fein’s outstanding induction order was canceled. He again asked the State Director for a statement of reasons. He was now advised that in the State Director’s opinion he did not qualify for a Class 1-0 deferment and that the decision to appeal “was based upon the information contained in [his] selective service file.” On November 26, 1968, the national board, by a vote of 3-0, classified Dr. Fein I-A. No reason for this action was stated. No new order that Fein report for induction has been issued. Fein then instituted this suit. The complaint alleged that the statute and regulations governing Fein’s classification and appeal violated the Due Process Clause of the Fifth Amendment in that they did not provide for a statement of reasons to the registrant for the State Director’s decision to appeal, or for the appeal board’s subsequent decision denying Fein a 1-0 classification. It also alleged that the defendants acted unconstitutionally by failing to provide Fein with the statements of reasons, by failing to permit him to submit additional material for consideration by the appeal boards, and by refusing him an opportunity to rebut the State Director’s decision to appeal. The District Court did not reach the merits of the constitutional claims. While expressing concern about Fein’s ability to establish jurisdiction, the court assumed, arguendo, that he had done so, but then concluded that the suit was barred by § 10 (b)(3). The Second Circuit affirmed, 430 F. 2d, at 377-380, relying, as did the District Court, upon Oestereich v. Selective Service Board, 393 U. S. 233 (1968); Clark v. Gabriel, 393 U. S. 256 (1968); and Boyd v. Clark, 287 F. Supp. 561 (SDNY 1968), aff’d, 393 U. S. 316 (1969). One judge, in separate concurrence, 430 F. 2d, at 380, also thought that Fein had failed to establish the jurisdictional amount required under 28 U. S. C. § 1331. The third judge, citing the same cases as did the majority, dissented on the statutory issue; on the merits he would have ruled in Fein’s favor. 430 F. 2d, at 380-388. II The case pivots, of course, upon the meaning and reach of § 10 (b)(3), and this Court’s decisions in Oestereich, Gabriel, and Boyd, all supra, and in Breen v. Selective Service Board, 396 U. S. 460 (1970). Section 10 (b) (3) states flatly that a classification decision of the local board “shall be final, except where an appeal is authorized . . .” and that the classification decision on appeal also “shall be final. . . .” It further provides, “No judicial review shall be made of the classification or processing of any registrant ... except as a defense to a criminal prosecution . . . after the registrant has responded either affirmatively or negatively to an order to report for induction . . . .” Even then, the review “shall go to the question of the jurisdiction . . . only when there is no basis in fact for the classification The finality language appeared in conscription statutes prior to the 1967 Act. See Selective Draft Act of May 18, 1917, §4, 40 Stat. 80; Selective Training and Service Act of 1940, § 10 (a)(2), 54 Stat. 893; and Selective Service Act of 1948, §10 (b)(3), 62 Stat. 619. The Court construed this finality language, however, as indicating a congressional intent to restrict only the scope of judicial review and not to deprive the registrant of all access to the courts. See, for example, Estep v. United States, 327 U. S. 114 (1946), and McKart v. United States, 395 U. S. 185 (1969). But judicial relief was confined to the “no basis in fact” situation. Estep, supra, at 122-123; McKart, supra, at 196. The “except” clause and the “no basis in fact” language came into § 10 (b) (3) with the- 1967 statute by way of prompt congressional reaction provoked by the Second Circuit’s decision in Wolff v. Selective Service Local Bd., 372 F. 2d 817 (1967). See H. R. Rep. No. 267, 90th Cong., 1st Sess., 30-31; 113 Cong. Rec. 15426. Section 10 (b)(3), as so amended, was promptly challenged. In Oestereich the Court refrained from striking down the statute on constitutional grounds. It held, however, that pre-induction judicial review was available to that petitioner who, as a divinity student, claimed his local board had wrongfully denied him a statutory exemption from military service. To rule otherwise “is to construe the Act with unnecessary harshness.” And, “No one, we believe, suggests that § 10 (b) (3) can sustain a literal reading.” This construction, it was said, leaves the section “unimpaired in the normal operations of the Act.” 393 U. S., at 238. See Gutknecht v. United States, 396 U. S. 295, 303 (1970), where reference was made to the “unusual circumstances” of Oestereich. In the companion Gabriel case, on the other hand, the registrant was asserting a conscientious objector claim. The Court said: “Oestereich, as a divinity student, was by statute unconditionally entitled to exemption. Here, by contrast, there is no doubt of the Board’s statutory authority to take action which appellee challenges, and that action inescapably involves a determination of fact and an exercise of judgment. . . . To allow pre-induction judicial review of such determinations would be to permit precisely the kind of ‘litigious interruptions of procedures to provide necessary military manpower' (113 Cong. Rec. 15426 (report by Senator Russell on Conference Committee action)) which Congress sought to prevent when it enacted § 10 (b)(3).” 393 U. S., at 258-259. The constitutionality of the statute again was upheld. Id., at 259. Mr. Justice Douglas, separately concurring, noted hypothetical fact situations as to which he might take a different view and then observed: “But in my view it takes the extreme case where the Board can be said to flout the law, as it did in Oestereich v. Selective Service Bd., [393 U. S. 233], to warrant pre-induction review of its actions.” 393 U. S., at 260. Oestereich was complemented by Breen a year later with respect to a registrant statutorily entitled to a deferment rather than to an exemption. See also Kolden v. Selective Service Board, 397 U. S. 47 (1970). Finally, pre-induction review was denied under § 10 (b)(3) in Boyd v. Clark, 287 F. Supp. 561 (SDNY 1968), a decision affirmed here, 393 U. S. 316 (1969), with only a single reference to Gabriel, decided just four weeks before. In Boyd, four registrants, each classified I-A, challenged student deferment on the ground that it discriminated against those financially unable to attend college. They did not otherwise contest their own I-A classifications. Thus Oestereich, Gabriel, Breen, and Boyd together establish the principles (a) that § 10 (b) (3) does not foreclose pre-induction judicial review in that rather rare instance where administrative action, based on reasons unrelated to the merits of the claim to exemption or deferment, deprives the registrant of the classification to which, otherwise and concededly, he is entitled by statute, and (b) that § 10 (b) (3) does foreclose pre-induction judicial review in the more common situation where the board, authoritatively, has used its discretion and judgment in determining facts and in arriving at a classification for the registrant. In the latter case the registrant’s judicial review is confined — and constitutionally so — to the situations where he asserts his defense in a criminal prosecution or where, after induction, he seeks a writ of habeas corpus. By these cases the Court accommodated constitutional commands with the several provisions of the Military Selective Service Act and the expressed congressional intent to prevent litigious interruption of the Selective Service process. Ill These principles do not automatically decide Fein’s case. The doctor, unlike Oestereich and unlike Breen, cannot and does not claim a statutory exemption or a statutory deferment on the basis of objectively established and conceded status. On the other hand, while Gabriel focuses on the administrative and discretionary process, it does not necessarily foreclose Fein’s claim. This is so because Fein challenges the constitutionality of the very administrative procedures by which, he claims, the presentation of his case was adversely affected. This was the aspect of the Oestereich and Breen decisions that concerned Mr. Justice Harlan. 393 U. S., at 239; 396 U. S., at 468-469. He would have allowed pre-induction judicial review of a procedural challenge on constitutional grounds if it presented no “opportunity for protracted delay” in the system’s operations, and if the issue was beyond the competence of the board to hear and determine. This view, however, commanded the vote of no other member of the Court. We again conclude that the line drawn by the Court between Oestereich and Breen, on the one hand, and Gabriel and, inferentially, Boyd, on the other, is the appropriate place at which, in the face of the bar of § 10 (b)(3), to distinguish between availability and unavailability of pre-induction review. We therefore adhere to the principles established by those cases. We further conclude that, as measured against the facts of Fein’s case, it is Gabriel, and not Oestereich and Breen, that is controlling. Unlike the registrants in Oestereich and Breen, Fein’s claimed status is not one that was factually conceded and thus was assured by the statute upon objective criteria. His administrative classification action was, in contrast, a product of the “process” and the “system of classification,” as the petitioner stressed at oral argument. It turned “on the weight and credibility of the testimony,” as Mr. Justice Douglas noted in his concurrence in Gabriel, 393 U. S., at 259. And it was “dependent upon an act of judgment by the Board.” Gabriel, 393 U. S., at 258. The case strikes us, as did Gabriel, as representative of a category that, if allowed pre-induction review, would tend to promote the “litigious interruptions of procedures to provide necessary military manpower” that Congress intended to prevent. 113 Cong. Rec. 15426. The conscientious objector claim is one ideally fit for administrative determination. We are not persuaded, as has been suggested, that the local board’s grant of the 1-0 classification equates with the conceded exemption and deferment involved in Oestereich and Breen. Objective certainty of status is lacking; in addition, the respective rulings of the two appeal boards were themselves based on an evaluation of the same file and yet were opposite to that of the local board. It is true that in Oestereick and Breen a result favorable to the registrant was also reversed, but there the change came about only by the board’s consideration of extraneous circumstances apart from the merits of the underlying claims. Finally, we find no merit in the petitioner’s argument, apparently asserted for the first time in this Court, that a local board’s determination, on a conscientious objector claim, favorable to the registrant is not amenable to the appeal procedures prescribed by the Act. Section 10 (b) (3), by its terms, makes a board’s decision final subject to appeal and we see no confinement of that right of appeal to the registrant alone so as to nullify the regulations’ express grant of appellate power to the State Director as well as to the registrant. The statute, furthermore, is specific as to the President’s right to review. The conclusion we have reached makes it unnecessary to consider in any detail the propositions, urged by the respondents, that the petitioner has not demonstrated the presence of the jurisdictional amount required under 28 U. S. C. § 1331, and that his arguments are premature because he is presently not the subject of an outstanding induction order. IV All this does not mean, however, that this decision assures Dr. Fein’s immediate induction into military service. Events since the inception and trial of the case indicate otherwise: A. The 1971 Statute. By Pub. L. 92-129, § 101 (a) (36), 85 Stat. 353, approved September 28, 1971, the following new section, 50 U. S. C. App. § 471a (1970 ed. Supp. I), was added to the 1967 Act, now renamed the Military Selective Service Act: “Procedural Rights “Sec. 22. (a) It is hereby declared to be the purpose of this section to guarantee to each registrant asserting a claim before a local or appeal board, a fair hearing consistent with the informal and expeditious processing which is required by selective service cases. “(b) Pursuant to such rules and regulations as the President may prescribe— “(1) Each registrant shall be afforded the opportunity to appear in person before the local or any appeal board of the Selective Service System to testify and present evidence regarding his status. “(4) In the event of a decision adverse to the claim of a registrant, the local or appeal board making such decision shall, upon request, furnish to such registrant a brief written statement of the reasons for its decision.” A registrant thus is now statutorily entitled to a personal appearance before a local or appeal board and, on request, to a statement of reasons for any decision of the board adverse to him. This 1971 addition to the statute does not, by its terms, purport to be retroactive. B. The Emerging Regulations. In implementation of the new statute, the administrative regulations have been undergoing change. Some amendments were promulgated effective December 10, 1971. 36 Fed. Reg. 2337T-23385. Others were promulgated effective March 11, 1972. 37 Fed. Reg. 5120-5127. From these it appears that all, or nearly all, the procedural features about which Dr. Fein complains in the present case have been changed administratively. Specifically: (1) When an appeal is taken by the State Director “he shall place in the registrant’s file a written statement of his reasons for taking such appeal.” The local board shall notify the registrant in writing of the action and the reasons therefor, and advise him that the registrant may request a personal appearance before the appeal board. §§ 1626.3 (a) and (b). (2) At such personal appearance the registrant may present evidence, discuss his classification, point out the class or classes in which he thinks he should have been placed, and may direct attention to any information in his file that he believes the local board has overlooked or to which it has given insufficient weight. He may present such further information as he believes will assist the board. The registrant, however, may not be represented before an appeal board by anyone acting as attorney and he shall not be entitled to present witnesses. §§ 1624.4 (e) and (d). (3) If the appeal board classifies the registrant in a class other than the one he requested, it shall record its reasons therefor in his file. The local board shall inform the registrant of such reasons in writing at the time it mails his notice of classification. § 1626.4 (i). (4) On the director’s appeal to the national board the registrant may request an appearance. § 1627.3 (d). At that appearance the registrant may present evidence, other than witnesses, bearing on his classification. There, too, he may discuss his classification, point out the class or classes in which he thinks he should have been placed, and direct attention to any information in his file that he believes the local board overlooked or to which it has given insufficient weight. He may also present such further information as he believes will assist the national board in determining his proper classification. §§ 1627.4 (c) and (e). (5) If the national board classifies the registrant in a class other than the one he requested it shall record its reasons therefor in his file and on request by the registrant it shall furnish him a brief statement of the reasons for its decision. § 1627.4 (h). Thus, under present procedure effective in part since December 10, 1971, and in part since March 11, 1972, complaints about one’s inability to appear before appeal boards, about not being given reasons for adverse classifications, and about inability to present additional material at the appellate stages are all alleviated and, indeed, eliminated. C. The Change in the Government’s Position. In their brief filed prior to the adoption of the 1971 Act, the respondents acknowledged the appearance of “a relatively recent line of authority” exemplified by United States v. Haughton, 413 F. 2d 736 (CA9 1969), to the effect that the failure of a local board to articulate in writing the reason for its denial of a conscientious objector classification is a fatal procedural flaw when the registrant has made a prima facie case for such status. Brief 52-53. The rationale is that some statement of reasons is necessary for “meaningful” review of the administrative decision when the registrant’s claim has met the statutory criteria or has placed him prima facie within the statutory exemption, and his veracity is the principal issue. The respondents appropriately noted, however, that these decisions were all so-called post-induction cases in the sense that they were appeals from convictions under § 12 (a), 50 U. S. C. App. §462 (a). The respondents accordingly took the position that this line of authority, however appropriate it might be for post-induction review, did not support or justify an exception to the bar of § 10 (b) (3) against pre-induction review of the processing or classifying of registrants. In a memorandum filed here since the 1971 Act in No. 70-251, Joseph v. United States, cert. granted, 404 U. S. 820 (1971), the Government has now taken the position that “[although this judicial rule [of Haughton and its progeny] finds little support in early precedent ... we do not think it appropriate to contend that it is erroneous.” The Government also notes that the requirement for an administrative statement of reasons “seems fully consistent with the new statutory . . . and regulatory . . . provisions on this point.” Memo 13, 14. While Joseph also is a conviction case and is not one on pre-induction review, its obvious significance for Fein is that if the doctor is ever again called for induction, the rule of Haughton will provide a defense for him unless and until the requirements of the new statute and regulations are fulfilled. Whether this necessitates a complete reprocessing of Fein’s case is a matter we leave in the first instance to the administrative authorities. The judgment of the Court of Appeals is therefore to be affirmed. We express no view upon the merits of Dr. Fein’s conscientious objector claim other than to observe the obvious, namely, that his claim is not frivolous. Affirmed. Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case. “The decisions of such local board shall be final, except where an appeal is authorized and is taken in accordance with such rules and regulations as the President may prescribe. . . . The decision of such appeal boards shall be final in cases before them on appeal unless modified or changed by the President. The President, upon appeal or upon his own motion, shall have power to determine all claims or questions with respect to inclusion for, or exemption or deferment from training and service under this title . . . and the determination of the President shall be final. No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution . . . after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant. . . .” 50 U. S. C. App. §460 (b)(3). Section 10 (b) (3) of the 1967 Act was amended by Pub. L. 92-129, §101 (a) (26), 85 Stat. 351, approved Sept. 28, 1971. The amendment, however, did not change that portion of § 10 (b) (3) quoted above. Tr. of Oral. Arg. 22. The provision is now 32 CFR § 1627.1 (b). S. Rep. No. 209, 90th Cong., 1st Sess., 10, contained the observation that a registrant may also challenge his classification by post-induction habeas corpus. See Witmer v. United States, 348 U. S. 375, 377 (1955). Tr. of Oral Arg. 13, 18. Id., at 16-18. See also United States v. Edwards, 450 F. 2d 49 (CA1 1971); United States v. Lenhard, 437 F. 2d 936 (CA2 1970); Scott v. Commanding Officer, 431 F. 2d 1132 (CA3 1970); United States v. Broyles, 423 F. 2d 1299 (CA4 1970); United States v. Stetter, 445 F. 2d 472 (CA5 1971); United States v. Washington, 392 F. 2d 37 (CA6 1968); United States v. Lemmens, 430 F. 2d 619 (CA7 1970); United States v. Cummins, 425 F. 2d 646 (CA8 1970); United States v. Pacheco, 433 F. 2d 914 (CA10 1970). See Gonzales v. United States, 348 U. S. 407, 415 (1955). Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:

sc_lcdispositiondirection

A

What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations CHAUNT v. UNITED STATES. No. 22. Argued October 17, 1960. Decided November 14, 1960. Joseph Forer argued the cause for petitioner. With him on the brief were David Rein and John W. Porter. Maurice A. Roberts argued the cause for the United States. On the briefs were Solicitor General Rankin, Assistant Attorney General Wilkey, Philip R. Monahan, Beatrice Rosenberg and Jerome M. Feit. Opinion of the Court by Mr. Justice Douglas, announced by Mr. Justice Harlan. Petitioner, a native of Hungary, was admitted to citizenship by a decree of the District Court in 1940. Respondent filed a complaint to revoke and set aside that order as authorized by § 340 (a) of the Immigration and Nationality Act of 1952, 66 Stat. 260, as amended, 68 Stat. 1232, 8 U. S. C. § 1451 (a), on the ground that it had been procured “by concealment of a material fact or by willful misrepresentation.” The complaint stated that petitioner had falsely denied membership in the Communist Party and that by virtue of that membership he lacked the requisite attachment to the Constitution, etc., and the intent to renounce foreign allegiance. It also alleged that petitioner had procured his naturalization by concealing and misrepresenting a record of arrests. The District Court cancelled petitioner’s naturalization, finding that he had concealed and misrepresented three matters — his arrests, his membership in the Communist Party, and his allegiance. The Court of Appeals affirmed, reaching only the question of the concealment of the arrests. 270 F. 2d 179. The case is here on a writ of certiorari. 362 U. S. 901. One question, on a form petitioner filled out in connection with his petition for naturalization, asked if he had ever been “arrested or charged with violation of any law of the United States or State or any city ordinance or traffic regulation” and if so to give full particulars. To this question petitioner answered “no.” There was evidence that when he was questioned under oath by an examiner he gave the same answer. There was also evidence that if his answer had been “yes,” the investigative unit of the Immigration Service would check with the authorities at the places where the arrests occurred “to ascertain . . . whether the full facts were stated.” The District Court found that from 10 to 11 years before petitioner was naturalized he had been arrested three times as follows: (1) On July 30, 1929, he was arrested for distributing handbills in New Haven, Connecticut, in violation of an ordinance. He pleaded not guilty and was discharged. (2) On December 21, 1929, he was arrested for violating the park regulations in New Haven, Connecticut, by making “an oration, harangue, or other public demonstration in New Haven Green, outside of the churches.” Petitioner pleaded not guilty. Disposition of the charge is not clear, the notation on the court record reading “Found J. S.” which respondent suggests may mean “Judgment Suspended” after a finding of guilt. (3) On March 11, 1930, he was again arrested in New Haven and this time charged with “General Breach of the Peace.” He was found guilty by the City Court and fined $25. He took an appeal and the records show “nolled April 7, 1930.” Acquisition of American citizenship is a solemn affair. Full and truthful response to all relevant questions required by the naturalization procedure is, of course, to be exacted, and temporizing with the truth must be vigorously discouraged. Failure to give frank, honest, and unequivocal answers to the court when one seeks naturalization is a serious matter. Complete replies are essential so that the qualifications of the applicant or his lack of them may be ascertained. Suppressed or concealed facts, if known, might in and of themselves justify denial of citizenship. Or disclosure of the true facts might have led to the discovery of other facts which would justify denial of citizenship. On the other hand, in view of the grave consequences to the citizen, naturalization decrees are not lightly to be set aside — the evidence must indeed be “clear, unequivocal, and convincing” and not leave “the issue ... in doubt.” Schneiderman v. United States, 320 U. S. 118, 125, 158; Baumgartner v. United States, 322 U. S. 665, 670. The issue in these cases is so important to the liberty of the citizen that the weight normally given concurrent findings of two lower courts does not preclude reconsideration here, for we deal with “judgments lying close to opinion regarding the whole nature of our Government and the duties and immunities of citizenship.” Baumgartner v. United States, supra, 671. And see Klapprott v. United States, 335 U. S. 601, 612 and (concurring opinion) 617. While disclosure of them was properly exacted, the arrests in these cases were not reflections on the character of the man seeking citizenship. The statute in force at the time of his naturalization required that “he has behaved as a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States” during the previous five years. These arrests were made some years prior to the critical five-year period. They did not, moreover, involve moral turpitude within the meaning of the law. Cf. Jordan v. De George, 341 U. S. 223. No fraudulent conduct was charged. They involved distributing handbills, making a speech, and a breach of the peace. In one instance he was discharged, in one instance the prosecution was “nolled,” and in the other (for making a speech in a park in violation of city regulations) he apparently received a suspended sentence. The totality of the circumstances surrounding the offenses charged makes them of extremely slight consequence. Had they involved moral turpitude or acts directed at the Government, had they involved conduct which even peripherally touched types of activity which might disqualify one from citizenship, a different case would be presented. On this record the nature of these arrests, the crimes charged, and the disposition of the cases do not bring them, inherently, even close to the requirement of “clear, unequivocal, and convincing” evidence that naturalization was illegally procured within the meaning of § 340 (a) of the Immigration and Nationality Act. It is argued, however, that disclosure of the arrests made in New Haven, Connecticut, in the years 1929 and 1930 would have led to a New Haven investigation at which leads to other evidence — more relevant and material than the arrests — might have been obtained. His residence in New Haven was from February 1929 to November 1930. Since that period was more than five years before his petition for naturalization, the name of his employer at that time was not required by the form prepared by the Service. It is now said, however, that if the arrests had been disclosed and investigated, the Service might well have discovered that petitioner in 1929 was “a district organizer” of the Communist Party in Connecticut. One witness in this denaturalization proceeding testified that such was the fact. An arrest, though by no means probative of any guilt or wrongdoing, is sufficiently significant as an episode in a man’s life that it may often be material at least to further enquiry. We do not minimize the importance of that disclosure. In this case, however, we are asked to base materiality on the tenuous line of investigation that might have led from the arrests to the alleged communistic affiliations, when as a matter of fact petitioner in this same application disclosed that he was an employee and member of the International Workers’ Order, which is said to be controlled by the Communist Party. In connection with petitioner’s denial of such affiliations, respondent argues that since it was testified that the IWO was an organization controlled and dominated by the Communist Party, it is reasonable to infer that petitioner had those affiliations at the time of the application. But by the same token it would seem that a much less tenuous and speculative nexus with the Communist Party, if it be such, was thereby disclosed and was available for further investigation if it had been deemed appropriate at the time. Cf. United States v. Anastasio, 226 F. 2d 912. It is said that IWO did not become tainted with Communist control until 1941. We read the record differently. If the Government’s case is made out, that taint extended back at least as far as 1939. Had that disclosure not been made in the application, failure to report the arrests would have had greater significance. It could then be forcefully argued that failure to disclose the arrests was part and parcel of a project to conceal a Communist Party affiliation. But on this record, the failure to report the three arrests occurring from 10 to 11 years previously is neutral. We do not speculate as to why they were not disclosed. We only conclude that, in the circumstances of this case, the Government has failed to show by “clear, unequivocal, and convincing” evidence either (1) that facts were suppressed which, if known, would have warranted denial of citizenship or (2) that their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship. There are issues in the case which we do not reach and which were not passed upon by the Court of Appeals. Accordingly the judgment will be reversed and the cause remanded to it so that the other questions raised in the appeal may be considered. It is so ordered. The section provides in relevant part: “It shall be the duty of the United States attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court specified in subsection (a) of section 310 of this title [§ 1421 of 8 U. S. C.] in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively Section 4 of the Naturalization Act of June 29, 1906, 34 Stat. 598, as amended, 45 Stat. 1513-1514. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspecifiable Answer:

sc_threejudgefdc

B

What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts. THREE AFFILIATED TRIBES OF THE FORT BERTHOLD RESERVATION v. WOLD ENGINEERING, P. C., et al. No. 82-629. Argued November 29, 1983 Decided May 29, 1984 Raymond Cross argued the cause for petitioner. With him on the briefs was John 0. Holm. Deputy Solicitor General Claiborne argued the cause for the United States as amicus curiae in support of petitioner. With him on the brief were Solicitor General Lee, Acting Assistant Attorney General Habicht, and Edwin S. Kneedler. Hugh McCutcheon argued the cause for respondents and filed a brief for respondent Wold Engineering, P. C. Briefs of amici curiae urging reversal were filed for the Standing Rock Sioux Tribe et al. by Reid Peyton Chambers; and for the Turtle Mountain Band of Chippewa Indians by Kim Jerome Gottschalk and Richard B. Collins. Justice Blackmun delivered the opinion of the Court. This litigation presents issues of state-court civil jurisdiction over a claim asserted by an Indian tribe. The case, as it comes to us, is somewhat unusual in a central respect: the Tribe seeks, rather than contests, state-court jurisdiction, and the non-Indian party is in opposition. Cf. Williams v. Lee, 358 U. S. 217 (1959). Chapter 27-19 of the North Dakota Century Code (1974) is entitled “Indian Civil Jurisdiction.” Section 27-19-01 of that Code provides that the jurisdiction of North Dakota courts shall extend “over all civil causes of action which arise on an Indian reservation upon acceptance by Indian citizens.” In this case, the Supreme Court of North Dakota interpreted Chapter 27-19 to disclaim state-court jurisdiction over a claim (against a non-Indian) by an Indian Tribe that had not accepted jurisdiction under the statute. The court determined that the North Dakota Legislature had disclaimed jurisdiction pursuant to the principal federal statute governing state jurisdiction over Indian country, namely, the Act of Aug. 15, 1953, 67 Stat. 588, as amended, 28 U. S. C. § 1360, commonly known as Pub. L. 280. The court further concluded that the jurisdictional disclaimer, inasmuch as it was authorized by Pub. L. 280, did not run afoul of the North Dakota or Federal Constitutions. Because the North Dakota Supreme Court’s interpretation of Chapter 27-19 and its accompanying constitutional analysis appear to us to rest on a possible misunderstanding of Pub. L. 280, we vacate the court’s judgment and remand the case to allow reconsideration of the jurisdictional questions in the light of what we feel is the proper meaning of the federal statute. A. Petitioner Three Affiliated Tribes of the Fort Berthold Reservation is a federally recognized Indian Tribe with its reservation in northwestern North Dakota. Act of Mar. 3, 1891, ch. 543, §23, 26 Stat. 1032. See City of New Town v. United States, 454 F. 2d 121 (CA8 1972). In 1974, petitioner employed respondent Wold Engineering, P. C. (hereafter respondent), a North Dakota corporation, to design and build the Four Bears Water System Project, a water-supply system located wholly within the reservation. The project was completed in 1977 but it did not perform to petitioner’s satisfaction. In 1980, petitioner sued respondent in a North Dakota state court for negligence and breach of contract. At the time the suit was filed, petitioner’s tribal court did not have jurisdiction over a claim by an Indian against a non-Indian in the absence of an agreement by the parties. Tribal Code, ch. II, § 1(a). The subject matter of petitioner’s complaint, however, clearly fell within the scope of the state trial court’s general jurisdiction. See N. D. Const., Art. VI, §8; N. D. Cent. Code § 27-05-06 (1974 and Supp. 1983). After counterclaiming for petitioner’s alleged failure to complete its payments on the water-supply system, respondent moved to dismiss petitioner’s complaint on the ground that the trial court lacked subject-matter jurisdiction over any claim arising in Indian country. B. At this point, in order to place respondent’s jurisdictional argument in perspective, it is desirable to review the somewhat erratic course of federal and state law governing North Dakota’s jurisdiction over the State’s Indian reservations. Long before North Dakota became a State, this Court had recognized the general principle that Indian territories were beyond the legislative and judicial jurisdiction of state governments. Worcester v. Georgia, 6 Pet. 515 (1832); see generally Williams v. Lee, 358 U. S., at 218-222. That principle was reflected in the federal statute that granted statehood to North Dakota. Like many other other States in the Midwest and West, North Dakota was required to “disclaim all right and title ... to all lands lying within [the State] owned or held by any Indian or Indian tribes” as a condition for admission to the Union. Enabling Act of Feb. 22, 1889, § 4, cl. 2, 25 Stat. 677. The Act further provided that all such Indian land shall “remain subject to the disposition of the United States, and . . . shall remain under the absolute jurisdiction and control of the Congress of the United States.” Ibid. North Dakota’s original Constitution contained, in identical terms, the required jurisdictional disclaimers. See N. D. Const., Art. XVI, §203, cl. 2 (1889). Federal restrictions on North Dakota’s jurisdiction over Indian country, however, were substantially eliminated in 1953 with the enactment of the aforementioned Pub. L. 280. See generally Washington v. Yakima Indian Nation, 439 U. S. 463, 471-474 (1979). Sections 2 and 4 of Pub. L. 280 gave five States full jurisdiction, with a stated minor exception as to each of two States, over civil and criminal actions involving Indians and arising in Indian country. 67 Stat. 588-589, codified, as amended, at 18 U. S. C. § 1162 and 28 U. S. C. §1360, respectively. Sections 6 and 7 gave all other States the option of assuming similar jurisdiction. Section 6 authorized States whose constitutions and statutes contained federally imposed jurisdictional restraints, like North Dakota’s, to amend their laws to assume jurisdiction. 67 Stat. 590, codified, as amended, at 25 U. S. C. §1324. Section 7 provided similar federal consent to any other State not having civil and criminal jurisdiction, but required such States to assume jurisdiction through “affirmative legislative action.” 67 Stat. 590. As originally enacted, Pub. L. 280 did not require States to obtain the consent of affected Indian tribes before assuming jurisdiction over them. Title IV of the Civil Rights Act of 1968 amended Pub. L. 280, however, to require that all subsequent assertions of jurisdiction be preceded by tribal consent. Pub. L. 90-284, §§401, 402, 406, 82 Stat. 78-80, codified at 25 U. S. C. §§ 1321, 1322, 1326. Even before North Dakota moved to amend its Constitution and assume full jurisdiction under Pub. L. 280, the North Dakota Supreme Court had taken an expansive view of the scope of state-court jurisdiction over Indians in Indian country. In 1957, the court held that the existing jurisdictional disclaimers in the Enabling Act and the State’s Constitution foreclosed civil jurisdiction over Indian country only in cases involving interests in Indian lands themselves. Vermill thorize its legislature to “provid[e] for the acceptance of such jurisdiction [over Indian country] as may be delegated to the State by Act of Congress.” N. D. Const., Art. XIII, §1, cl. 2. Finally, in 1963, the North Dakota Legislature enacted Chapter 27-19, the principal section of which provides: “In accordance with the provisions of Public Law 280 . . . and [the amended] North Dakota constitution, jurisdiction of the state of North Dakota shall be extended over all civil causes of action which arise on an Indian reservation upon acceptance by Indian citizens in a manner provided by this chapter. Upon acceptance the jurisdiction of the state shall be to the same extent that the state has jurisdiction over other civil causes of action, and those civil laws of this state that are of general application to private property shall have the same force and effect within such Indian reservation or Indian country as they have elsewhere within this state.” N. D. Cent. Code §27-19-01 (1974). On their face, both the 1958 amendment to the North Dakota Constitution and Chapter 27-19 appear to expand preexisting state jurisdiction over Indian country rather than to contract it. In In re Whiteshield, 124 N. W. 2d 694 (1963), however, the North Dakota Supreme Court reached the conclusion that Chapter 27-19 actually disclaimed all jurisdiction over claims arising in Indian country absent Indian consent. In subsequent decisions, that court adhered to its general view that without Indian consent “the State has no jurisdiction over any civil cause arising on an Indian reservation in this State.” White Eagle v. Dorgan, 209 N. W. 2d 621, 623 (1973). In each case in which the North Dakota Supreme Court declined to recognize jurisdiction, however, the defendant was an Indian; the court never had held squarely that an Indian could not maintain an action against a non-Indian in state court for a claim arising in Indian country. C. Respondent’s motion to dismiss rested on the restrictive jurisdictional principles of Whiteshield and its successors. Because the petitioner Tribe at no point has consented to state-court jurisdiction under Chapter 27-19 over the Fort Berthold Reservation, respondent argued that the trial court lacked jurisdiction over petitioner’s claim under Chapter 27-19 and the amended provisions of Pub. L. 280. Petitioner opposed respondent’s motion to dismiss on the ground, inter alia, that the tribal consent requirements of the Civil Rights Act of 1968 were not meant to apply to a suit brought by a tribal government like petitioner. The trial court rejected petitioner’s arguments and granted the motion to dismiss the suit for lack of jurisdiction, but did so without prejudice to a renewal of the action following compliance with the state and federal consent requirements. App. to Pet. for Cert. la. On appeal, the North Dakota Supreme Court affirmed. 321 N. W. 2d 510 (1982). Petitioner argued that the jurisdiction recognized in Vermillion had not been extinguished altogether and that the North Dakota courts possessed “residuary jurisdiction” over a claim by an Indian against a non-Indian following the enactment of Pub. L. 280 and the Civil Rights Act of 1968. The court rejected this argument, adhering instead to its conclusion in Nelson v. Dubois, 232 N. W. 2d 54 (1975), that any residuary jurisdiction was preempted by the tribal consent requirements contained in the Civil Rights Act of 1968. After reviewing the history of North Dakota’s jurisdiction over Indian country, the court reaffirmed its prior holdings, observing that “we have no jurisdiction over civil causes of action arising within the exterior boundaries of an Indian reservation, unless the Indian citizens of the reservation vote to accept jurisdiction.” 321 N. W. 2d, at 512. The court also rejected petitioner’s argument that to prohibit an Indian plaintiff from suing a non-Indian in state court for a claim arising on an Indian reservation would violate the Equal Protection Clause of the Fourteenth Amendment and deny petitioner equal access to the courts, in violation of the North Dakota Constitution. The court relied on Washington v. Yakima Indian Nation, 439 U. S. 463 (1979), in which this Court rejected an equal protection challenge to a state jurisdictional statute that relied on tribal classifications. In Yakima Indian Nation the Court held that the unique legal status of Indian tribes under federal law permitted the Federal Government to single out tribal Indians in ways that otherwise might be unconstitutional, and that the state jurisdictional statute at issue there was insulated from strict scrutiny under the Equal Protection Clause because it was enacted under the authority of Pub. L. 280. 439 U. S., at 499-502. The North Dakota Supreme Court concluded: “Likewise, the people of North Dakota and the legislature were acting under explicit authority granted by Congress in the exercise of its federal power over Indians when our Constitution was amended and Chapter 27-19 . . . was enacted.” 321 N. W. 2d, at 513. As a result, any discrimination against Indian litigants did not violate the State or Federal Constitutions. Ibid. Because of the complexity and importance of the issue posed by the North Dakota Supreme Court’s decision, we granted certiorari. 461 U. S. 904 (1983). I-H H-1 Respondent does not dispute that petitioner s claim comes within the scope of the civil jurisdiction recognized by the North Dakota court in its Vermillion ruling in 1957. Respondent advances two arguments in support of the North Dakota Supreme Court’s conclusion that state-court jurisdiction no longer extends so far. The first is that federal law precludes the state courts from asserting jurisdiction over petitioner’s claim. The second is that, regardless of federal law, the North Dakota Supreme Court has held that the trial court lacked jurisdiction as a matter of state law. We address these arguments in turn. A Although this Court has departed from the rigid demarcation of state and tribal authority laid down in 1832 in Worcester v. Georgia, 6 Pet. 515, the assertion of state authority over tribal reservations remains subject to “two independent but related barriers.” White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 142 (1980). First, a particular exercise of state authority may be foreclosed because it would undermine “ ‘the right of reservation Indians to make their own laws and be ruled by them.’” Ibid., quoting Williams v. Lee, 358 U. S., at 220. Second, state authority may be pre-empted by incompatible federal law. White Mountain, 448 U. S., at 142. Accord, New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 334, and n. 16 (1983); Ramah Navajo School Board, Inc. v. Bureau of Revenue, 458 U. S. 832, 837-838 (1982); McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 179 (1973). We do not believe that either of these barriers precludes North Dakota courts from entertaining a civil action by an Indian tribe against a non-Indian for a claim arising on an Indian reservation. Despite respondent’s arguments, we fail to see how the exercise of state-court jurisdiction in this case would interfere with the right of tribal Indians to govern themselves under their own laws. To be sure, the full breadth of state-court jurisdiction recognized in Vermillion cannot be squared with principles of tribal autonomy; to the extent that Vermillion permitted North Dakota state courts to exercise jurisdiction over claims by non-Indians against Indians or over claims between Indians, it intruded impermissibly on tribal self-governance. See Fisher v. District Court, 424 U. S. 382 (1976); Williams v. Lee, supra. This Court, however, repeatedly has approved the exercise of jurisdiction by state courts over claims by Indians against non-Indians, even when those claims arose in Indian country. See McClanahan v. Arizona State Tax Comm’n, 411 U. S., at 173 (dictum); Poafpybitty v. Skelly Oil Co., 390 U. S. 365 (1968); Williams v. Lee, 358 U. S., at 219 (dictum); United States v. Can-delaria, 271 U. S. 432, 444 (1926); Felix v. Patrick, 145 U. S. 317, 332 (1892); Fellows v. Blacksmith, 19 How. 366 (1857). The interests implicated in such cases are very different from those present in Williams v. Lee, where a non-Indian sued an Indian in state court for debts incurred in Indian country, or in Fisher v. District Court, where this Court held that a tribal court had exclusive jurisdiction over an adoption proceeding in which all parties were tribal Indians residing on a reservation. As a general matter, tribal self-government is not impeded when a State allows an Indian to enter its courts on equal terms with other persons to seek relief against a non-Indian concerning a claim arising in Indian country. The exercise of state jurisdiction is particularly compatible with tribal autonomy when, as here, the suit is brought by the tribe itself and the tribal court lacked jurisdiction over the claim at the time the suit was instituted. Neither are we persuaded that the exercise of state jurisdiction here would be inconsistent with the federal and tribal interests reflected in North Dakota’s Enabling Act or in Pub. L. 280. As for the disclaimer provisions of the Enabling Act, the presence or absence of specific jurisdictional disclaimers rarely has had controlling significance in this Court’s past decisions about state jurisdiction over Indian affairs or activities on Indian lands. Arizona v. San Carlos Apache Tribe, 463 U. S. 545, 562 (1983); see F. Cohen, Handbook of Federal Indian Law 268 (1982 ed.). In this case, the sparse legislative record suggests only that the Enabling Act’s phrase “absolute [congressional] jurisdiction and control” was meant to foreclose state regulation and taxation of Indians and their lands, not that Indians were to be prohibited from entering state courts to pursue judicial remedies against non-Indians. See H. R. Rep. No. 1025, 50th Cong., 1st Sess., 8-9, 24 (1888). To the extent that the disclaimer language of the Enabling Act may be regarded as ambiguous, moreover, it is a settled principle of statutory construction that statutes passed for the benefit of dependent Indian tribes are to be liberally construed, with doubtful expressions being resolved in favor of the Indians. See, e. g., Bryan v. Itasca County, 426 U. S. 373, 392 (1976); Alaska Pacific Fisheries v. United States, 248 U. S. 78, 89 (1918). It would be contrary to this principle to resolve any ambiguity in the language of the Enabling Act in favor of a construction under which North Dakota could not provide a judicial forum for an Indian to obtain relief against a non-Indian. We also cannot subscribe to the view that Pub. L. 280 either required North Dakota to disclaim the basic jurisdiction recognized in Vermillion or authorized it to do so. This Court previously has recognized that Pub. L. 280 was intended to facilitate rather than to impede the transfer of jurisdictional authority to the States. Washington v. Yakima Indian Nation, 439 U. S., at 490; see also Bryan v. Itasca County, 426 U. S., at 383-390. Nothing in the language or legislative history of Pub. L. 280 indicates that it was meant to divest States of pre-existing and otherwise lawfully assumed jurisdiction. Section 6 of the federal statute authorized a State whose enabling Act and constitution contained jurisdictional disclaimers “to remove any legal impediment to the assumption of civil and criminal jurisdiction” (emphasis added). 67 Stat. 590, codified, as amended, at 25 U. S. C. § 1324. Similarly, § 7 gave congressional consent to the assumption of jurisdiction by any other State “not having jurisdiction.” 67 Stat. 590. By their terms, therefore, both §6 and § 7 were designed to eliminate obstacles to the assumption of jurisdiction rather than to require pre-existing jurisdiction to be disclaimed. Although the Civil Rights Act of 1968 amended Pub. L. 280 by adding tribal consent requirements, those requirements were not made retroactive; the 1968 amendments therefore did not displace jurisdiction previously assumed under Pub. L. 280, much less jurisdiction assumed prior to and apart from Pub. L. 280. Similarly, while Pub. L. 280 authorized States to assume partial rather than full civil jurisdiction, see Washington v. Yakima Indian Nation, 439 U. S., at 493-499, nothing in Pub. L. 280 purports to authorize States to disclaim pre-existing jurisdiction. Indeed, the Civil Rights Act of 1968 granted States the authority to retrocede jurisdiction acquired under Pub. L. 280 precisely because Pub. L. 280 itself did not authorize such jurisdictional disclaimers. In sum, then, no federal law or policy required the North Dakota courts to forgo the jurisdiction recognized in Vermillion in this case. If the North Dakota Supreme Court’s jurisdictional ruling is to stand, it must be shown to rest on state rather than federal law. B This Court concededly has no authority to revise the North Dakota Supreme Court’s interpretation of state jurisdictional law. Only last Term, in Arizona v. San Carlos Apache Tribe, supra, we noted that “to the extent that a claimed bar to state jurisdiction ... is premised on the respective State Constitutions, that is a question of state law over which the state courts have binding authority.” 463 U. S., at 561. That principle is equally applicable, of course, with respect to jurisdictional bars grounded in state statutes. If the North Dakota Supreme Court’s decision that the trial court lacked jurisdiction in this case rested solely on state law, the only remaining issue before this Court would be petitioner’s argument that the jurisdictional disclaimer here violates petitioner’s federal constitutional rights. It is equally well established, however, that this Court retains a role when a state court’s interpretation of state law has been influenced by an accompanying interpretation of federal law. In some instances, a state court may construe state law narrowly to avoid a perceived conflict with federal statutory or constitutional requirements. See, e. g., United Air Lines, Inc. v. Mahin, 410 U. S. 623, 630-632 (1973); State Tax Comm’n v. Van Cott, 306 U. S. 511, 513-515 (1939); Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 120 (1924); see also San Diego Building Trades Council v. Garmon, 353 U. S. 26 (1957). In others, in contrast, the state court may construe state law broadly in the belief that federal law poses no barrier to the exercise of state authority. See, e. g., Standard Oil Co. v. Johnson, 316 U. S. 481 (1942). In both categories of cases, this Court has reviewed the federal question on which the state-law determination appears to have been premised. If the state court has proceeded on an incorrect perception of federal law, it has been this Court’s practice to vacate the judgment of the state court and remand the case so that the court may reconsider the state-law question free of misapprehensions about the scope of federal law. Here, a careful reading of the North Dakota Supreme Court’s opinion leaves us far from certain that the court’s present interpretation of Chapter 27-19 does not rest on a misconception of federal law. In determining the role played by that court’s understanding of federal law, we are guided by the jurisdictional principles that have come to govern our calculation of adequate and independent state grounds. In Michigan v. Long, 463 U. S. 1032 (1983), this Court ruled that “when... a state court decision fairly appears ... to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.” Id., at 1040-1041. Although petitioner’s constitutional challenge to the North Dakota Supreme Court’s judgment means that we do not face a question of our own jurisdiction, see Standard Oil Co. v. Johnson, 316 U. S., at 482-483, we believe that the same general interpretive principles properly apply here. The North Dakota Supreme Court’s opinion does state that the North Dakota Legislature “totally disclaimed jurisdiction over civil causes of action arising on an Indian reservation,” but it adds that the legislature did so “pursuant to Public Law 280,” “[u]nder the authority of Public Law 280,” and “under explicit authority granted by Congress in the exercise of its federal power over Indians.” 321 N. W. 2d, at 511, 513. There are at least two respects in which these references and other language in the court’s opinion leave it far less than clear that the North Dakota Supreme Court’s interpretation of Chapter 27-19 was not influenced by its understanding of federal law. First, the court’s treatment of petitioner’s constitutional claims strongly suggests that the court’s underlying interpretation of Chapter 27-19 would have been different if the court had realized from the outset that federal law does not insulate the present jurisdictional disclaimer from state and federal constitutional scrutiny. While we express no view about the merits of petitioner’s federal equal protection challenge, we note that the North Dakota Supreme Court rejected petitioner’s state and federal constitutional claims not because it viewed them as otherwise meritless, but because “the people of North Dakota and the legislature were acting under explicit authority granted by Congress in the exercise of its federal power over Indians” in disclaiming state jurisdiction. 321 N. W. 2d, at 513. The court had proceeded on a similar assumption before; in Gourneau v. Smith, 207 N. W. 2d 256 (1973), for example, the court rejected an Indian plaintiff’s jurisdictional claim based on the “open courts” provision of N. D. Const. Art. I, § 9, because the tribal consent requirements of the Civil Rights Act of 1968 were taken to foreclose jurisdiction: “The courts of the State of North Dakota are open to all persons. But. . . Federal law prohibits State courts from assuming jurisdiction of civil actions involving Indians which arise on an Indian reservation, until such time as the Indians of that reservation have consented to such jurisdiction. Thus the courts of the State of North Dakota are open to Indians, if they consent to the courts’ jurisdiction as provided by law.” 207 N. W. 2d, at 259. The assumption that Pub. L. 280 and the Civil Rights Act of 1968 either authorized North Dakota to disclaim jurisdiction or affirmatively forbade the exercise of jurisdiction absent tribal consent is incorrect, for the reasons given above. That assumption, however, appears to have been the sole basis relied on by the North Dakota Supreme Court to avoid holding the jurisdictional disclaimer unconstitutional as applied in this case. Because the North Dakota Supreme Court has adhered consistently to the policy of construing state statutes to avoid potential state and federal constitutional problems, see, e. g., State v. Kottenbroch, 319 N. W. 2d 465, 473 (1982); Paluck v. Board of County Comm’rs, 307 N. W. 2d 852, 856 (1981); Grace Lutheran Church v. North Dakota Employment Security Bureau, 294 N. W. 2d 767, 772 (1980); North American Coal Corp. v. Huber, 268 N. W. 2d 593, 596 (1978); Tang v. Ping, 209 N. W. 2d 624, 628 (1973), it is entirely possible that the court would have avoided any constitutional question by construing Chapter 27-19 not to disclaim jurisdiction here, and it is equally possible that the court will reconstrue Chapter 27-19 that way if it is given an opportunity to do so. Second, the manner in which the court rejected the availability of “residuary jurisdiction” leaves open the possibility that, despite the court’s references to state law, the court regarded federal law as an affirmative bar to the exercise of jurisdiction here. The court stated: “In essence, [petitioner] argues that North Dakota retained residuary jurisdiction over actions brought by Indians against non-Indians for civil wrongs committed on Indian lands. . . . That argument would be more convincing had the legislature of North Dakota not, pursuant to Public Law 280, totally disclaimed jurisdiction over civil causes of action arising on an Indian reservation. In re Whiteshield, 124 N. W. 2d 694 (N. D. 1963). In Nelson v. Dubois, 232 N. W. 2d 54 (N. D. 1975), . . . we rejected the concept of ‘residuary’ jurisdiction. We adhere to that decision today.” 321 N. W. 2d, at 511 (emphasis added). The court’s reliance on Nelson v. Dubois is suggestive because Dubois itself turned aside an attempt to invoke state-court jurisdiction over Indian country on the ground that federal law barred the exercise of jurisdiction. Specifically, the court held that it did not have “residuary jurisdiction” over a suit by non-Indians against Indians, even if the exercise of jurisdiction were assumed not to infringe on tribal self-governance under Williams v. Lee, because the tribal consent provisions of the Civil Rights Act of 1968 pre-empted any exercise of state jurisdiction except in accordance with the terms of that Act. 232 N. W. 2d, at 57-59. The court recognized that its holding deprived the plaintiffs of any forum for their suit, but added: “The solution to this most serious problem lies not with the State. Congress may amend its statutes; Indian tribes of this State may begin to assert their own jurisdiction. This State cannot exercise jurisdiction that it does not possess.” Id., at 59. As noted above, the Civil Rights Act of 1968 in no way bars the exercise of jurisdiction in this case. The court’s reliance on Nelson v. Dubois to dismiss petitioner’s jurisdictional claim suggests, however, that the court was proceeding on a contrary premise. In that event, it may well have adopted a restrictive interpretation of Chapter 27-19 to avoid a perceived conflict between state and federal jurisdictional mandates. By the same token, Nelson v. Dubois itself suggests that the court might recognize some measure of “residuary jurisdiction” here but for the mistaken belief that a federal jurisdictional impediment exists. Because we cannot exclude this possibility with any degree of confidence, the prudent course is to give the North Dakota Supreme Court an opportunity to express its views on Chapter 27-19 and thereby “avoid the risk of ‘an affirmance of a decision which might have been decided differently if the court below had felt free, under our decisions, to do so.’ ” United Air Lines, Inc. v. Mahin, 410 U. S., at 632, quoting Perkins v. Benguet Consolidated Mining Co., 342 U. S. 437, 443 (1952). Our conclusion that the North Dakota Supreme Court’s state-law decision may well have rested on federal law is buttressed by prudential considerations. Were we not to give the North Dakota Supreme Court an opportunity to reconsider its conclusions with the proper understanding of federal law, we would be required to decide whether North Dakota has denied petitioner equal protection under the Fourteenth Amendment by excluding it from state courts in a circumstance in which a non-Indian would be allowed to maintain a suit. It is a fundamental rule of judicial restraint, however, that this Court will not reach constitutional questions in advance of the necessity of deciding them. See, e. g., Leroy v. Great Western United Corp., 443 U. S. 178, 181 (1979); Massachusetts v. Westcott, 431 U. S. 322, 323 (1977); Alexander v. Louisiana, 405 U. S. 625, 633 (1972); Ashwander v. TV A, 297 U. S. 288, 346-348 (1936) (concurring opinion); see also Whalen v. United States, 445 U. S. 684, 702 (1980) (Rehnquist, J., dissenting). This Court has relied on that principle in similar circumstances to resolve doubts about the independence of state-law decisions in favor of an interpretation that avoids a constitutional question. See, e. g., Black v. Cutter Laboratories, 351 U. S. 292, 299 (1956). The same prudential rule is properly employed in this case. If the North Dakota Supreme Court reinterprets Chapter 27-19 to permit petitioner to maintain its claim in the state courts, or if it concludes that Chapter 27-19 violates the State’s Constitution insofar as it bars jurisdiction in this case, neither that court nor this one will be required finally to reach petitioner’s federal constitutional challenge. Under these circumstances, our responsibility to avoid unnecessary constitutional adjudication demands that we resolve any uncertainty over the North Dakota Supreme Court’s decision in favor of the possibility that it was influenced by a misunderstanding of federal law. I — I I — I hH It is important to recognize what we have not decided m this case today. We have made no ruling that Chapter 27-19 has any meaning other than the one assigned to it by the North Dakota Supreme Court. Neither have we decided whether, assuming that the North Dakota Supreme Court adheres to its current interpretation of Chapter 27-19, application of the statute to petitioner will deny petitioner federal equal protection or violate any other federally protected right. Finally, we have intimated no view concerning the state trial court’s jurisdiction over respondent’s counterclaim should the North Dakota Supreme Court decide that the trial court does have jurisdiction over petitioner’s claim. Instead, we merely vacate the North Dakota Supreme Court’s judgment and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Following the North Dakota Supreme Court’s decision in this case, petitioner’s Tribal Business Council amended the Tribal Code to grant the tribal court subject-matter jurisdiction over all civil causes of action arising within the boundaries of the Fort Berthold Reservation. See F. Cohen, Handbook of Federal Indian Law 268, and n. 72 (1982 ed.). Before that, however, Congress had vested North Dakota with certain criminal jurisdiction over the Devils Lake Reservation. Act of May 31, 1946. ch. 279. 60 Stat. 229. In Gourneau v. Smith, 207 N. W. 2d 256, 258 (1973), the court expressly held that Vermillion “no longer states the rule to be applied . . . in a case between Indians arising out of use of the public highways on an Indian reservation.” In United States ex rel. Hall v. Hansen, 303 N. W. 2d 349, 350, and n. 3 (1981), however, the court did state in dictum that a state trial court lacked jurisdiction over a claim by an Indian against a non-Indian arising in Indian country. “All courts shall be open, and every man for any injury done him in his lands, goods, person or reputation shall have remedy by due process of law, and right and justice administered without sale, denial or delay.” N. D. Const., Art. I, §9. The State’s Constitution further provides that no citizen or class of citizens “shall... be granted privileges or immunities which upon the same terms shall not be granted to all citizens.” Art. I, §21. A number of state courts have recognized the right of Indians to bring suits in state courts against non-Indians for claims arising in Indian country. See, e. g., McCrea v. Busch, 164 Mont. 442, 524 P. 2d 781 (1974); Paiz v. Hughes, 76 N. M. 562, 417 P. 2d 51 (1966); Whiting v. Hoffine, 294 N. W. 2d 921, 923-924 (S. D. 1980). In Organized Village of Kake v. Egan, 369 U. S. 60, 71 (1962), this Court held that the phrase “absolute jurisdiction and control” was not intended to oust States completely from all authority concerning Indian lands. See, however, McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 176, n. 15 (1973). Although Vermillion was decided after the enactment of Pub. L. 280, the North Dakota Supreme Court made clear that it was confirming preexisting jurisdiction rather than establishing a previously unavailable jurisdictional category. See Vermillion v. Spotted Elk, 85 N. W. 2d, at 435-436. See 25 U. S. C. §§ 1321(a), 1322(a), 1326; S. Rep. No. 721, 90th Cong., 1st Sess., 32 (1967) (additional views of Sen. Ervin); Goldberg, Public Law 280: The Limits of State Jurisdiction Over Reservation Indians, 22 UCLA L. Rev. 535, 551 (1975). See 25 U. S. C. § 1323(a); 2 U. S. Dept. of Interior, Opinions of the Solicitor Relating to Indian Affairs, 1917-1974, pp. 1951-1952 (1979); see also Goldberg, supra, at 558-562. Although any assumption of jurisdiction pursuant to Pub. L. 280 must comply with that statute’s procedural requirements, see Kennerly v. District Court of Montana, 400 U. S. 423 (1971), Pub. L. 280’s requirements simply have no bearing on jurisdiction lawfully assumed prior to its enactment. The United States and the Turtle Mountain Band of Chippewa Indians, each of whom has filed a brief amicus curiae in support of petitioner, suggest that Chapter 27-19 may violate 42 U. S. C. § 1981 to the extent that it precludes petitioner from maintaining its action in state court. Section 1981 provides in relevant part: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory . . . to sue ... as is enjoyed by white citizens.” Petitioner does not appear to have relied on § 1981 before the North Dakota Supreme Court, nor has it done so here. In light of our disposition of this case, we need not decide whether the § 1981 issue is properly before us or, if so, whether a violation of § 1981 has been made out. The Supreme Court of North Dakota is free, of course, to consider the applicability of § 1981 on remand if it deems the issue to be properly before it. See 28 U. S. C. § 2106. In United Air Lines, Inc. v. Mahin, for example, two justices of the Illinois Supreme Court had construed a state tax statute to avoid a perceived conflict with the dormant Commerce Clause. This Court held that the interpretation forgone by the Illinois Supreme Court would not have run afoul of the Commerce Clause, and therefore remanded the case “to avoid the risk of ‘an affirmance of a decision which might have been decided differently if the court below had felt free, under our decisions, to do so.’” 410 U. S., at 632, quoting Perkins v. Benguet Consolidated Mining Co., 342 U. S. 437, 443 (1952). The court has made even more clear in other cases its view that Pub. L. 280, as amended by the 1968 Civil Rights Act, is an affirmative constraint on state jurisdiction. For example, in Schantz v. White Lightning, 231 N. W. 2d 812, 815-816 (1975), the court stated: “[A]ny change from the present [jurisdictional] case law would require action by the United States Congress. The appellants are asking this court to assume the duties and responsibilities which are vested solely in the United States Congress. The arguments presented should be addressed to that body. “The Congress has set out the mandatory procedure to be followed by the Indian Tribes and the State before the States may assume jurisdiction.. . . The Sioux Indians, not having accepted State jurisdiction as permitted and provided for by the congressional mandate and Chapter 27-19, we conclude that the State did not have, nor did it acquire, jurisdiction” (emphasis added). See United States ex ret. Hall v. Hansen, 303 N. W. 2d, at 350; Nelson v. Dubois, 232 N. W. 2d, at 61 (dissenting opinion); Gourneau v. Smith, 207 N. W. 2d, at 259; see also Poitra v. Demarrias, 502 F. 2d 23, 27 (CA8 1974), cert. denied, 421 U. S. 934 (1975); American Indian Agricultural Credit Consortium, Inc. v. Fredericks, 551 F. Supp. 1020, 1021-1022 (Colo. 1982). In at least one instance, the North Dakota Supreme Court took care not to extend its restrictive jurisdictional holdings to the situation in which an Indian plaintiff brought suit against a non-Indian defendant in state court. See Schantz v. White Lightning, 231 N. W. 2d, at 814, n. 1 (rejecting broad formulation of jurisdictional issue because it “would require the consideration of a question if an Indian could sue a non-Indian”). The court also once stated flatly that “Indians have the right to sue non-Indians in State courts.” Rolette County v. Eltobgi, 221 N. W. 2d 645, 648 (1974). But see n. 5, supra. In addition, the practical cost of mistakenly concluding that federal law influenced the North Dakota Supreme Court’s treatment of Chapter 27-19 is far outweighed by the cost of mistakenly reaching the opposite conclusion. If the court’s misunderstanding of Pub. L. 280 in fact did not contribute to its interpretation of state law, the court is free to reinstate its former judgment on remand. See, e. g., United Air Lines, Inc. v. Mahin, 54 Ill. 2d 431, 298 N. E. 2d 161 (1973). In contrast, if the court’s understanding of federal law did play a role in its interpretation of Chapter 27-19 but we were to proceed on a contrary assumption, we would be depriving petitioner of a judicial forum that the North Dakota Supreme Court would make available if only it were given another opportunity to address the issue. When the cost of erring in one direction is so negligible and the cost of erring in the other is so great, we think that uncertainty about the federal basis for the state-law decision properly is resolved in favor of the conclusion that federal law played a material role. Question: Was the case heard by a three-judge federal district court? A. Yes B. No Answer:

songer_usc2sect

258

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 40. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STATES of America, Appellee, v. UPPER POTOMAC PROPERTIES CORPORATION et al., Appellants. No. 15106. United States Court of Appeals, Fourth Circuit. Argued April 6, 1971. Decided Sept. 29, 1971. Philip O. Foard, Baltimore, Md. (George W. White, Jr., and Buckmaster, White, Mindel & Clarke, Baltimore, Md., on brief), for appellants. Peter R. Steenland, Atty., Dept. of Justice (Shiro Kashiwa, Asst. Atty. Gen., Edmund B. Clark, Anthony C. Liotta, Philip M. Zeidner, Attys., Dept. of Justice, and George Beall, U. S. Atty., on brief), for appellee. Before BOREMAN, BRYAN and CRAVEN, Circuit Judges. CRAVEN, Circuit Judge: This is an appeal from a judgment entered on a jury verdict in the United States District Court for the District of Maryland, awarding the defendants $315,000.00 as compensation for the taking by the United States of over 2,060 acres of coal mining property. It was agreed before trial that the highest and best use of the land was for coal mining purposes, and at the trial the testimony of all witnesses was directed to the value of the property for such purposes. The questions presented us are these: (1) whether the property should be valued as of the date of the trial, as defendants contend, or as of the date of the filing of the Order for Delivery of Possession, as held by the district court; (2) whether the district judge erred in admitting into evidence testimony concerning the sale of a piece of coal mining property to the lessee of all the mineral rights to the property; and (3) whether it was error to charge the jury that if they found certain sales relied upon by the government’s expert witness to be comparable, they were the best evidence of value, but not the only evidence to be considered. For reasons set out below we conclude that the assignments of error are without merit and affirm the judgment below. This action was commenced on April 17, 1968, when the government filed a Complaint and a Notice of Condemnation according to 33 U.S.C. §§ 591, 594. On April 18, 1968, the district court entered ex parte an Order for Delivery of Possession. On May 14, 1968, a stipulation between the parties was filed. The defendants argue that since the government did not file a declaration of taking under 40 U.S.C. §§ 258a-258e, nor take physical possession at any time before the trial, the value of the land is to be ascertained as of the date of the trial. However, under 33 U.S.C. § 594 the United States is entitled to the right of immediate possession provided only that subsequent compensation is assured. *When it proceeds under this title, as was done here, the United States is not required to file a Declaration of Taking under 40 U.S.C. §§ 258a-258e unless it elects to do so. United States v. Catlin, 142 F.2d 781 (7th Cir. 1944). We agree with the district court that the time of taking was on April 18, 1968, the date of the Order for Delivery of Possession. While it is true that the United States did not have actual physical possession of the land in question on that date, the stipulation of May 14, 1968, between the parties indicates that the rights of the defendants to the use of the land was limited in such a way as to be inconsistent with anything except a possessory right in the government with certain rights reserved to the defendants. Our conclusion on this issue is reinforced by paragraph 5 of the Stipulation, the proper interpretation of which we think is provided by the district court. “Only if the land had previously been taken by the United States [i. e., at the date of the Stipulation], but defendants were nevertheless permitted to use some of it, and remove coal, would it be necessary to provide specifically for reflecting, ‘the diminution in value * * * by reason [of removal] of the coal or other materials.’ ” R. 88-93, App. at 19. We think the district judge did not abuse his discretion when he allowed the jury to consider the price paid for the coal mining operation immediately adjacent to the property in question on the theory that comparable sales- are the best evidence of value. The government appraisers testified that they took this price into consideration as a comparable sale in arriving at their figure of what the fair market value of the property in question would be. This sale, entered into in 1967 (hereinafter referred to as the Johnstown sale), was of about 5,000 acres by the Johnstown Coal Company to Douglas Coal Company for $250,000. Douglas Coal Company already had a lease on the property under which they could mine the coal on the property for 20 years, with an option to renew for ten years or until the coal was exhausted. As royalty under their lease, Douglas was to pay a per ton price which varied depending on the mining method used, but which was to be at least $625 per month. The defendants contend that since this lease existed, evidence of the subsequent sale should have been excluded because no one other than Douglas could have bought the land and used it for coal mining. Implicit in this argument is the supposition that since Douglas had the lease, it could not have rationally paid the same price for the freehold as it would have if the lease had not existed, and therefore the purchase price in the Johnstown sale could not have reflected the fair market value of the freehold. It is clear that the term fair market value, with reference to the land in question, is the complete freehold interest. However, it does not follow that the fair market value of the property involved in the Johnstown sale must be greater than the price paid for the land subject to the lease. This depends entirely on the terms of the lease. While it is true that only Douglas could have bought the land and used it for coal mining, whether or not it would pay more or less than the fair market value of the land would depend upon the terms of the lease. There was conflicting testimony when evidence of this sale was first introduced whether the government appraisers knew the terms of the lease when they arrived at their conclusions as to fair market value of the property in question. However, there was also evidence that the government appraisers considered the lease to be a “fair market” lease (App. 287) and that they had concluded from conversations with the principals to the Johnstown sale that the sale was for the fair market value of the land. If this testimony is taken as true, as it must be here, there is no reason to believe that Douglas would not have paid the value of the land as it would have been without the lease. If the royalty payments were more than the fair rental value of the land, Johnstown would have no reason to sell and the lease would actually enhance the value of the freehold. If the royalty payments had been less than the fair rental value, it is true that the freehold interest would be less valuable with the lease than without it. But if the royalty payments reflect the fair rental value in 1967, then it would seem that the lease neither added nor detracted from the value of the land. There is testimony which would support a conclusion that the lease in question provided for royalty payments below the fair rental value in 1967, in which ease the sale price could well have been less than the fair market value of the land, since the leasehold would have value. However, there is also adequate testimony to support the conclusion that the lease in question in the Johnstown sale properly reflected the fair rental value of the land in 1967, in which case the lease could properly be disregarded when arriving at a conclusion as to fair market value of the freehold, as one of the government appraisers testified he did. App. at 261. Allowing the jury to consider whether the sale price of the Johnstown property was a comparable sale was clearly within the sound discretion of the district judge; indeed, it would have been error to exclude it for federal courts favor “a broad rule of admissibility * * * of all evidence which is relevant and material to the issues in controversy, unless there is a sound and practical reason for excluding it. * * * ” United States v. Sowards, 370 F.2d 87, 90 (10th Cir. 1966). The defendant property owners next contend that it was error to instruct the jury, preliminarily and at the close of the case, that comparable sales are the best evidence of value. In addition, the property owners seem to argue that it was also error to allow the jury to consider the prior sales as evidence bearing on the value of the property in question because another method of valuation is generally used by members of the coal mining industry when they consider whether to buy a piece of coal bearing property. This method, termed the discounted royalty rate method, uses the product of the amount of recoverable coal in place times the price per ton of such coal, discounted over time. Defendants urge that because this method of valuation is almost universally used by people in the coal mining business any other method of valuation is inadmissible under exclusionary rules of evidence. We disagree. That it may be an acceptable method does not serve to exclude otherwise competent evidence relating to valuation. For a discussion of whether this method is an acceptable method of valuation or a deviation from the proper standard of value, see United States v. Sowards, 370 F.2d 87 (10th Cir. 1966), and cases cited. The main thrust of defendants’ appeal is that the district judge committed error by instructing the jury that comparable sales are the best evidence of value. The property owners claim that the effect of the trial judge’s instructions was to preclude the jury from even considering the method of valuation used in the industry, and that the jury thought that the only issue to be determined was whether or not there were comparable sales. A reading of the instructions given the jury by the trial judge, however, does not support the defendants’ contention. On numerous occasions the trial judge repeated his basic instructions that “ * * * if there are comparable sales, they are the best evidence, but they are not to be taken solely and exclusively, they are to be taken in connection with all of these other things.” App. 1147. See also App. 1148-1150. Throughout his instructions, the trial judge emphasized that comparable sales, if the jury found them in fact to be comparable, are not the only evidence of value which the jury was to consider. In addition, the trial judge specifically instructed the jury that they could also consider the price per ton of coal and the royalty rate in arriving at the amount to be paid defendants. App. 1150. We think it is clear that the trial judge’s instructions did not limit the jury in the manner that the defendants contend. The defendants further contend that the trial judge labored under the erroneous impression that he was compelled by decisions of this court to charge the jury that comparable sales are the best evidence of value in all condemnation cases and that but for his misapprehension he would not have so charged in this case. We perceive no such error. It is clear that the trial judge did not think such an instruction was mandatory under all circumstances, but rather concluded that under the facts of this case such an instruction was appropriate and therefore mandatory. Having correctly determined that there was an issue of fact for the jury as to whether several sales relied upon by the government witness were comparable, the trial judge was then obligated to give an instruction that if found to be comparable, such sales are the best evidence of value, but not the only evidence. The law was correctly stated by Judge Boreman in United States v. Whitehurst, 337 F.2d 765, 775 (4th Cir. 1964), when he said, “[I]t is settled law that comparable sales are the best evidence of value.” See also United States v. Miller, 317 U.S. 369, 374-375, 63 S.Ct. 276, 87 L.Ed. 336 (1943), United States v. Lowrie, 246 F.2d 472, 474 (4th Cir. 1957). The judgment of the district court will be Affirmed. . The lands taken were to be used for the building of the Bloomington Dam and Reservoir on the North Branch of the Potomac River in Garrett County, Maryland. . Section 594 reads in relevant part as follows : Whenever the Secretary of the Army, in pursuance of authority conferred on him by law, causes proceedings to be instituted in the name of the United States for the acquirement by condemnation of any lands, easements, or rights of way needed for a work of river and harbor improvements duly authorized by Congress, the United States, upon the filing of the petition in any such proceedings, shall have the right to take immediate possession of said lands, easements, or rights of way, to the extent of the interest to be acquired, and proceed with such public works thereon as have been authorized by Congress: Provided, That certain and adequate provision shall have been made for the payment of just compensation to the party or parties entitled thereto, either by previous appropriation by the United States or by the deposit of moneys or other form of security in such amount and form as shall be approved by the court in which such proceedings shall be instituted. * * * . For example, the stipulation provides that: Defendants further agree that no strip mining, cast off of overburden or disturbance of the earth for any reason is permitted by them except as stated below. Defendants may conduct mining operations on the property subject to following conditions: After conditions relative to strip mining in certain areas were laid out, the stipulation continued: In the event that the District Engineer should determine that the continued use and occupancy of the areas designated herein constitutes an interference with protect purposes the Defendants hereby agree to cease its operations immediately upon notice by the United States Army District Engineer to said effect. . Defendants further agree that the diminution in the value of the land described in paragrapli 3 above by reason of removal of coal or other materials shall be reflected in the just compensation as determined by judicial process or by stipulated agreement between the plaintiff and defendants. Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 40? Answer with a number. Answer:

songer_counsel2

D

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party MACDONALD v. SCHENKEL. No. 7732. United States Court of Appeals for the District of Columbia. Argued Oct. 7, 1941. Decided Oct. 13, 1941. James J. Laughlin, of Washington, D. C., for appellant. D. Edward Clarke, of Washington, D. C., for appellee. Before GRONER, Chief Justice and MILLER and EDGERTON, Associate Justices. PER CURIAM. Appellant sued appellee, his brother-in-law, for false imprisonment. His complaint alleged that in July, 1939, he got into appellee’s car at the latter’s invitation to be taken to his home in Washington City, but instead was taken to the station house, turned over to the police, and without any charge being placed against him was confined in a cell from Saturday night until Monday. Appellee answered that on the day in question he was called by a police officer of the District of Columbia Women’s Bureau and advised that appellant’s wife (his sister) and two children had been evicted from their home for nonpayment of rent; that he went to the Bureau, saw his sister, was informed that her husband (appellant) had deserted her, and was asked by both the police and his sister to apprehend appellant in order that he should not leave the District without making provision for his family; that he thereafter located appellant, whom he found in a more or less drunken condition, and in good faith and without malice took him to the station house in order that he might be held until he was in fit condition to return to his wife and children. The court, on motion of the plaintiff, entered judgment on the pleadings and the case was sent to a jury to assess- the amount of damages. In the ensuing trial, evidence was introduced by both parties, and the jury fixed the damages at $1. Appellant moved that the verdict be set aside as inadequate and a new trial awarded. This appeal is from the refusal of the court to grant the motion. The single question is whether the damages awarded are obviously so inadequate as clearly to indicate that the jury was influenced by passion or prejudice. The answer must be in the negative. There was no allegation of special damages. We have said many times that when a question of fact is submitted to a jury under proper instructions, as to which there is neither objection nor exception, the verdict of the jury closes the question. Here the jury heard the evidence of both sides in relation to appellant’s detention, and it thereupon became their exclusive duty to assess his damages. All the circumstances considered, we cannot say as a matter of law that there was an abuse of discretion. Columbia Aid Ass’n v. Sprague, 50 App.D.C. 307, 271 F. 381; Washington Times Co. v. Bonner, 66 App.D.C. 280, 293, 86 F.2d 836, 110 A.L.R. 393; Ramsey v. Ross, 66 App.D.C. 186, 189, 85 F.2d 685; Schnaufer v. Price, Tex.Civ.App., 124 S.W.2d 940; Salo v. Smith, 25 Cal.App. 295, 143 P. 322; Wegner v. Risch, 114 Wis. 270, 90 N.W. 168; Bergeron v. Peyton, 106 Wis. 377, 82 N.W. 291, 80 Am.St.Rep. 33; Henderson v. McReynolds, 60 Hun. 579, 14 N.Y.S. 351; Taylor v. Davis, Tex.Sup., 13 S.W. 642. Certainly, under the circumstances, there was no abuse of discretion by the trial judge in denying appellant’s motion. Affirmed. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:

songer_genapel1

G

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. Roman Columbus BROWN, Appellant, v. UNITED STATES of America, Appellee. No. 73-1785. United States Court of Appeals, Eighth Circuit. Submitted Dec. 14, 1973. Decided Jan. 15, 1974. Roman Columbus Brown, pro se. Donald J. Stohr, U. S. Atty., and Richard E. Coughlin, Asst. U. S. Atty., St. Louis, Mo., filed brief for appellee. Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge. W. C. Stuart, District Judge, Southern District of Iowa, sitting by designation. PER CURIAM. Appellant Brown appeals from a decision by the United States District Court for the Eastern District of Missouri denying his petition for a correction of his federal sentence. On May 5, 1972, appellant was arrested by the St. Louis, Missouri, police on a charge of armed robbery. On May 8, 1972, a federal detainer was lodged against appellant for parole violation. On June 15, 1972, the state charge was dismissed and appellant was subsequently returned to federal custody. During the period from May 5 to June 15, appellant was in continuous state custody, unable to secure his release on bail. Appellant seeks to have the time spent in state custody credited against his federal sentence on the theory that the federal detainer was the cause of his inability to make bail. Title 18, United States Code, § 3568, provides in part: The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. (Emphasis added.) Focusing on the “in connection with” language of this section, the Court of Appeals for the Fifth Circuit, in Davis v. Attorney General (5th Cir., 1970), 425 F.2d 238, 240, held that a prisoner denied release on bail by state authorities because of an outstanding federal detainer lodged against him is in custody in connection with a federal offense and entitled to credit against his federal sentence for the time spent in state custody. This court has recognized the authority of Davis. See Shields v. Dagget (8th Cir., 1972), 460 F.2d 1060, 1061. The court is of the opinion that appellant’s case is within the rule set forth in Davis. Appellant is entitled to relief. Accordingly, the decision below is reversed, and the case is remanded for entry of an order granting appellant the credit to which he is entitled against his federal sentence. Judgment reversed and remanded with directions. . Since appellant received no credit for the time spent in state custody against any state sentence, there is here no problem of double credit for the time spent in state custody. This case is thus distinguishable from the facts in Shields and in Doss v. United States (8th Cir., 1971), 449 F.2d 1274. . Although appellant only seeks to have his federal sentence shortened by five days, it appears from the record that he is entitled to credit for the entire period from May 8, the day the detainer was lodged against him, to June 15, the day he was released from state custody. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

sc_partywinning

B

What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. DIAMOND, COMMISSIONER OF PATENTS AND TRADEMARKS v. CHAKRABARTY No. 79-136. Argued March 17, 1980 Decided June 16, 1980 BubgeR, C. J., delivered the opinion of the Court, in which Stewart, Blackmun, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed a dissenting opinion, in which White, Marshall, and Powell, JJ., joined, post, p. 318. Deputy Solicitor General Wallace argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Assistant Attorney General Shenefield, Harriet S. Shapiro, Robert B. Nicholson, Frederic Freilicher, and Joseph F. Nakamura. Edward F. McKie, Jr., argued the cause for respondent. With him on the brief were Leo I. MaLossi, William E. Schuyler, Jr., and Dale H. Hoscheit Leonard S. Bubenstein filed a brief for the Peoples Business Commission as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed by George W. Whitney, Bruce M. Collins, and Karl F. Jorda for the American Patent Law Association, Inc.; by Thomas D. Kiley for Genentech, Inc.; by Jerome G. Lee, William F. Dudine, Jr., and Paul H. Heller for the New York Patent Law Association, Inc.; by Peter R. Taft, Joseph A. Keyes, Jr., and Sheldon Ellcñt Steinbach for Dr. Leroy E. Hood et al.; and by Lorance L. Greenlee for Dr. George Pieczenik. Briefs of amici curiae were filed by William I. Althen for the American Society for Microbiology; by Donald R. Dunner for the Pharmaceutical Manufacturers Association; by Edward S. Irons, Mary Helen Sears, and Donald Reidhaar for the Regents of the University of California; and by Cornell D. Cornish, pro se. Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to determine whether a live, human-made micro-organism is patentable subject matter under 35 U. S. C. § 101. I In 1972, respondent Chakrabarty, a microbiologist, filed a patent application, assigned to the General Electric Co. The application asserted 36 claims related to Chakrabarty’s invention of “a bacterium from the genus Pseudomonas containing therein at least two stable energy-generating plasmids, each of said plasmids providing a separate hydrocarbon degradative pathway.” This human-made, genetically engineered bacterium is capable of breaking down multiple components of crude oil. Because of this property, which is possessed by no naturally occurring bacteria, Chakrabarty’s invention is believed to have significant value for the treatment of oil spills. Chakrabarty’s patent claims were of three types: first, process claims for the method of producing the bacteria; second, claims for an inoculum comprised of a carrier material floating on water, such as straw, and the new bacteria; and third, claims to the bacteria themselves. The patent examiner allowed the claims falling into the first two categories, but rejected claims for the bacteria. His decision rested on two grounds: (1) that micro-organisms are “products of nature,” and (2) that as living things they are not patentable subject matter under 35 U. S. C. § 101. Chakrabarty appealed the rejection of these claims to the Patent Office Board of Appeals, and the Board affirmed the examiner on the second ground. Relying on the legislative history of the 1930 Plant Patent Act, in which Congress extended patent protection to certain asexually reproduced plants, the Board concluded that § 101 was not intended to cover living things such as these laboratory created micro-organisms. The Court of Customs and Patent Appeals, by a divided vote, reversed on the authority of its prior decision in In re Bergy, 563 F. 2d 1031, 1038 (1977), which held that “the fact that microorganisms . . . are alive ... [is] without legal significance” for purposes of the patent law. Subsequently, we granted the Acting Commissioner of Patents and Trademarks’ petition for certiorari in Bergy, vacated the judgment, and remanded the case “for further consideration in light of Parker v. Flook, 437 U. S. 584 (1978).” 438 17. S. 902 (1978). The Court of Customs and Patent Appeals then vacated its judgment in Chakrabarty and consolidated the case with Bergy for reconsideration. After re-examining both cases in the light of our holding in Flook, that court, with one dissent, reaffirmed its earlier judgments. 596 F. 2d 952 (1979). The Commissioner of Patents and Trademarks again sought certiorari, and we granted the writ as to both Bergy and Chakrabarty. 444 U. S. 924 (1979). Since then, Bergy has been dismissed as moot, 444 U. S. 1028 (1980), leaving only Chakrabarty for decision. II The Constitution grants Congress broad power to legislate to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Art. I, § 8, cl. 8. The patent laws promote this progress by offering inventors exclusive rights for a limited period as an incentive for their inventiveness and research efforts. Kewanee Oil Co. v. Bicron Corp., 416 U. S. 470, 480-481 (1974); Universal Oil Co. v. Globe Co., 322 U. S. 471, 484 (1944). The authority of Congress is exercised in the hope that “[t]he productive effort thereby fostered will have a positive effect on society through the introduction of new products and processes of manufacture into the economy, and the emanations by way of increased employment and better lives for our citizens.” Kewanee, supra, at 480. The question before us in this case is a narrow one of statutory interpretation requiring us to construe 35 U. S. C. § 101, which provides: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” Specifically, we must determine whether respondent’s microorganism constitutes a “manufacture” or “composition of matter” within the meaning of the statute. Ill In cases of statutory construction we begin, of course, with the language of the statute. Southeastern Community College v. Davis, 442 U. S. 397, 405 (1979). And “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U. S. 37, 42 (1979). We have also cautioned that courts “should not read into the patent laws limitations and conditions which the legislature has not expressed.” United States v. Dubilier Condenser Corp., 289 U. S. 178, 199 (1933). Guided by these canons of construction, this Court has read the term “manufacture” in § 101 in accordance with its dictionary definition to mean “the production of articles for use from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by hand-labor or by machinery.” American Fruit Growers, Inc. v. Brogdex Co., 283 U. S. 1, 11 (1931). Similarly, “composition of matter” has been construed consistent with its common usage to include “all compositions of two or more substances and ... all composite articles, whether they be the results of chemical union, or of mechanical mixture, or whether they be gases, fluids, powders or solids.” Shell Development Co. v. Watson, 149 F. Supp. 279, 280 (DC 1957) (citing 1 A. Deller, Walker on Patents § 14, p. 55 (1st ed. 1937)). In choosing such expansive terms as “manufacture” and “composition of matter,” modified by the comprehensive “any,” Congress plainly contemplated that the patent laws would be given wide scope. The relevant legislative history also supports a broad construction. The Patent Act of 1793, authored by Thomas Jefferson, defined statutory subject matter as “any new and useful art, machine, manufacture, or composition of matter, or any new or useful improvement [thereof].” Act of Feb. 21, 1793, § 1, 1 Stat. 319. The Act embodied Jefferson’s philosophy that “ingenuity should receive a liberal encouragement.” 5 Writings of Thomas Jefferson 75-76 (Washington ed. 1871). See Graham v. John Deere Co., 383 U. S. 1, 7-10 (1966). Subsequent patent statutes in 1836, 1870, and 1874 employed this same broad language. In 1952, when the patent laws were recodified, Congress replaced the word “art” with “process,” but otherwise left Jefferson’s language intact. The Committee Reports accompanying the 1952 Act inform us that Congress intended statutory subject matter to “include anything under the sun that is made by man.” S. Rep. No. 1979, 82d Cong., 2d Sess., 5 (1952); H. R. Rep. No. 1923, 82d Cong., 2d Sess., 6 (1952). This is not to suggest that § 101 has no limits or that it embraces every discovery. The laws of nature, physical phenomena, and abstract ideas have been held not patentable. See Parker v. Flook, 437 U. S. 584 (1978); Gottschalk v. Benson, 409 U. S. 63, 67 (1972); Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U. S. 127, 130 (1948); O’Reilly v. Morse, 15 How. 62, 112-121 (1854); Le Roy v. Tatham, 14 How. 156, 175 (1853). Thus, a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E=mc2; nor could Newton have patented the law of gravity. Such discoveries are “manifestations of . . . nature, free to all men and reserved exclusively to none.” Funk, supra, at 130. Judged in this light, respondent’s micro-organism plainly qualifies as patentable subject matter. His claim is not to a hitherto unknown natural phenomenon, but to a nonnaturally occurring manufacture or composition of matter — a product of human ingenuity “having a distinctive name, character [and] use.” Hartranft v. Wiegmann, 121 U. S. 609, 615 (1887). The point is underscored dramatically by comparison of the invention here with that in Funk. There, the patentee had discovered that there existed in nature certain species of root-nodule bacteria which did not exert a mutually inhibitive effect on each other. He used that discovery to produce a mixed culture capable of inoculating the seeds of leguminous plants. Concluding that the patentee had discovered "only some of the handiwork of nature,” the Court ruled the product nonpatentable: “Each of the species of root-nodule bacteria contained in the package infects the same group of leguminous plants which it always infected. No species acquires a different use. The combination of species produces no new bacteria, no change in the six species of bacteria, and no enlargement of the range of their utility. Each species has the same effect it always had. The bacteria perform in their natural way. Their use in combination does not improve in any way their natural functioning. They serve the ends nature originally provided and act quite independently of any effort of the patentee.” 333 TJ. S., at 131. Here, by contrast, the patentee has produced a new bacterium with markedly different characteristics from any found in nature and one having the potential for significant utility. His discovery is not nature’s handiwork, but his own; accordingly it is patentable subject matter under § 101. IV Two contrary arguments are advanced, neither of which we find persuasive. (A) The petitioner’s first argument rests on the enactment of the 1930 Plant Patent Act, which afforded patent protection to certain asexually reproduced plants, and the 1970 Plant Variety Protection Act, which authorized protection for certain sexually reproduced plants but excluded bacteria from its protection. In the petitioner’s view, the passage of these Acts evidences congressional understanding that the terms “manufacture” or “composition of matter” do not include living things; if they did, the petitioner argues, neither Act would have been necessary. We reject this argument. Prior to 1930, two factors were thought to remove plants from patent protection. The first was the belief that plants, even those artificially bred, were products of nature for purposes of the patent law. This position appears to have derived from the decision of the Patent Office in Ex parte Latimer, 1889 Dec. Com. Pat. 123, in which a patent claim for fiber found in the needle of the Pinus australis was rejected. The Commissioner reasoned that a contrary result would permit “patents [to] be obtained upon the trees of the forest and the plants of the earth, which of course would be unreasonable and impossible.” Id., at 126. The Latimer case, it seems, came to “se[t] forth the general stand taken in these matters” that plants were natural products not subject to patent protection. Thorne, Relation of Patent Law to Natural Products, 6 J. Pat. Off. Soc. 23, 24 (1923). The second obstacle to patent protection for plants was the fact that plants were thought not amenable to the “written description” requirement of the patent law. See 35 U. S. C. § 112. Because new plants may differ from old only in color or perfume, differentiation by written description was often impossible. See Hearings on H. R. 11372 before the House Committee on Patents, 71st Cong., 2d Sess., 7 (1930) (memorandum of Patent Commissioner Robertson). In enacting the Plant Patent Act, Congress addressed both of these concerns. It explained at length its belief that the work of the plant breeder “in aid of nature” was patentable invention. S. Rep. No. 315, 71st Cong., 2d Sess., 6-8 (1930); H. R. Rep. No. 1129, 71st Cong., 2d Sess., 7-9 (1930). And it relaxed the written description requirement in favor of “a description ... as complete as is reasonably possible.” 35 U. S. C. § 162. No Committee or Member of Congress, however, expressed the broader view, now urged by the petitioner, that the terms “manufacture” or “composition of matter” exclude living things. The sole support for that position in the legislative history of the 1930 Act is found in the conclusory statement of Secretary of Agriculture Hyde, in a letter to the Chairmen of the House and Senate Committees considering the 1930 Act, that “the patent laws ... at the present time are understood to cover only inventions or discoveries in the field of inanimate nature.” See S. Rep. No. 315, supra, at Appendix A; H. R. Rep. No. 1129, supra, at Appendix A. Secretary Hyde’s opinion, however, is not entitled to controlling weight. His views were solicited on the administration of the new law and not on the scope of patentable subject matter — an area beyond his competence. Moreover, there is language in the House and Senate Committee' Reports suggesting that to the extent Congress considered the matter it found the Secretary’s dichotomy unpersuasive. The Reports observe: “There is a clear and logical distinction between the discovery of a new variety of plant and of certain inanimate things, such, for example, as a new and useful natural mineral. The mineral is created wholly by nature unassisted by man. ... On the other hand, a plant discovery resulting from cultivation is unique, isolated, and is not repeated by nature, nor can it be reproduced by nature unaided by man. . . .” S. Rep. No. 315, supra, at 6; H. R. Rep. No. 1129, supra, at 7 (emphasis added). Congress thus recognized that the relevant distinction was not between living and inanimate things, but between products of nature, whether living or not, and human-made inventions. Here, respondent’s micro-organism is the result of human ingenuity and research. Hence, the passage of the Plant Patent Act affords the Government no support. Nor does the passage of the 1970 Plant Variety Protection Act support the Government’s position. As the Government acknowledges, sexually reproduced plants were not included under the 1930 Act because new varieties could not be reproduced true-to-type through seedlings.. Brief for Petitioner 27, n. 31. By 1970, however, it was generally recognized that true-to-type reproduction was possible and that plant patent protection was therefore appropriate. The 1970 Act extended that protection. There is nothing in its language or history to suggest that it was enacted because § 101 did not include living things. In particular, we find nothing in the exclusion of bacteria from plant variety protection to support the petitioner’s position. See n. 7, supra. The legislative history gives no reason for this exclusion. As the Court of Customs and Patent Appeals suggested, it may simply reflect congressional agreement with the result reached by that court in deciding In re Arzberger, 27 C. C. P. A. (Pat.) 1315, 112 F. 2d 834 (1940), which held that bacteria were not plants for the purposes of the 1930 Act. Or it may reflect the fact that prior to 1970 the Patent Office had issued patents for bacteria under § 101. In any event, absent some clear indication that Congress “focused on [the] issues . . . directly related to the one presently before the Court" SEC v. Sloan, 436 U. S. 103, 120-121 (1978), there is no basis for reading into its actions an intent to modify the plain meaning of the words found in § 101. See TV A v. Hill, 437 U. S. 153, 189-193 (1978) ; United States v. Price, 361 U. S. 304, 313 (1960). (B) The petitioner’s second argument is that micro-organisms cannot qualify as patentable subject matter until Congress expressly authorizes such protection. His position rests on the fact that genetic technology was unforeseen when Congress enacted § 101. From this it is argued that resolution of the patentability of inventions such as respondent’s should be left to Congress. The legislative process, the petitioner argues, is best equipped to weigh the competing economic, social, and scientific considerations involved, and to determine whether living organisms produced by genetic engineering should receive patent protection. In support of this position, the petitioner relies on our recent holding in Parker v. Flook, 437 U. S. 584 (1978), and the statement that the judiciary “must proceed cautiously when . . . asked to extend patent rights into areas wholly unforeseen by Congress.” Id., at 596. It is, of course, correct that Congress, not the courts, must define the limits of patentability; but it is equally true that once Congress has spoken it is “the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Congress has performed its constitutional role in defining patentable subject matter in § 101; we perform ours in construing the language Congress has employed. In so doing, our obligation is to take statutes as we find them, guided, if ambiguity appears, by the legislative history and statutory purpose. Here, we perceive no ambiguity. The subject-matter provisions of the patent law have been cast in broad terms to fulfill the constitutional and statutory goal of promoting “the Progress of Science and the useful Arts” with all that means for the social and economic benefits envisioned by Jefferson. Broad general language is not necessarily ambiguous when congressional objectives require broad terms. Nothing in Flook is to the contrary. That case applied our prior precedents to determine that a “claim for an improved method of calculation, even when tied to a specific end use, is unpatentable subject matter under § 101.” 437 U. S., at 595, n. 18. The Court carefully scrutinized the claim at issue to determine whether it was precluded from patent protection under “the principles underlying the prohibition against patents for 'ideas’ or phenomena of nature.” Id., at 593. We have done that here. Flook did not announce a new principle that inventions in areas not contemplated by Congress when the patent laws were enacted are unpatentable per se. To read that concept into Flook would frustrate the purposes of the patent law. This Court frequently has observed that a statute is not to be confined to the “particular application [s] . . . contemplated by the legislators.” Barr v. United States, 324 U. S. 83, 90 (1945). Accord, Browder v. United States, 312 U. S. 335, 339 (1941); Puerto Rico v. Shell Co., 302 U. S. 253, 257 (1937). This is especially true in the field of patent law. A rule that unanticipated inventions are without protection would conflict with the core concept of the patent law that anticipation undermines patentability. See Graham v. John Deere Co., 383 U. S., at 12-17. Mr. Justice Douglas reminded that the inventions most benefiting mankind are those that “push back the frontiers of chemistry, physics, and the like.” Great A. & P. Tea Co. v. Supermarket Corp., 340 U. S. 147, 154 (1950) (concurring opinion). Congress employed broad general language in drafting § 101 precisely because such inventions are often unforeseeable. To buttress his argument, the petitioner, with the support of amicus, points to grave risks that may be generated by research endeavors such as respondent’s. The briefs present a gruesome parade of horribles. Scientists, among them Nobel laureates, are quoted suggesting that genetic research may pose a serious threat to the human race, or, at the very least, that the dangers are far too substantial to permit such research to proceed apace at this time. We are told that genetic research and related technological developments may spread pollution and disease, that it may result in a loss of genetic diversity, and that its practice may tend to depreciate the value of human life. These arguments are forcefully, even passionately, presented; they remind us that, at times, human ingenuity seems unable to control fully the forces it creates— that, with Hamlet, it is sometimes better “to bear those ills we have than fly to others that we know not of.” It is argued that this Court should weigh these potential hazards in considering whether respondent’s invention is patentable subject matter under § 101. We disagree. The grant or denial of patents on micro-organisms is not likely to put an end to genetic research or to its attendant risks. The large amount of research that has already occurred when no researcher had sure knowledge that patent protection would be available suggests that legislative or judicial fiat as to patentability will not deter the scientific mind from probing into the unknown any more than Canute could command the tides. Whether respondent's claims are patentable may determine whether research efforts are accelerated by the hope of reward or slowed by want of incentives, but that is all. What is more important is that we are without competence to entertain these arguments — either to brush them aside as fantasies generated by fear of the unknown, or to act on them. The choice we are urged to make is a matter of high policy for resolution within the legislative process after the kind of investigation, examination, and study that legislative bodies can provide and courts cannot. That process involves the balancing of competing values and interests, which in our democratic system is the business of elected representatives. Whatever their validity, the contentions now pressed on us should be addressed to the political branches of the Government, the Congress and the Executive, and not to the courts We have emphasized in the recent past that “[o]ur individual appraisal of the wisdom or unwisdom of a particular [legislative] course ... is to be put aside in the process of interpreting a statute.” TV A v. Hill, 437 U. S., at 194. Our task, rather, is the narrow one of determining what Congress meant by the words it used in the statute; once that is done our powers are exhausted. Congress is free to amend § 101 so as to exclude from patent protection organisms produced by genetic engineering. Cf. 42 U. S. C. § 2181 (a), exempting from patent protection inventions “useful solely in the utilization of special nuclear material or atomic energy in an atomic weapon.” Or it may choose to craft a statute specifically designed for such living things. But, until Congress takes such action, this Court must construe the language of § 101 as it is. The language of that section fairly embraces respondent’s invention. Accordingly, the judgment of the Court of Customs and Patent Appeals is Affirmed. Plasmids are hereditary units physically separate from the chromosomes of the cell. In prior research, Chakrabarty and an associate discovered that plasmids control the oil degradation abilities of certain bacteria. In particular, the two researchers discovered plasmids capable of degrading camphor and octane, two components of crude oil. In the work represented by the patent application at issue here, Chakrabarty discovered a process by which four different plasmids, capable of degrading four different oil components, could be transferred to and maintained stably in a single Pseudomonas bacterum, which itself has no capacity for degrading oil. At present, biological control of oil spills requires the use of a mixture of naturally occurring bacteria, each capable of degrading one component of the oil complex. In this way, oil is decomposed into simpler substances which can serve as food for aquatic life. However, for various reasons, only a portion of any such mixed culture survives to attack the oil spill. By breaking down multiple components of oil, Chakrabarty’s microorganism promises more efficient and rapid oil-spill control. The Board concluded that the new bacteria were not “products of nature,” because Pseudomonas bacteria containing two or more different energy-generating plasmids are not naturally occurring. Bergy involved a patent application for a pure culture of the microorganism Streptomyces vellosus found to be useful in the production of lincomycin, an antibiotic. This case does not involve the other “conditions and requirements” of the patent laws, such as novelty and nonobviousness. 35 U. S. C. §§ 102, 103. This same language was employed by P. J. Federico, a principal draftsman of the 1952 reeodification, in his testimony regarding that legislation: “[U]nder section 101 a person may have invented a machine or a manufacture, which may include anything under the sun that is made by man. . . .” Hearings on H. R. 3760 before Subcommittee No. 3 of the House Committee on the Judiciary, 82d Cong., 1st Sess., 37 (1951). The Plant Patent Act of 1930, 35 U. S. C. § 161, provides in relevant part: “Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propogated plant or a plant found in an uncultivated state, may obtain a patent therefor. . . .” The Plant Variety Protection Act of 1970, provides in relevant part: “The breeder of any novel variety of sexually reproduced plant (other than fungi, bacteria, or first generation hybrids) who has so reproduced the variety, or his successor in interest, shall be entitled to plant variety protection therefor. ...” 84 Stat. 1547, 7 U. S. C. § 2402 (a). See generally, 3 A. Deller, Walker on Patents, ch. EX (2d ed. 1964); R. Allyn, The First Plant Patents (1934). Writing three years after the passage of the 1930 Act, R. Cook, Editor of the Journal of Heredity, commented: “It is a little hard for plant men to understand why [Art. I, § 8] of the Constitution should not have been earlier construed to include the promotion of the art of plant breeding. The reason for this is probably to be found in the principle that natural products are not patentable.” Florists Exchange and Horticultural Trade World, July 15, 1933, p. 9. In 1873, the Patent Office granted Louis Pasteur a patent on “yeast, free from organic germs of disease, as an article of manufacture.” And in 1967 and 1968, immediately prior to the passage of the Plant Variety Protection Act, that Office granted two patents which, as the petitioner concedes, state claims for living micro-organisms. See Reply Brief for Petitioner 3, and n. 2. Even an abbreviated list of patented inventions underscores the point: telegraph (Morse, No. 1,647); telephone (Bell, No. 174,465); electric lamp (Edison, No. 223,898); airplane (the Wrights, No. 821,393); transistor (Bardeen & Brattain, No. 2,524,035); neutronic reactor (Fermi & Szilard, No.. 2,708,656); laser (Schawlow & Townes, No. 2,929,922). See generally Revolutionary Ideas, Patents & Progress in America, United States Patent and Trademark Office (1976). We are not to be understood as suggesting that the political branches have been laggard in the consideration of the problems related to genetic research and technology. They have already taken action. In 1976, for example, the National Institutes of Health released guidelines for NIH-sponsored genetic research which established conditions under which such research could be performed. 41 Fed. Reg. 27902. In 1978 those guidelines were revised and relaxed. 43 Fed. Reg. 60080, 60108, 60134. And Committees of the Congress have held extensive hearings on these matters. See, e. g., Hearings on Genetic Engineering before the Subcommittee on Health of the Senate Committee on Labor and Public Welfare, 94th Cong., 1st Sess. (1975); Hearings before the Subcommittee on Science, Technology, and Space of the Senate Committee on Commerce, Science, and Transportation, 95th Cong., 1st Sess. (1977); Hearings on H. R. 4759 et al. before the Subcommittee on Health and the Environment of the House Committee on Interstate and Foreign Commerce, 95th Cong., 1st Sess. (1977). Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No Answer:

songer_genapel1

G

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. James W. SWAIN, Jr., Appellant, v. ISTHMIAN LINES, INC. No. 15327. United States Court of Appeals Third Circuit. Argued Dec. 10, 1965. Decided April 13, 1966. Rehearing Denied May 17, 1966. Sidney J. Smolinsky, Philadelphia, Pa., for appellant. James F. Young, Krusen Evans & Byrne, Philadelphia, Pa., for Isthmian Lines, Inc., appellee. Before KALODNER, Chief Judge, and STALEY and FORMAN, Circuit Judges. FORMAN, Circuit Judge. In the admiralty action brought by a seaman, James W. Swain (hereinafter appellant), against Isthmian Lines, Inc. (hereinafter appellee), the United States District Court for the Eastern District of Pennsylvania granted summary judgment for appellant and awarded $570 in damages. This appeal contests the amount of the damage award and the method of its determination. No cross appeal has been filed by the appellee contesting the entry of summary judgment adverse to it. On May 27, 1963, appellant signed articles for a foreign voyage aboard the ship “Steel Designer” in the capacity of a utility messman at $284.52 monthly ($9.48 daily). In the port of Suez, on August 16, 1963, appellant reported ill. On the following day he was diagnosed as having syphilis in its primary stage, and was relieved of his duties as of August 16, 1963. The ship incurred a medical bill of $43.02 at Suez for appellant’s needed drugs and medical treatment. With the ship’s return to the United States on September 3, 1963, appellant signed off the vessel’s articles. Appellee paid him wages for the foreign voyage from May 27, 1963 to August 16, 1963. From these wages were deducted, among other things, the $43.02 medical expense incurred by the ship at Suez. Appellant protested this deduction. Appellant retained a proctor on September 10, 1963. On September 19 his proctor sent a letter to appellee formally protesting the propriety of the deduction of $43.02 from appellant’s wages and asserting, among other things, a claim for penalties for the wrongful withholding. A week later, September 26, 1963, appellant received appellee’s mailed reply denying appellant’s claim. Some three and a half months later, January 10, 1964, appellant’s libel, asserting the impropriety of the deduction and demanding penalties under Section 596 of 46 U.S.C. was filed in the District Court. Appellee answered the libel on February 19, 1964, in which it defended the propriety of the $43.02 deduction from appellant’s wages. On April 1, 1964 appellee paid appellant $43.02 to terminate the running of the penalty period. Appellant then limited his claim for penalties to the period September 3, 1963-April 1, 1964. Summary judgment having been moved on July 9, 1964 and an affidavit in support thereof filed on December 10, 1964, the District Court in an opinion and order of March 1, 1965, granted appellant’s motion and assessed $570 damages. This case thus concerns a claim to a statutory penalty for an alleged wrongful withholding from a seaman’s wages. In such a case there are three pertinent questions for a court’s consideration: (1) Was an improper deduction taken from a seaman’s wages considering the limited statutory instances when a deduction by a ship is proper ? ; (2) If a deduction were improper, was it “without sufficient cause” within 46 U.S.C. § 596 so that a penalty was triggered?; and (3) If a penalty runs, what is the standard for the determination of its amount? As to the first consideration, the District Court found, supported by appellee’s concession thereof, that the withholding of the $43.02 for medical expenses from appellant’s wages was contrary to law. It has been eminently clear in the law, at the very least since the Supreme Court case of Isbrandtsen Co. v. Johnson in 1952 that a deduction from wages for medical expenses such as were incurred by appellee in the instant ease is wrongful as falling outside the proper deductible instances enumerated in 46 U.S.C. § 701. This question, therefore, has been closed for some time. Despite its finding that appellee’s action in withholding the $43.02 from appellant’s wages was neither arbitrary nor unscrupulous, the District Court did assess a penalty. Therefore, it must have answered the second question by con-eluding that appellee, nevertheless, did not have sufficient cause to subtract the $43.02 from appellant’s wages. Appellee does not contest before us the District Court’s implicit finding of no sufficient cause for the wage deduction. Given the unmistakable clarity of the law at the time of the deduction, any successful contesting of the District Court’s implicit finding on this point would certainly have been precluded in this case. This brings us to the third inquiry, controlling within the facts of this case. What standard is determinative of the amount of the penalty to be assessed? The District Court employed an equitable yardstick to limit appellant’s recovery to $570. The question of how to measure the statutory penalties once an absence of sufficient cause for a wage deduction is determined is by no means of recent vintage, although, considering the age of the statutory provision involved, there are relatively few reported cases on the matter. It is indeed a novel point of lav/ for our court. Section 596, the penalty provision at issue herein, states that once a master or owner withholds a seaman’s wages without sufficient cause, the master or owner “shall pay to the seaman a sum equal to two days’ pay for each and every day during which payment is delayed * * which sum shall be recoverable as wages in any claim made before the court * *.” This penalty provision has undergone certain evolutionary changes. As originally enacted the master or owner was liable to pay the seaman a sum not more than the amount of two days’ pay for each day, not exceeding ten, during which the payment was delayed. Such a provision left the courts with a significant latitude in setting the rate for which such a penalty would run. In 1898, Congress seemingly legislated this discretion out of the Shipping Commissioner’s Act by amending the penalty provision to provide for the payment of a sum equal to one day’s pay for each day during which payment was delayed without sufficient cause. Finally, in 1915, the penalty rate was adjusted upward, Congress awarding two days’ pay for each day of delay in wage payment by a master or shipowner without sufficient cause. This penalty has remained in effect since that time. The “not more than” form of penalty, which explicitly reposes in the judiciary a significant measure of discretion in tailoring penalties to the equities of each case, is the language found in many of the penalty provisions of the Shipping Commissioner’s Act. A few sections, however, such as Section 596 involved herein, speak in, what is on their faces, mandatory language, seemingly vesting no discretion in the judiciary to reduce the amount of the penalty to be computed in accordance with the statutory formula. This court, in construing one of these apparently mandatory penalty provisions, Section 594, has characterized such a provision as one providing for damages “which have been liquidated by legislative enactment.” Despite this rather precise statutory directive, of those eases which we have uncovered, where the question — whether Section 596 of the statute may still be read with a measure of judicial discretion when supposed equitable considerations present themselves — was considered, all have found proper the balancing of the statutory language with a judicial sense of the equities of each case. The presence of this unanimity, however, has not eliminated discomfort occasionally felt by the courts in exercising such discretion. In Dahl v. The S.S. Amigo the anomaly of this situation emerges from the following language of the court: “Although the statute would seem to indicate that the penalty provision should run until actual payment is in fact made, it appears to be the accepted rule of law that the time for which the penalty provision runs shall rest within the sound discretion of the court, depending upon and to be determined by the equities. * * * Upon review of the many cases holding that the penalty provision should run to various and different specified periods of time, it appears that an effort should be made to stabilize this feature of the penalty wage statute. Unless the particular equities in the given case would dictate otherwise, I believe the rule should be that the penalty provision shall run until such time as the libel-lant with the exercise of due diligence could have brought his action on to be heard in court.” In essence, though the Dahl court recognized the imperative feature of the statute, and was uncomfortable in adding to it, the urge to superimpose equitable considerations upon it was not restrained. Where have the federal courts, with such unanimity, derived the authority to intrude equitable considerations into their reading of Section 596? The early case of Mystic S.S. Co. v. Stromland, the later case of Mavromatis v. United Greek Shipowners Corporation, and the more recent case of Southern Cross Steamship Co. v. Firipis, all have relied on the Supreme Court’s ruling in Pacific Mail S.S. Co. v. Schmidt, as the source of their authority to exercise discretion in the interpretation of Section 596. Other cases have relied on these intermediate court decisions and there is now a solid net of precedent in support of the exercise of such discretion. Pacific Mail does, however, appear to be the considered foundation for such precedents. As it seems to be the only Supreme Court ruling relating to the issue, an examination of it is desirable. In Pacific Mail, the seaman, at the conclusion of a foreign voyage, was paid in full on September 24, 1913 and that date noted as the date of the termination of the voyage. The seaman, however, remained on board working until, on October 1, 1913, he was notified of his discharge. On his demanding his wages for those services on board ship while in port, the seaman was told that silverware to the amount of $32.90 was missing, that he was accountable for it, and that this sum was greater than that of $30.33, his wages due and owing. No wages were paid. Such withholding was found by the courts to be “without sufficient cause.” The District Court assessed penalties up to the date of its entry of a final decree. The Court of Appeals allowed penalties from that date to its affirmance of the District Court’s decree. The case then went to the Supreme Court. The shipowner argued that penalties were inappropriate and should not be applied at all, not because there were countervailing equities or because the withholding was with sufficient cause, but because the penalty provision was in a statute dealing with voyages and did not apply to wages accumulated by labor disassociated from a voyage, as was this seaman’s work effort. Justice Holmes, in speaking for a unanimous Supreme Court, and though approving the application of penalties, emphasized the closeness of the question of whether the penalty provisions should apply at all to an unwarranted deduction from wages for work performed outside the course of a voyage. The only issue, as the Supreme Court saw it, was whether penalties could then run after the entry of a District Court’s decree. The Court ruled that the date of the District Court’s decree terminated the running of the penalty provision, for the appeals taken by the shipowner from that adverse District Court determination were based upon a reasonable ground in believing that the appellate courts would rule that the penalty provision was not at all applicable to post-voyage labor. The decision explicitly speaks of “sufficient cause for the neglect to pay after the decree of the district court.” The Supreme Court thus found it unnecessary to consider whether, under other circumstances, “there would be any escape from Massachusetts v. .West. Un. Tel. Co.” which seemed to indicate that under any circumstances the penalties would terminate with the District Court’s decree. Pacific Mail is sui generis and does not, as urged by the appellee, stand for the bald proposition that the judiciary has authority to exercise discretion in adjusting admittedly applicable penalties accruing during the period prior to the entry of a District Court’s decree. Indeed, the converse of a right to exercise discretion in the name of equitable considerations may be gleaned from Pacific Mail, for despite the fact that the question of the applicability of the penalty provision was such a close one, the Supreme Court did not see fit to remand the cause to the District Court for consideration of this factor for the purpose of mitigating the penalties which had accrued prior to entry of the District Court’s decree. Therefore, as we see it, Pacific Mail is in no way a foundation upon which the subsequent cases, noted above, may rest. We must now inquire whether there is a reasonable independent basis sanctioning judicial discretion to tailor the penalty provision of Section 596 to the equities of a particular case. The District Court considered the equitable basis to be found in the following factors: “ * * * [Ljibellant had contracted a dangerous and virulent disease, apparently — although we do not so decide — through his own misconduct. Proper regard for the health and safety of the ship’s company, as well as libellant himself, dictated prompt remedial measures. Respondent’s expenditure undeniably enured to libellant’s own benefit.” The appellee also^ stresses, as one basis for affirmance, these factors. In none of the above mentioned eases did the issue of equitable discretion turn on factors surrounding the motivation of a shipowner in making a wage deduction. There is, however, a somewhat oblique concern as to the desirability of such factors being weighed in Mystic S.S. Co. v. Stromland where, in the opinion denying rehearing, it was stated: “ * * * It was certainly not the intention of Congress that the statute should be construed in such way as virtually to deny to shipowners the right to contest liability in cases of this sort, by making the penalties so great in case of failure to maintain the defense asserted as to deter them from making any defense at all.” The answer to this concern, however, is not to consider equitable factors in mitigation of the statutory penalty. Such factors are those which were meant to be considered by a court in determining only whether there was an absence of sufficient cause for the wage deduction. If these equitable considerations carry the day on that issue, no penalty will be assessed at all. When Congress chose not to legislate a penalty for all cases in which the deduction was legally wrongful, as falling outside the categories in 46 U.S.C. § 701, it meant to have the equitable considerations — those separate and apart from the legal impropriety of the deduction — weighed in determining whether the Section 596 penalty should be applied. Thus, when such considerations fail to establish the existence of sufficient cause for the deduction under Section 596, those same equitable considerations may not be reevaluated when the assessment of the penalty is considered. Any other conclusion would certainly misplace such equitable considerations in the statutory scheme. Appellee does stress an alternative point, however, a point which has appeared in a few of the cases approving use of equitable considerations in mitigating the statutory penalty. The period of three and a half months between the time of appellee’s formal denial of appellant’s claim, September 26, 1963, and his bringing suit, January 10, 1964, is urged as inordinate delay prejudicial to the appellee, for which the District Court might properly have reduced the penalty. Aside from the fact that it would not justify as substantial a reduction as the District Court made, we do not think that the time in which a libellant brings his suit should have any bearing on the amount of the penalty assessed. As is recognized by all the parties here, Section 596 seeks to deter a master or shipowner from improperly making a deduction from a seaman’s wages. The section provides that the penalty “shall be recoverable as wages in any claim made before the court.” Such wage recovery is only limited by the running of the applicable statute of limitations and such a rule should, as applied to the assessment of penalties, run parallel. Delay by a seaman in his instituting suit will not place an oppressive burden on a shipowner. After all, if sufficient cause for the deduction is found to be lacking, the shipowner or his agent has either been overtly culpable in reducing a seaman’s wages, or significantly inattentive in his duties vis-a-vis the seaman’s wage rights. As we view it, it is precisely the possibility that large penalties will accrue that should motivate a shipowner to exercise care in computing wages due a seaman. We think that this deterrent was what Congress had in mind in providing for a penalty in the form of inflexible liquidated damages. In conclusion, as was aptly stated in the dissenting Court of Appeals opinion in Pacific Mail, upon considering the penalty provision of Section 596: “ * * * as to the severity of the penalty, there is, of course, no thought of suggesting that a court can properly decline to enforce a statute because it may seem to be unnecessarily harsh.” In our view, those cases supporting the superimposition of equitable concepts onto Section 596 have, in fact, mitigated the statutory penalty in the name of the alleviation of supposed unnecessary harshness. We have concluded that these cases rest on no firm precedents, that such alleged harshness is illusory, that there is no compelling independent reason to lessen the statutory penalty case by ease and, therefore the language of Section 596 must be read as a mandatory command to the judiciary. Thus the judgment of the United States District Court for the Eastern District of Pennsylvania will be affirmed to the extent that it grants judgment in favor of James W. Swain, Jr., the appellant herein, but in so far as it fixes the amount of that judgment in the sum of $570 it will be vacated and the case remanded to the District Court for the purpose of assessing the damages in conformity with this opinion, reflecting the computation of penalties from September 8, 1963 to April 1, 1964. . Congress has provided that: “ * * * Every master or owner who refuses or neglects to make payment (of wages) in the manner here-inbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days’ pay for each and every day during which payment is delayed beyond the respective periods, which sum shall be recoverable as wages in any claim made before the court * * 46 U.S.C. § 596 (1965). (Emphasis added.) . In an April 8, 1964 amendment to his libel appellant added a wage claim, asserting a wrongful and unlawful non-payment of wages from August 16, 1963 to September 3, 1963. This demand was included in appellant’s summary judgment motion. The issue has, however, apparently dropped out of the ease. It is neither dealt with in the District Court’s opinion and order on the summary judgment motion nor has it been raised by appellant on appeal. . Swain v. Isthmian Lines, Inc., 239 F. Supp. 672 (E.D.Pa.1965). . These instances are set forth in 46 U.S.C. § 701 (1965) and are exclusive as to the propriety of any deduction from wages. Isbrandtsen Co. v. Johnson, 343 U.S. 779, 789, 72 S.Ct. 1011, 96 L.Ed. 1294 (1952). . It is well settled that the mere existence of an unlawful withholding does not, in and of itself, establish the absence of sufficient cause for that withholding. See Johnson v. Isbrandtsen Co., 190 F. 2d 991, 993 (3 Cir. 1951), aff’d, 343 U.S. 779, 72 S.Ct. 1011, 96 L.Ed. 1294 (1952); Chambers v. Moore McCormack Lines, 182 F.2d 747, 749 (3 Cir. 1950). . Supra note 4. . Swain v. Isthmian Lines, Inc., supra note 3 at 674. . These appear to be the only reported cases focusing on, or dealing with in passing, this question, as distinguished from cases such as Collie v. Fergusson, 281 U.S. 52, 50 S.Ct. 189, 74 L.Ed. 696 (1930), concerned with the question of the existence or absence of sufficient cause for a wage deduction: McConville v. Florida Towing Corporation, 321 F.2d 162, 168 n. 11 (5 Cir. 1963): Caribbean Federation Lines v. Dahl, 315 F.2d 370, 374 (5 Cir. 1963): Southern Cross Steamship Co. v. Firipis, 285 F.2d 651, 656-658 (4 Cir. 1960); Prindes v. The S.S. African Pilgrim, 266 F.2d 125, 128-129 (4 Cir., 1959); Mavromatis v. United Greek Shipowners Corporation, 179 F. 2d 310, 316 (1 Cir. 1950); Mystic S.S. Co. v. Stromland, 20 F.2d 342, 344-345, rehearing denied, 21 F.2d 607 (4 Cir. 1927); Kontos v. S.S. Sophie C., 236 F.Supp. 664, 674 (E.D.Pa.1964): Dahl v. The S.S. Amigo, 202 F.Supp. 890, 894 (S.D.Ala.1962); Spero v. Steamship The Argodon, 150 F.Supp. 1, 6 (E.D.Va. 1957); Samad v. The Etivebank, 134 F.Supp. 530, 542 (E.D.Va.1955); Forster v. Oro Navigation Company, 128 F.Supp. 113, 116-117 (S.D.N.Y.1954), aff’d, 228 F.2d 319 (2 Cir. 1955); The Victoria, 76 F.Supp. 54, 56 (S.D.N.Y.1947), rev'd on other grounds, Usatorre v. The Victoria, 172 F.2d 434 (2 Cir. 1949); The Chester, 25 F.2d 908, 911 (D.Md.1928); The Lake Galewood, 21 F.2d 987, 989 (D.Md.1927). . Supra note 1. (Emphasis added.) . 46 U.S.C. § 596 (1965) (codification explanation). . Ibid. . Ibid. . See, 46 U.S.C. §§ 546, 562, 563, 567, 568, 571, 577, 599, 623(1965). . See, 46 U.S.C. §§ 575, 576, 578, 594 (1965). . Newton v. Gulf Oil Corporation, 180 F. 2d 491, 494 (3 Cir.), cert. denied, 340 U.S. 814, 71 S.Ct. 42,95 L.Ed. 598 (1950). . Supra note 8. (Emphasis added.) See The Victoria, supra note 8. . Supra note 8. . Supra note 8. . Supra note 8. . 241 U.S. 245, 36 S.Ct. 581, 60 L.Ed. 982 (1916). . Id. at 250, 36 S.Ct. at 583. . 141 U.S. 40, 11 S.Ct. 889, 35 L.Ed. 628 (1891). See Pacific Mail S.S. Co. v. Sclimidt, supra note 20 at 251, 36 S.Ct. at 583. . Swain v. Isthmian Lines, Inc., supra note 3 at 674. . Supra note 8. . Mystic S.S. Co. v. Stromland, supra note 8; Dahl v. The S.S. Amigo, supra note 8; The Lake Galewood, supra note 8. . The textual discussion above is disposi-tive of this appeal. However, of those cases set forth in note 8 supra, by far the larger number deal with two problems not at issue herein. As some of these eases have been relied upon by both the District Court and the appellee, a brief mention of these two matters seems appropriate. The absence of a demand for wages by a seaman lias been an equitable consideration having a bearing on the amount of the penalty assessed. In McCrea v. United States, 294 U.S. 23, 30-31, 55 S. Ct. 293, 79 L.Ed. 735 (1935), the failure to demand, under the peculiar facts of the case, went to the issue of whether sufficient cause existed, in the first instance, for the deduction. That case has no bearing on whether, once sufficient cause is found to be absent, a failure to demand may servo to mitigate the statutory penalty. As has been discussed in the text above, a wage deduction will be found to be without sufficient cause if a shipowner or his agent has been overtly culpable in reducing a seaman’s wages, or significantly inattentive in his duties vis-á-vis a seaman’s wage rights, such conduct providing a shipowner with notice of the transgression of his obligations to a seaman. Under such circumstances, Congress could not have intended that a demand for wages by a seaman should be a factor in mitigation of the statutory penalties. A number of cases cited in note 8 supra, mitigate the statutory penalty if a seaman, once a libel has been filed, has not been diligent in expediting disposition of the case. We do not believe that Congress meant to leave to the judiciary discretion in judging such a seaman’s conduct in mitgation of the statutory penalty. Indeed, in our view, the most adequate protection a shipowner has against accumulating penalties once a libel is filed is to place in the hands of the court the allegedly unlawfully withheld wages. A similar approach was taken and made mandatory in Southern Cross Steamship Co. v. Firipis, supra note 8. Such a fund will terminate the running of the penalties as of the date of its creation, just as appellee’s actual payment of appellant’s wages on April 1, 1964 terminated the running of the penalty provision. . Pacific Mail S.S. Co. v. Schmidt, 214 F. 513, 521 (9 Cir. 1914), rev’d, 241 U.S. 245, 36 S.Ct. 581, 60 L.Ed. 982 (1916). Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

songer_direct1

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Arnold S. WELLMAN, et al., Plaintiffs-Appellees, v. Fairleigh S. DICKINSON, Jr., Defendant-Appellant. Nos. 39, 40, Dockets 80-6213, 80-6357. United States Court of Appeals, Second Circuit. Argued Dec. 9, 1981. Decided June 24, 1982. S. Lee Terry, Jr., Washington, D. C. (Jacob H. Stillman, Associate Gen. Counsel, Elisse B. Walter, Asst. Gen. Counsel, Ruth S. Epstein, Paul Gonson, Sol., Washington, D. C., of counsel), for appellee S. E. C. Paul M. Bernstein and Kreindler & Kreindler, New York City, Lead Counsel for Stockholder Class and Liaison Counsel (Kaufman, Taylor & Kimmel, New York City, Co-Lead Counsel for Stockholder Class, Harvey Greenfield, New York City, Co-Counsel for Class Plaintiff Wellman, Pomerantz, Levy, Haudek & Block, New York City, Lead Counsel for debenture holder Class, Philips & Mushkin, P. C., New York City, Counsel for class plaintiff Polne, Rabin & Silverman, New York City, Counsel for class plaintiff Pupko, of counsel on the brief), for class plaintiffs and cross-appellants. Sheldon Elsen, New York City (Orans, Elsen, Polstein & Naftalis, Leslie A. Lup-pert, Paul E. Summit, New York City, of counsel), for defendant-appellant. Before LUMBARD, MOORE and VAN GRAAFEILAND, Circuit Judges. LEONARD P. MOORE, Circuit Judge: This appeal arises from seven separate actions brought against defendant-appellant, Fairleigh S. Dickinson, Jr., and eleven other defendants, for alleged violations of the federal securities laws, New Jersey state law, and the rules of the New York Stock Exchange. These seven actions include an enforcement action brought by the Securities and Exchange Commission (“SEC”), a private action filed by Becton, Dickinson & Company (“Becton”) and certain of its officers, and five class actions brought on behalf of certain Becton shareholders. All seven actions stem from the acquisition by Sun Company, Inc. of approximately 34% of the outstanding stock of Becton, a New Jersey corporation engaged in the manufacture of health care products and medical testing and research equipment. The actions were consolidated for a bench trial before the Honorable Robert L. Carter, District Judge of the Southern District of New York. By agreement of the parties, the consolidated trial was bifurcated on the issues of liability and damages. On the issue of liability, Judge Carter held, inter alia, that Dickinson, in an effort to induce a third-party takeover or partial takeover of Becton, had violated Section 13(d) of the Securities Exchange Act of 1934, 15 U.S.C. § 78m(d) (1976), when he joined a group to sell more than 5% of the company’s common stock without making the requisite filings with the SEC, Becton, and the exchange on which the securities were traded. Wellman v. Dickinson, 475 F.Supp. 783, 837 (S.D.N.Y.1979). Before the trial on damages commenced, the SEC withdrew its request for relief from Dickinson other than a judicial declaration that Dickinson had violated Section 13(d). Accordingly, by order entered on February 19, 1980, Judge Carter adhered to the court’s findings concerning Dickinson’s liability and, with the SEC’s consent, terminated with prejudice its enforcement action against Dickinson. On July 31, 1980, Judge Carter issued a final opinion addressing, inter alia, the class plaintiffs’ claims for damages or disgorgement of profits against Dickinson and other members of the group found to have violated Section 13(d). Wellman v. Dickinson, 497 F.Supp. 824, 834-36 (S.D.N.Y.1980). Judge Carter held that these plaintiffs had no right to monetary relief against Dickinson for a number of reasons, including their failure to demonstrate that the Section 13(d) violations directly caused any injury to the class. Thus, the district court entered a final judgment on September 29, 1980, denying the class plaintiffs’ claims for disgorgement and other monetary relief against Dickinson for his violation of Section 13(d). Dickinson appeals from this final judgment and all prior orders in this case finding that he violated Section 13(d) of the Securities Exchange Act of 1934. Dickinson contends that plaintiffs have failed to prove either that the purported members of the Section 13(d) group had beneficial ownership of sufficient Becton stock to form a group with him, or that he had entered an agreement with anyone to dispose of Bec-ton stock either directly or indirectly through agents. The class plaintiffs cross-appeal from those portions of the September 29, 1980 judgment denying their claims for disgorgement and other monetary relief against Dickinson and from the dismissal of their claims for breach of fiduciary duty against Dickinson. On appeal, the class plaintiffs renew their argument that Dickinson breached his fiduciary duty to the shareholders of Becton, and that he must disgorge a portion of the profits he obtained as a result of his actions in violation of Section 13(d) and in breach of his fiduciary duty. We reject the claims raised by both parties, and hold that Judge Carter did not err in finding that Dickinson violated Section 13(d) of the Securities Exchange Act of 1934 and in denying the claims of the class plaintiffs for damages or disgorgement from Dickinson. For the reasons set forth below, we affirm the district court’s judgment and orders in all respects. “The prior findings and order of this Court shall remain in effect as to Dickinson and [the SEC’s enforcement action] as to Dickinson is otherwise terminated with prejudice.” FACTS Since the facts underlying this appeal are described in detail in the two opinions of the district court, Wellman v. Dickinson, 497 F.Supp. 824 (S.D.N.Y.1980); Wellman v. Dickinson, 475 F.Supp. 783 (S.D.N.Y.1979), we shall only summarize them briefly- As Judge Carter observed: “The background and governing facts in this complex drama embrace personality conflicts, animosity, distrust, and corporate politics, as well as a display of ingenuity and sophistication by brokers, investment bankers and corporate counsel”. Wellman v. Dickinson, supra, 475 F.Supp. at 797-98. One of the principal personalities was Fairleigh S. Dickinson, Jr., the son of a founder of Becton and a major stockholder of the company. He individually held 802,-138 shares of Becton stock (4.2% of the outstanding shares). In addition, Dickinson held 140,794 shares (.64%) as a co-trustee and at least 198,922 shares (1%) as a member of the Dickinson family. Dickinson personally managed Becton for over twenty-five years. In 1974, Dickinson relinquished his management responsibilities and became Chairman of the Board. In late 1976, however, differences between the new management and Dickinson emerged. On April 20, 1977, after a bitter internal power struggle over the course of several months, the new management team prevailed, and the board of directors voted to remove Dickinson as its chairman. The day following his removal as chairman, Dickinson met with representatives of Salomon Brothers (“Salomon”), a New York limited partnership engaged in the investment banking and brokerage business, to obtain advice on how to regain control of Becton. In attendance were Jerome Lipper, who was Dickinson’s attorney, Kenneth Lipper, brother of Jerome Lipper and a partner of Salomon, Richard Rosen-thal and John Gutfreund of Salomon, Martin Lipton, who was Salomon’s attorney, and two directors of Becton who were sympathetic to Dickinson. These men discussed several possible strategies. Dickinson ultimately agreed to a plan to vote with outside directors as a means of bringing pressure on Becton’s management and selling a block of the company’s shares, including his own, to a corporation interested in taking over Becton. Dickinson hired Salomon to assist him in locating a corporation that would be interested in purchasing his substantial holdings in Becton and those of his friends as the springboard for a complete or partial takeover of the company. Dickinson’s friends included Dr. J. H. Fitzgerald Dunning, a director of Becton, who personally owned 3,200 shares and served as one of two co-trustees for one of three family trusts which held 344,849 shares (1.8%). Each of his two brothers served as a co-trustee for one of the other two trusts, and Dunning’s personal lawyer served as the other trustee for all three trusts. Shortly thereafter, Salomon was also contacted by Dan W. Lufkin who was concerned about his investment in Becton stock in light of Dickinson’s removal from the company’s chairmanship. Lufkin was a member of a partnership together with Edward L. Scarff which owned 93,000 shares of Becton stock. The partnership and three other individuals, Richard Drake, Charles Willock, and Robert Smith, were the principals of a kidney dialysis company acquired by Becton in 1977. As a result of that transaction, the partnership received 93,000 shares of Becton stock, Willock received 46,248 shares, and the two other men each received 140,148 shares (total 2.2%). After the acquisition of the dialysis company, Drake, Willock, and Smith continued to rely heavily on Lufkin’s partnership for investment advice. Dickinson subsequently contacted Robert Zeller, chief executive officer of F. Eber-stadt & Company, Inc. (“Eberstadt”), a Delaware corporation engaged in investment banking, institutional stock brokerage, and the management of pension funds and advisory accounts. Eberstadt had acted for many years as Becton’s investment banker. Zeller had also advised Dickinson on the handling of some of his personal affairs. Moreover, an Eberstadt subsidiary, F. Eber-stadt & Company Managers & Distributors Inc. (“Eberstadt M & D”), served as investment advisor to two mutual funds (the “Funds”), the Chemical Fund and the Surveyor Fund, which along with a number of Eberstadt-managed discretionary brokerage accounts held 496,075 shares of Becton stock (2.6%). Dickinson informed Zeller that he was asking Salomon to involve Eberstadt in the effort to encourage a corporation to undertake a complete or partial takeover of Becton. Initially, Dickinson and Salomon and Zeller entered into merely an oral understanding. However, after Becton’s counsel threatened to sue if Dickinson continued to seek a buyer for a large percentage of Becton stock, Martin Lipton, Salo-mon’s attorney, advised Salomon to obtain written indemnification from Dickinson. By letter dated October 12, 1977, Dickinson confirmed his engagement of Salomon and agreed to indemnify the firm against all claims arising out of its representation of Dickinson in securing a buyer for his stock. Beginning in the spring of 1977, Salomon and Eberstadt worked earnestly to interest a major corporation in acquiring a minority interest or in effecting a complete takeover of Becton. During the next eight months, Salomon and Eberstadt arranged meetings with several major corporations, including Avon, American Home Products Corp., and Squibb Corp., in an effort to induce these companies to acquire shares in Becton. Dickinson himself participated in these activities until late December, when he was hospitalized for approximately one month. The presentations by Salomon and Eber-stadt to the corporations potentially interested in purchasing Becton stock were virtually identical. A representative from one of the two brokerage houses would inform the corporation that Salomon and Eberstadt were representing Dickinson. They would then describe Dickinson’s animosity toward Becton’s management and his desire to dispose of his stock in the company. They would also disclose that other stockholders shared Dickinson’s ill feelings and were interested in selling their shares. In each case, the corporation was advised that Dickinson’s stock and a block of stock that the brokerage houses represented were available if the corporation was interested in a takeover of Becton. This block of shares included those beneficially owned by the Eberstadt-managed funds and by Dickinson’s friends, Dunning and Lufkin. The representative would then outline a takeover plan, placing special emphasis on the number and availability of the shares controlled by Dickinson, the Funds, Dunning, and Lufkin’s partnership. They asserted that Dickinson and his family held approximately 1,200,000 shares and that the remaining three members of the group held approximately 1,300,000 shares. Although a portion of these shares were held in trust, the representative assured the potential purchaser that the approximately 2,500,000 shares (13%) were readily available. Moreover, the corporation was usually told that the group’s shares of Becton stock would provide a sufficient base from which to launch a more extensive acquisition program for additional shares and a complete takeover of the company. The labors of the two brokerage houses eventually bore fruit when Sun Company, Inc. (“Sun”), a Pennsylvania corporation whose principal business involves oil and gas, entered the picture. On November 28, 1977, Kenneth Lipper of Salomon approached Horace Kephart, a senior vice president of Sun in charge of the company’s corporate development and diversification program, and suggested that Sun might want to consider Becton as a possible acquisition. Lipper informed Kephart that 15% of Becton’s stock was available and that this initial block included 1,200,000 shares owned by Dickinson, 300-400,000 shares owned by Dunning, 400,000 shares owned by Lufkin, and 500,000 shares owned by the Chemical Fund, one of the Eberstadt-man-aged mutual funds. Lipper also advised Kephart that Sun would be able to acquire quickly an additional 10-20% of Becton stock. Kephart was aware of the rift between Dickinson and Becton’s management and learned of Becton’s public announcement in June of its desire to remain independent. At a meeting of Sun’s senior executives held in early December, Kephart mentioned Becton as a possible acquisition opportunity. A study of Becton and the health care industry in general was undertaken to determine the desirability of an investment in the company. After reviewing the results of this in-house study, Sun’s senior executives decided that the possibility of acquiring Becton should be explored more fully. Accordingly, a number of meetings were held between Dickinson’s and Sun’s representatives in late December 1977 and early January 1978 to discuss alternative strategies for acquiring Becton. Kephart was given a list of available holdings, including those of Dickinson, Dunning, and Lufkin. Kephart was already aware that a large percentage of Becton’s shares was held by institutions, and he was assured that the 500,000 shares of Becton stock held by the Funds and the Eberstadt-managed discretionary accounts were readily available to Sun. Four possible strategies were considered: (1) to seek shares sequentially, first from individuals, then from institutions; (2) to seek shares simultaneously from these two groups; (3) to tender immediately; and (4) to contact management directly. The consensus was that simultaneous purchases from large individual and institutional shareholders, undertaken with as much secrecy as possible, would be the best strategy. Sun would purchase the block held by Dickinson, Dunning, Lufkin and the Funds, and then would conduct a limited solicitation of Becton’s institutional holders to reach its target of acquiring 34% of the outstanding shares. This strategy would enable the acquisition to be carried out quickly and would permit Sun to acquire physical possession of the shares in the shortest possible time. Presentations made to Sun’s board of directors on January 5 indicated that a 15% block of the Becton’s shares held by four non-management persons were available and additional shares representing 10-20% of the outstanding stock could be readily acquired. Sun executives understood that the block of shares in question belonged to Dickinson, the Funds, Dunning, and Lufkin. On January 11, recommendations concerning an acquisition strategy were presented to Sun’s senior officials. On January 13, Sun’s Executive Committee approved the strategy of limited solicitation of large individual and institutional shareholders and authorized the purchase of approximately 34% of Becton’s outstanding shares, provided that the total expenditure not exceed $350 million. The transaction was contingent, however, upon Sun’s obtaining at least 25% (subsequently lowered to 20%) of the outstanding shares of Becton stock. Sun further agreed to a $700,000 fee to be divided equally between Eberstadt and Salomon, plus indemnification for all their out-of-pocket expenses, including attorneys’ fees, due and payable upon the acquisition of 20% of the shares. The offer proposed a two tier price structure — a higher price of $45 per share with no recourse and a lower figure of $40 per share with a right to receive the highest price paid to any subsequent solicitee. To complete the first step in effecting the acquisition, on January 14,1978, Lipper and Zeller went to Dickinson’s hospital room and formally presented Sun’s proposal to him. Lipper’s brother, Jerome Lipper, was also present. Dickinson was told that the matter must be kept confidential and that Sun was the purchaser. After the price options were outlined, Dickinson indicated that he was ready to accept the $45 price but only on the condition that the proposal would be presented to Dunning as well. After guaranteeing Dunning’s discretion, Dickinson called Dunning in Baltimore and informed him that Salomon and Eberstadt had presented him with an attractive proposal for the sale of his Becton stock and that he was conditioning his acceptance on the extension of the same offer to Dunning. Dickinson arranged for Dunning to meet with Zeller and Lipper in Baltimore on the following day. Kenneth Lipper then made the same offer given to Dickinson to Dickinson’s daughter, Ann Dickinson Turner, who was visiting her father in the hospital. At the request of Jerome Lipper, Turner-subsequently delivered her shares and those sold by her father to Sun in New York. On January 15, Kenneth Lipper and Zel-ler met with Dunning in Baltimore and extended to him the same offer that they presented to Dickinson. Dunning responded favorably to the proposal and promised to advise them after he conferred with his two brothers and their co-trustee. Sun later purchased about 110,000 shares from each of the three Dunning trusts, for a total of 329,849 shares (1.7%). On January 16, Kenneth Lipper and another representative of Salomon, met with Lufkin and made him the same offer extended to both Dickinson and Dunning. Although the identity of the purchaser was not disclosed, he was told that Dickinson favored the transaction and that the purchaser was an appropriate company. Luf-kin soon learned, however, that Sun was the purchaser. Lufkin indicated that he preferred the $45 price and was confident that he could commit the 93,000 shares of Becton stock that he and his partner, Edward L. Scarff, received after Becton acquired the partnership’s interest in a kidney dialysis company. Moreover, Lufkin stated that while he “could not speak for” Richard Drake, Charles Willock, and Robert Smith, the other three principals of the dialysis company who received Becton stock as a result of the takeover, he expected that they would tender their shares. Lufkin immediately telephoned Scarff, who promptly agreed that the partnership shares should be sold at the $45 price. In addition, Scarff promised to contact Richard Drake, Charles Willock, and Robert Smith, and inform them that they had the opportunity to sell their Becton stock at $45 per share to Sun. On January 17, Scarff collected the shares of the three other individuals, receiving their signatures on purchase agreement contracts and on their voting proxies. Scarff then flew to New York to deliver these shares, those of the partnership, and the executed contracts to Sun. Eberstadt M & D was also offered the same proposal extended to Dickinson, Dunning, and Lufkin. On January 16, a representative of Eberstadt M & D recommended the $45 price to the director of the Funds and of the Eberstadt-managed discretionary accounts. Both groups of directors accepted this offer. With the favorable response from Dickinson, Dunning, Lufkin, and the Funds, the time was ripe for Sun to commence the second stage of its plan for acquiring 34% of the outstanding stock of Becton. At 4:00 P.M. on January 16, the Sun solicitation team met in the trading room at Salomon’s New York offices and began telephone solicitations of additional tenders from institutional investors holding large blocks of Becton stock. The team worked in pairs of one caller and one lawyer, who monitored the caller’s side of the conversation. The caller solicited offers to sell Becton stock to an anonymous purchaser from at least 20 individuals representing 30 institutions, offering the same two-tier price structure as was extended to Dickinson, Dunning, Luf-kin, and Eberstadt M & D. Each solicitee was told that a non-disclosed purchaser was looking for 20% of Becton’s stock; that no transaction would be final unless 20% of the shares were acquired; that the $40 option could be accepted without fear of losing the opportunity to obtain a higher price in the event shares were later bought at a higher figure; and that the purchases necessary to reach the desired 20% goal were rapidly being made and that a hurried response was therefore essential. Each solicitee was asked to respond within one hour or less, although some were allowed to wait until the next day. Sun was identified as the purchaser to a few institutions, but in most cases, the purchaser’s specific identity was not revealed. By 5:35 P.M., Kephart of Sun was advised that verbal commitments reached 20%, and Kephart was given authorization to seal the bargain with the institutions that had agreed to tender their shares. The closing price on the New York Stock Exchange for Becton shares on January 16 was $32% per share. Thus, Sun paid a premium of $12% per share over market price to those stockholders which accepted the $45 option. Before the end of the evening, Sun officials had realized their objective of obtaining at least 34% of Becton’s outstanding shares. On January 17 and 18, couriers were dispatched throughout the country to pay for the stock, to obtain signatures or collect prepared purchase agreements, to take physical possession of the stock certificates, and to have solicitees sign powers of attorney to allow Sun to vote their proxies. On January 17, Salomon representatives contacted officials of the New York Stock Exchange and convinced them to halt trading in Becton stock on the ground that an unidentified client would be filing a statement pursuant to Section 13(d) filing two days later, on January 19. Dickinson and Turner, his daughter, also filed separate Section 13(d) statements on January 19. On January 24, the day after the trading ban on Becton stock was finally lifted, the Dunning trusts filed Schedule 13(d) statements. Sun’s lightning strike triggered litigation starting on January 23, 1978. In his first opinion, Judge Carter ruled that Sun had made a tender offer without the requisite filings in violation of Section 14(d), 15 U.S.C. § 78n(d) (1976). Sun agreed to divest itself of its stake in Becton by issuing debentures of 10-25 years maturity which will be exchanged or redeemed for Sun’s Becton shares. This agreement, along with the settlement of various class action claims, was approved by Judge Carter on July 31,1980, and upheld by this court in an unpublished order, Wellman v. Dickinson, 647 F.2d 163 (2d Cir. 1981). Sun’s liability under Section 14(d) is not at issue in this appeal. DISCUSSION Section 13(d) of the Securities Exchange Act of 1934 requires a group that has acquired, directly or indirectly, beneficial ownership of more than 5% of a class of a registered equity security, to file a statement with the SEC, disclosing, inter alia, the identity of its members and the purpose of its acquisition. The central question on appeal is whether the district court erred in finding that Dickinson joined a group holding beneficial ownership of approximately 13% of the outstanding shares of Becton, and in finding that the members of this group agreed to dispose of the Becton stock under their control but failed to disclose this fact pursuant to Section 13(d). A group, under Section 13(d)(3), 15 U.S.C. § 78m(d)(3) (1976), is defined as an aggregation of persons or entities who “act .. . for the purpose of acquiring, holding or disposing of securities.. . . ” The statute contains no requirement, however, that the members be committed to acquisition, holding, or disposition on any specific set of terms. Instead, the touchstone of a group within the meaning of Section 13(d) is that the members combined in furtherance of a common objective. Bath Industries, Inc. v. Blot, 427 F.2d 97, 111 (7th Cir. 1970). See also Corenco Corp. v. Schiavone & Sons, Inc., 488 F.2d 207, 217 (2d Cir. 1973); Texasgulf Inc., v. Canada Development Corp., 366 F.Supp. 374, 403 (S.D.Tex.1973). Of course, the concerted action of the group’s members need not be expressly memorialized in writing. Securities and Exchange Commission v. Savoy Indus., Inc., 587 F.2d 1149, 1163 (D.C.Cir.1978), cert. denied, 440 U.S. 913, 99 S.Ct. 1227, 59 L.Ed.2d 462 (1979). Dickinson contends that plaintiffs have not demonstrated that he entered into a formal or informal agreement with any other person to dispose of his Becton stock, or that the purported members of the Section 13(d) group had beneficial ownership of sufficient Becton stock to form a Section 13(d) group with him. In evaluating Dickinson’s contentions, we must sift through the record to determine whether there is sufficient direct or circumstantial evidence to support the inference of a formal or informal understanding between Dickinson and others holding beneficial ownership of more than 5% of Becton stock for the purpose of disposing of the shares under their control. See id. The evidence in this ease supports the district court’s determination that as part of an effort to effectuate a shift in the corporate control of Becton, Dickinson and others holding beneficial ownership of approximately 13% of the company’s outstanding stock, reached an understanding to act in concert in disposing of their shares, but failed to disclose this fact as required by Section 13(d). Ample evidence supports the district court’s finding that Dickinson, Eberstadt, Eberstadt M & D, Lufkin, and Dunning “were all part of a group formed to dispose of their shares to aid a third party acquisition of a controlling interest in [Becton].” Wellman v. Dickinson, supra, 475 F.Supp. at 830. In reaching its conclusion that an express or implied understanding existed between the group members, the district court relied to a great extent on the representations made by Dickinson and his representatives from Salomon and Eberstadt to potential purchasers concerning the availability of the shares controlled by Dickinson, Dunning, Lufkin, Eberstadt, and Eberstadt M & D. One vivid example of testimony concerning the assurances made by Dickinson’s representatives to potential purchasers is that of William LaPorte, chairman of the board of directors of American Home Products Corporation, one of the companies approached with the Becton takeover proposal. LaPorte testified at trial that Kenneth Lipper of Salomon called to inform him that Dickinson was seeking a company interested in merging with Becton and that 16-17% of the outstanding shares were readily available for sale. Specifically, Lip-per indicated, according to LaPorte, that Eberstadt controlled 500,000 shares of Bec-ton and that the shares controlled by Dickinson and Dunning were available and would “go with [the] deal”. John Whitehead, an investment banker for Monsanto Company, another corporation offered the Becton takeover proposal, also testified that Dickinson and his representatives provided assurances concerning the availability of outstanding shares of Becton. Whitehead testified at trial that he was asked “whether Monsanto was interested in buying around 3,000,000 shares [of Becton]” and that the 3,000,000 figure was composed in part of 1,200,000 shares controlled by Dickinson and his family and 1,300,000 shares controlled by Dickinson’s friends and associates. Moreover, Whitehead testified that Dunning was named as a principal owner of the latter group of shares. Dickinson contends that the representations made by him and his representatives to potential purchasers are not probative of an understanding among the group members because the statements were simply “predictions” as to which Becton shareholders would sell. We reject Dickinson’s claim and conclude that, in light of all the facts, the district court could reasonably infer from the evidence that assurances, not mere predictions, were made by the group. See Securities and Exchange Commission v. Parklane Hosiery Co., Inc., 558 F.2d 1083, 1086 (2d Cir. 1977). Additional direct and circumstantial evidence supports the district court’s finding of an agreement between Dickinson, Eberstadt, Eberstadt M & D, Dunning, and Lufkin. The record clearly demonstrates that Dickinson aggregated his family’s holdings of 1,200,000-1,300,000 shares of Becton stock and contacted Eberstadt and Salomon for the purpose of finding a corporation acceptable to him that would be interested in buying his substantial Becton holdings.Dickinson solicited Eberstadt to assist in his search for a buyer, aware that the Eberstadt-controlled discretionary accounts held 52,175 of Becton stock (.27%) and that the Funds managed by Eberstadt M & D held 443,200 shares (2.33%). It is conclusively established that Eber-stadt agreed to join Dickinson’s effort to interest a corporate purchaser in a takeover or partial takeover of Becton. Executives of Eberstadt were apprised that the brokerage house’s fee of $350,000 was contingent on its successful delivery of 20% of the Becton stock to Sun. In an effort to reach this goal, representations concerning the number of group shares attributable to Eberstadt and Eberstadt M & D repeatedly included the discretionary account shares. Moreover, actions taken in connection with Sun negotiations indicate that prior to the receipt of Sun’s offer, a determination had already been made to sell the shares held by the discretionary accounts as part of the total shares of the group. With respect to Eberstadt M & D, substantial evidence supports the district court’s finding that it also committed itself to the endeavor of effectuating a shift in the corporate control of Becton. Robert Zeller served as both chief executive officer of Eberstadt and vice-chairman of Eberstadt M & D. Moreover, Eberstadt owned 75% of Eberstadt M & D. Dickinson contends that this finding is erroneous because the court refused to credit the testimony of executives of Sun who stated that Zeller of Eberstadt had disclaimed authority to direct the disposition of shares held by the Funds and that the executives had believed these disclaimers. The court properly discredited this testimony in light of the fact that the notes of these executives taken during their meetings with Dickinson’s representatives reflect the executives’ understanding that the Funds’ shares managed by Eberstadt M & D were available for purchase. Moreover, the individuals who met with Zeller and Lipper, despite Zeller’s silence or disclaimer, departed from the meeting convinced that the shares held by the Funds were available with those of Dickinson, Dunning, and Lufkin. “Indeed, Lipper would tell the prospective acquisition clients that Chemical Fund was the bellweather of the institutions holding large blocks of [Becton] stock and that it would sell for the right price, implying that the others would follow suit. Zeller would agree to this statement.” Wellman v. Dickinson, supra, 475 F.Supp. at 828. The evidence also supports the inference drawn by the district court that from the beginning, Dunning was a member of the undisclosed group formed to dispose of its shares of Becton. Dickinson kept Dunning abreast of any progress made in the search for a corporation interested in taking over Becton. Moreover, Dunning’s name was mentioned as one of the prospective sellers of Becton stock to nearly every company solicited by Dickinson’s representatives. In addition, when Lipper and Zeller formally presented Sun’s offer to Dickinson in his hospital room on January 14, Dickinson said that he would be interested only if the same offer were extended to Dunning. Dickinson contacted Dunning from his hospital room and arranged for Zeller and Lipper to meet with Dunning on the following day. Finally, the evidence as to Lufkin’s participation with Dickinson supports the conclusion that Lufkin was a full participant in the search for a purchaser to take over Becton. On November 10,1977, Lufkin met with Dickinson, Kenneth Lipper of Salo-mon, and Jerome Lipper. Lufkin, according to Dickinson, informed them that “he represented a stock holding in [Becton] that grew out of the acquisition by [Becton] of a company on the West Coast”, and that he was concerned over the recent internal difficulties at Becton. Lufkin stated that he was “very much in [Dickinson’s] corner”. Thereafter, Dickinson’s representatives always included the approximately 400,000 shares held by the Lufkin partnership and Drake, Willock, and Smith among those who could be counted on as willing sellers. In addition, like Dickinson, his daughter, Dunning, and Eberstadt, the Lufkin partnership and the three other individuals received their offers prior to the extension of formal offers to other solicitees, and Lufkin appears to have been told the identity of the purchaser. Dickinson, Dunning, Eberstadt, Eberstadt M & D, and Lufkin were linked by a desire to profit from a shift in the corporate control of Becton. The evidence clearly supports the district court’s finding that in an effort to achieve their common objective, Dickinson, Eberstadt, Dunning, Eberstadt M & D and Lufkin formed a group to dispose of the Becton shares under their control. Dickinson also contends that the district court erred in finding that Eberstadt, Eber-stadt M & D, Dunning and Lufkin held beneficial ownership of sufficient Becton stock to form a Section 13(d) group with him because they possessed “the power to commit [Becton] shares to the group purpose of effectuating a shift in corporate control”. Wellman v. Dickinson, supra, 475 F.Supp. at 829 (emphasis supplied). Dickinson contends that control over present voting power should be the sole determinant of beneficial ownership and that the power to dispose of stock is not a relevant consideration. We reject Dickinson’s argument. Although voting control is alone sufficient to support a finding of beneficial ownership, it need not be the only indicium. See Rule 13d-3,17 C.F.R. 240.13d-3 (1981). A rule that beneficial ownership can be established only by proof of voting control would exclude from the coverage of Section 13(d) a range of conduct that Congress clearly intended should be covered. Section 13(d) was designed to alert investors in securities markets to potential changes in corporate control and to provide them with an opportunity to evaluate the effect of these potential changes. GAF Corp. v. Milstein, 453 F.2d 709, 717 (2d Cir. 1971), cert. denied, 406 U.S. 910, 92 S.Ct. 1610, 31 L.Ed.2d 821 (1972). The power to dispose of a block of securities represents a means for effecting changes in corporate control in addition to the possession of voting control. Moreover, Congress intended beneficial ownership to mean more than voting control when it specifically included within the definition of “person[s]” subject to Section 13(d), a “group” acting in concert for the “purpose of . .. disposing of securities of an issuer”. 15 U.S.C. § 78m(d)(3) (1976). In addition, the narrow construction of the term “beneficial ownership” requested by Dickinson conflicts with the legislative history of Section 13(d)(3). Both the Senate and House Reports state: “This provision would prevent a group of persons who seek to pool their voting or other interests in the securities of an issuer from evading the provisions of the statute because no one individual owns more than ... [5] percent of a class of securities at the time they agreed to act in concert .... This provision is designed to obtain full disclosure of the identity of any person or group obtaining the benefits of ownership by reason of any contract, understanding, relationship, agreement or other arrangement.” S.Rep.No. 550, 90th Cong., 1st Sess. 8 (1967); H.R.Rep.No. 1711, 90th Cong.; 2d Sess. 8-9 (1968), reprinted in [1968] U.S. Code Cong. & Admin.News 2811, 2818 (emphasis supplied). The evidence clearly supports the district court’s findings that the members of the group possessed the power to commit sufficient shares of Becton stock to satisfy the 5% holding requirement of Section 13(d). With respect to the discretionary accounts managed by Eberstadt M & D, the facts support the conclusion that Eberstadt controlled the disposition of the Becton shares held in these accounts. Although Zeller, chief executive officer of Eberstadt and vice chairman of Eberstadt M & D, did not personally handle the discretionary accounts, his subordinate, Schiefferdecker, managed these accounts. Schiefferdecker was informed of the nature of Zeller’s activities on behalf of Dickinson and the fact that Eberstadt’s fee for the Sun transaction was contingent on its successful delivery of 20% of Becton’s stock to Sun. Moreover, at trial counsel for Dickinson never objected to the propriety of counting these shares toward the 5% holding requirement of Section 13(d). Similarly, Eberstadt was always in a position to direct the disposition of the 443,200 shares of Becton stock held by the Funds. As the district court stated, “It would be blinking reality to find that Zeller, as chief executive of Eberstadt of which [Eberstadt] M & D was a subsidiary, was unable to make a binding commitment of [the Funds’] shares as a part of the Dickinson, Lipper, Zeller package.... ” Wellman v. Dickinson, supra, 475 F.Supp. at 830. The testimony of John Martin, an unaffiliated director of the Chemical Fund demonstrates that the directors of the Funds followed Eberstadt M & D’s recommendations as a matter of course. Martin stated, “I relied heavily on the M & D organization. They are professionals. They have the highest integrity. I have never had reason to doubt their judgment. They do a thorough job of analysis and research. They do not enter into recommendations lightly. Under the circumstances, I have the highest regard for Mr. Nilsen [vice president of Eberstadt and Eberstadt M & D, vice president for investments of the Chemical Fund, and an inside director of the Surveyor Fund] and his judgment, and I rely heavily on his considered judgment, analysis and assurance on which to base my decision, which was really a concurrence of his judgment”. Id. at 814. Moreover, the procedures followed in the Sun transaction support the inference that Eberstadt M & D and thus, in turn, Eberstadt, controlled the sales decisions of the Funds. Although all the outside directors of the Funds were polled, Zeller had instructed his subordinates at Eberstadt not to disclose the identity of either the purchaser or the portfolio security offered for sale when polling the directors. These orders were followed. In addition, Eberstadt M & D failed to disclose that a director of Eberstadt had been working with Dickinson to sell his stock as part of a takeover of Becton. Accordingly, we are convinced that the directors routinely followed Eberstadt M & D’s recommendation in directing the disposition of the Becton stock, which permitted Eberstadt M & D to control the shares held by the Funds from the outset. The record also supports the findings of the district court that Lufkin had the power to commit the 93,000 shares that he held with his partner, Scarff, and the 326,545 shares held by Drake, Willock, and Smith, the three Becton shareholders who relied heavily on Lufkin’s partnership for investment advice. Lufkin testified that when he was formally presented with Sun’s offer, he felt confident he would be able to commit the Becton shares held by the partnership and that the three other shareholders would tender their Becton stock as well. Lufkin contacted Scarff, indicating that he was in favor of accepting Sun’s proposal. Scarff promptly relayed the offer to the three other shareholders, who immediately accepted. Finally, the inference drawn by the district court that Dunning had effective control over the disposition of the 344,849 shares of Becton stock held by the three Dunning trusts is properly supported by the record. Although Dunning served as one of the two co-trustees for one of the three trusts, each of his two brothers served as a co-trustee for one of the other two trusts. Dunning’s personal lawyer served as the other trustee for all three trusts. Moreover, numerous references in the record to those shares as “Dunning’s shares” reveal that even the persons most familiar with the facts believed that Dunning had the authority to dispose of the trusts’ shares. The final issue which we consider is the claim raised by class plaintiffs that Dickinson should be required to disgorge the over-the-market premium he received from the sale of his stock to Sun. Class plaintiffs argue that Dickinson violated his fiduciary obligation to Becton shareholders by his failure to advise the company’s management that he was searching for a corporation to purchase his Becton holdings, and by his acceptance of a premium for his shares from Sun without offering other shareholders an opportunity to participate. Accordingly, the class plaintiffs continue, Dickinson should not be permitted to retain any profits realized from the transaction. Similarly, class plaintiffs contend that they were deprived of the opportunity to share in the premium which Dickinson obtained as a result of his conduct in violation of Section 13(d), and that this provides an independent basis for ordering the remedy of disgorgement. We conclude that the district court properly rejected both of class plaintiffs’ grounds for damages. Although Dickinson violated Section 13(d), there is no evidence that Dickinson had breached any statutory or common law obligation he owed Becton’s stockholders. At the time he sold his stock to Sun, Dickinson was a director of Becton. This position, however, placed him under no fiduciary duty to reveal to the company’s management his intention to use his Becton holdings to effectuate a third-party takeover of the company, see Rochez Bros., Inc. v. Rhoades, 527 F.2d 880, 889 (3d Cir. 1975), or to refrain from promoting a takeover by a third-party. Dickinson also had no fiduciary obligation to other Becton stockholders to refuse the premium offered by Sun or to advise them that he was receiving a premium. Accordingly, Dickinson did not breach any fiduciary obligation owed to the class plaintiffs. See Haberman v. Murchison, 331 F.Supp. 180 (S.D.N.Y.1971), aff’d, 468 F.2d 1305 (2d Cir. 1972). With respect to class plaintiffs’ claim that Dickinson should be required to disgorge the over-the-market premium he received from the Sun purchases because of his failure to file a Section 13(d) statement, we find that plaintiffs have not demonstrated that their alleged injury was directly caused by the Section 13(d) violation or that there was any injury in fact. To recover damages for violation of the Securities Exchange Act, “the loss complained of must proceed directly and proximately from the violation claimed and not be attributable to some supervening cause”. Marbury Management, Inc. v. Kohn, 629 F.2d 705, 719 (2d Cir.) (emphasis in original), cert. denied sub nom., Wood Walker & Co. v. Marbury Management, Inc., 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980). Although Dickinson profited from the sale of his Becton shares, his profit was not derived from his failure to file a Section 13(d) statement. Moreover, Dickinson’s failure to file such a statement did not cause Sun to purchase his shares. Instead, Sun was interested in purchasing Dickinson’s shares for the reason that such a transaction enabled it to acquire a large block of Becton stock expeditiously by dealing with a limited number of individuals and institutions. Similarly, Dickinson’s failure to file a Section 13(d) statement did not prevent class plaintiffs from being afforded the opportunity to share in the premium offered by Sun. Since class plaintiffs have not demonstrated that their alleged injury was directly caused by the Section 13(d) violation, the district court properly denied their claims for damages against Dickinson. Affirmed. . Section 13(d) of the Securities Exchange Act of 1934, 15 U.S.C. § 78m(d) (1976), provides: “(1) Any person who, after acquiring directly or indirectly the beneficial ownership of any equity security of a class which is registered pursuant to section 781 of this title, or any equity security of an insurance company which would have been required to be so registered except for the exemption contained in section 781 (g)(2)(G) of this title, or any equity security issued by a closed-end investment company registered under the Investment Company Act of 1940, is directly or indirectly the beneficial owner of more than 5 per centum of such class shall, within ten days after such acquisition, send to the issuer of the security at its principal executive office, by registered or certified mail, send to each exchange where the security is traded, and file with the Commission, a statement containing such of the following information, as the Commission may by rules and regulations, prescribe as necessary or appropriate in the public interest or for the protection of investors — ” . Judge Carter dismissed all other claims against Dickinson, including those for alleged breaches of fiduciary duty and alleged violations of Section 10(b), 14(d), and 14(e) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78n(d), 78n(e) (1976). Wellman v. Dickinson, 475 F.Supp. 783, 837 (S.D.N.Y.1979). . The order entered on February 19, 1980 provided in pertinent part: . In September, 1977, Dickinson was terminated as a Becton employee, and in December, 1977, he was dropped from the list of directors to be elected at the Becton annual meeting in February. . Dickinson was a personal friend of William Salomon, a senior partner of Salomon Brothers. . At the time of the relevant events, F. Eber-stadt & Co. Managers & Distributors, Inc. was 75% owned by Eberstadt and 25% owned by the estate of Ferdinand Eberstadt. It subsequently became a wholly-owned Eberstadt company. . The district court indicated that 2.5 million shares represented approximately 16-17% of the total outstanding shares of Becton common stock. Wellman v. Dickinson, supra, 475 F.Supp. at 802. Since the total number of outstanding shares of common stock was 19 million, 2.5 million shares represent approximately 13% of the total shares. . In the face of hostile management, a conventional tender offer was not considered attractive and was eliminated immediately. It was felt that this strategy would lead to competitive bidding which would make the acquisition more expensive and would result in time consuming legal maneuvering. . At this level of stock ownership, Sun would be able to utilize equity accounting and would have sufficient holdings to have a significant voice in Becton’s future direction. . This statement must also be transmitted to the issuer of the security and to each exchange where the security is traded. . The Chemical Fund owned 413,200 shares (2.17%) and the Surveyor Fund owned 30,000 shares (.16%). . Rule 13d-3, 17 C.F.R. 240.13d-3 (1981), includes within the term beneficial owner any person “who, directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise has or shares: (1) Voting power which includes the power to vote, or to direct the voting of, such security; and/or, (2) Investment power which includes the power to dispose, or to direct the disposition of, such securities.” The SEC adopted Rule 13d-3 in February, 1977 but postponed its effective date until April 30, 1978, subsequent to the events involved in this case. Although Rule 13d-3 is not controlling, it serves as further evidence that the Commission had not intended beneficial ownership to be defined solely as present voting power. . Although, as we have indicated in footnote 12, Rule 13d-3, 17 C.F.R. 240.13d-3 (1981), became effective subsequent to the relevant events involved in this case, we find it incisive that this Rule includes within the term beneficial owner any person “who ... has or shares ... [¡Investment power which includes the power to dispose, or to direct the disposition of such securities.” . Lufkin’s control of Drake’s, Willock’s, and Smith’s shares does not, however, make them members of the Section 13(d) group. . Class plaintiffs are stockholders who, as of the close of business on January 16, 1978, owned shares of Becton common stock not sold to Sun, and debenture holders who owned 4⅛ convertible debentures due in 1988. The class consists of approximately 13,000 Becton shareholders who hold 12,706,845 shares and 889 debenture holders who, if their bonds were converted to stock, would hold 225,840 shares. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:

songer_appel1_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 appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). UNITED STATES of America, Plaintiff-Appellee, v. David RATKE and Monroe Caine, Defendants-Appellants. No. 14993. United States Court of Appeals Sixth Circuit. April 16, 1963. Milton A. Bass, New York City (Bass & Friend, Solomon H. Friend, New York City, on the brief), for appellants. William H. Merrill, Chief Asst. U. S. Atty., Detroit, Mich. (Lawrence Gubow, U. S. Atty., Detroit, Mich., on the brief), for appellee. Before CECIL, Chief Judge, and MILLER and O’SULLIVAN, Circuit Judges. PER CURIAM. Defendants-Appellants, David Ratke and Monroe Caine, were convicted by a jury of violation of Title 18 U.S.C.A. § 1341 (obtaining money by means of false pretenses, etc.). Their motions for direction of acquittal had been denied and, after verdict, their motions for judgment of acquittal notwithstanding the verdict and for a new trial were likewise denied. Judgments were entered upon the verdict. David Ratke was sentenced to prison for a term of one and a half years and fined a total sum of $3,000.00. Monroe Caine was sentenced to prison for one year and fined a total sum of $2,000.00. Among other grounds asserted by appellants for reversal are their claims that there were errors in the District Judge’s charge to the jury, and in his rulings on the admissibility of evidence. We agree. Because the matters charged as giving rise to errors in the Court’s charge, and in the rulings on evidence, are not likely to arise upon a retrial, we deem it unnecessary to review the background to such claimed errors. We are satisfied, however, that the issues were never clearly presented to the jury either by the evidence or by the instructions of the Court. Appellants also attack the sufficiency of the evidence to support the jury’s verdict, and ask that we order that a judgment of acquittal be entered. The record before us lacks the clarity needed for adequate consideration of this asserted ground for reversal. The remedy which we may grant upon a reversal, based upon insufficiency of the evidence, is committed to our discretion. Title 28 U.S.C.A. § 2106; Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335; Brandt v. United States, 256 F.2d 79 (CA 6, 1958); United States v. Dunn, 299 F.2d 548, 555 (CA 6, 1962). We, accordingly, do not pass on this question, but choose to grant a new trial. Judgment reversed and a new trial ordered. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:

songer_appel1_7_5

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). In Re REQUEST FOR JUDICIAL ASSISTANCE FROM the SEOUL DISTRICT CRIMINAL COURT, SEOUL, KOREA. Young Sool SHIN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 77-1561. United States Court of Appeals, Ninth Circuit. June 13, 1977. James R. Frolik (argued), Frolik, Filley & Schey, Mark Horlings (argued), San Francisco, Cal., for petitioner-appellant. James L. Browning, Jr., U. S. Atty., Bruno A. Ristau (argued), Chief Atty. for Foreign Litigation Unit, Civil Division, Dept, of Justice, Washington, D. C., for respondent-appellee. Before MERRILL and HUFSTEDLER, Circuit Judges, and BONSAL, District Judge. Hon. Dudley B. Bonsai, U.S. District Judge of the Southern District of New York, sitting by designation. MERRILL, Circuit Judge: Young Sool Shin has taken this appeal from an order by the District Court of the Northern District of California commanding the Bank of Tokyo of California (now California First Bank) to produce certain bank records respecting appellant’s account with that bank. The order was issued in response to a request for judicial assistance issued by the Seoul District Criminal Court, Republic of Korea, pursuant to 28 U.S.C. § 1782. The request was transmitted by the Korean Embassy to the Department of State, and by the Department of State to the Department of Justice. It was presented to the court below by the United States Attorney, and the Department of Justice is here representing the Seoul District Criminal Court, and the United States is named herein as appellee. Section 1782 provides in part: “(a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal * * The principal question upon the merits of the appeal is whether the request was entitled to be honored by the district court under § 1782. 1. Jurisdiction The government does not here dispute the appealability of the order granting the request. We feel, however, that we should express our view that it was final and therefore appealable. In In re Letters Rogatory from City of Haugesund, Norway, 497 F.2d 378, 379-81 (9th Cir. 1974), we held that a district court order directing a witness to answer questions in response to a letter rogatory was not a final order because the court had not yet held the witness in contempt. Haugesund, however, is inapplicable because the order there was directed against a party to the suit in Norway for which the letter rogatory was issued. Here, the subpoena is directed against a bank, not the appellant who is the party of interest in the proceeding before the foreign tribunal. The bank is unlikely to suffer a finding of contempt to protect appellant’s rights. Under these circumstances, we conclude that the district court’s order is appealable. In re Letters Rogatory Issued by the Director of Inspection of the Gov’t of India, 385 F.2d 1017, 1018 (2d Cir. 1964). 2. Standing The government contends that since the order was directed to the Bank of Tokyo and relates to records of that bank which are not the property of appellant, appellant does not have standing to challenge the order. We disagree. While appellant may not have standing to challenge the disclosure of bank records on fourth or fifth amendment grounds, the question is whether judicial assistance should have been granted under the statute. The request warrant states that the records are sought in connection with criminal charges pending against appellant. The party against whom requested bank records are to be used has standing to challenge the validity of the order to the bank to produce the records. In re Letter Rogatory from the Justice Court District of Montreal, Canada, 523 F.2d 562, 563-64 (6th Cir. 1975). 3. Authority of the Seoul Court to Make the Request A request for judicial assistance respecting appellant’s alleged criminal activity was first transmitted to the Department of State in June, 1976. The request (denominated a warrant) stated that it would expire on December 31, 1976, and explained that under Korean law, upon expiration, a new warrant would have to be issued. The request was duly transmitted to the Department of Justice, presented to the court below by the United States Attorney, and a subpoena duces tecum was issued. Appellant vigorously sought to quash the subpoena and hearings were had before a court commissioner who ultimately ruled in appellant’s favor that the request for assistance should be denied. In January, 1977, the government moved the district court for review of the commissioner’s ruling and appellant opposed the motion, in large part on the ground that the Korean request had expired. In February, a supplemental request for judicial assistance was received from Korea and filed with the district court. It was identical to the earlier request, except for an expiration date of June 30, 1977. Hearing by the district court was had and the district court ordered that the request be honored. It is from that order that this appeal was taken. In the meantime proceedings against appellant in the Seoul trial court had been concluded, and an appeal had been taken to the Appellate Division of the Seoul District Criminal Court. Appellant’s principal contention on appeal is that the court making the second request, having concluded its trial, was without jurisdiction over the controversy in connection with which the bank records were sought, and thus was without jurisdiction to make the request; that under these circumstances it was error or abuse of discretion to honor the request. Under the statute the only restrictions explicitly stated are that the request be made by a foreign or international tribunal, and that the testimony or material requested be for use in a proceeding in such a tribunal. This court also has held that the investigation in connection with which the request is made must relate to a judicial or quasi-judicial controversy. In re Letters of Request to Examine Witnesses from the Court of Queen’s Bench for Manitoba, Canada, 488 F.2d 511, 512 (9th Cir. 1973). There is no question but that such conditions are met here. The question raised by appellant is whether a tribunal that has already entertained trial of the controversy and thus is aware of the issues presented and of what evidence would be relevant to those issues, can, under Korean law, request assistance on behalf of the tribunal where review is now pending. In our judgment our federal courts, in responding to requests, should not feel obliged to involve themselves in technical questions of foreign law relating to subject-matter jurisdiction of foreign or international tribunals, or the admissibility before such tribunals of the testimony or material sought. This is not to say that jurisdiction of the requesting court is never an appropriate inquiry. If departures from our concepts of fundamental due process and fairness are involved, a different question is presented— one that is not presented here and which we do not reach. A request for judicial assistance is an appeal to the discretion of the district court. In re Letters Rogatory from Tokyo Dist., 539 F.2d 1216, 1219 (9th Cir. 1976). Here it is not disputed that the Korean courts have a legitimate basis for the exercise of judicial authority over appellant and that a controversy is there entertained in which the records would be of use. We find no abuse of discretion in honoring the request under these circumstances. 4. Other Issues 28 U.S.C. § 1782 also provides in part: “A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.” Appellant contends that under California law a bank’s records, with respect to its customers, are the subject of a quasi-privilege which would serve to make applicable the quoted language. California law does not extend this far. In Valley Bank of Nevada v. Superior Court of San Joaquin County, 15 Cal.3d 652, 125 Cal.Rptr. 553, 554-555, 542 P.2d 977, 978-79 (1975), the Supreme Court of California held that the California Evidence Code did not provide a common-law privilege with respect to bank customer information; that privileges contained in the code are exclusive and that courts are not free to create new privileges as a matter of judicial policy. The court did, however, recognize that the state’s constitutional right of privacy served to afford limited protection to such records: the bank is to be deemed to have agreed not to divulge such information in absence of a court order. 125 Cal.Rptr. at 555, 542 P.2d at 979. Since production by the bank here would be in response to a court order, the California law of privilege is of no help to appellant. Appellant contends that assistance in criminal matters involving a foreign country’s currency control laws should, as a matter of policy, be rendered only if there exists a tax treaty between the United States and the requesting country. We reject this contention. It finds no support in the language of the Act or in its legislative history, nor has our attention been drawn to any judicial decision so holding. The fact that the Department of Justice here supports the giving of assistance, with the implicit approval of the Department of State, suggests to us that there is no executive policy supporting appellant’s position. All other contentions of appellant we find to be without merit. The order of the district court is affirmed. . We are given to understand that the appellate division court can, under Korean law, receive new evidence and thus that the records requested are for use in a proceeding still pending in a foreign judicial tribunal. . Appellant complains that the court below accelerated hearing on the request and refused to give consideration to an affidavit of a former Korean judge as to the state of Korean law, thus making it impossible for appellant effectively to establish lack of jurisdiction. In light of our views already expressed, this action was not prejudicial. . “Letters Rogatory in aid of criminal proceedings are authorized by 28 U.S.C. § 1782.” In re Letters Rogatory from Tokyo Dist., 539 F.2d 1216, 1219 (9th Cir. 1976). Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:

songer_r_bus

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Raymond O. SOPHER, John Kerestes, John A. Ramza, Michael F. Ryan and Matthew J. Tibbles, Defendants-Appellants. Nos. 15057, 15061. United States Court of Appeals Seventh Circuit. June 20, 1966. Rehearing Denied July 19, 1966. Frank Oliver, Maurice J. Walsh, Edward J. Calihan, Harry J. Busch, Jason E. Bellows, Sherman C. Magidson, Chicago, 111., for appellants. Edward Y. Hanrahan, U. S. Atty., John Peter Lulinski, John Powers Crowley, D. Arthur Connelly, Douglas G. Brown, Lawrence Jay Weiner, Asst. U. S. Attys., Chicago, 111., for appellee. Before DUFFY, SCHNACKENBERG and KNOGH, Circuit Judges. SCHNACKENBERG, Circuit Judge. Raymond 0. Sopher, John Kerestes, John A. Ramza, Michael F. Ryan and Matthew J. Tibbies, defendants, appeal from their convictions of a violation of 18 U.S.C. § 1951. They were tried by a jury and the court sentenced them to prison terms. Sopher was the mayor of Streator, Illinois, and his co-defendants were commissioners thereof. Count I of the indictment charged defendants with having obstructed interstate commerce by extortion and count II charged them with conspiracy to commit the offense alleged in count I, all in violation of the Hobbs Act, 18 U.S.C. § 1951. There was evidence tending to prove the following facts: On November 7, 1960, Charles H. Boender, a sales representative of Stan-nard Power Equipment Company, which was agent in Streator for Smith & Loveless, made a sales talk to said defendants on a proposed sewer project in that city. Whereupon Sopher asked Boender “what it was worth” to him to get the job. An unidentified commissioner stated that “it must be in cash”. On January 5, 1961, independent engineers Warren & Van Praag, Inc., submitted plans and specifications for the project, wherein Smith & Loveless was designated as the base bid supplier for the package lift stations. On March 28, 1961, in Boender’s presence, president Bowlby of Stannard thanked Sopher for the consideration being given Smith & Loveless equipment and expressed the hope that the company was going to be successful in doing business with the contratcor. Sopher replied that this was possible, provided they received in cash 10% of the contract or bid price in connection with such an agreement. In addition Sopher suggested that the price could be increased by $3,000 to take care of the internal revenue tax. However, Bowlby told Sopher that Stan-nard Company could not participate but that he would relate the proposition to Smith & Loveless. On April 10, 1961, Boender and Smith, managing director of Smith & Loveless, met in Streator. Being unable to locate Sopher, they called on defendant Keres-tes, who said he had explained to Boen-der previously that “we wanted 10 percent of your bid price to the contractor to have the city approve” the use of Smith & Loveless equipment. When Smith asked how “we might accomplish the matter of providing this money” Kerestes explained: “ * * * we want the cash, we want it tax paid, and it is your problem how you get it. * * * ” Finding Mayor Sopher at the city hall, Boender and Smith were told by him: “We want 10 percent of the bid price in cash.” While Smith made no commitment, he testified that he left Sopher with the impression that “I probably would [go along with the deal]”, thus leaving the matter in abeyance so that the Federal Bureau of Investigation could be contacted, which was done on April 11, 1961. On April 17, 1961, Farthing Brothers, general contractors, after having received bids from the subcontractors, made sealed bids on pump stations manufactured by Smith & Loveless, Chicago Pump Company and Tex-Vit. Farthing Brothers was the lowest bidder on the total sewage project. On April 19, 1961, Boender telephoned Sopher and asked whether he was satisfied with the arrangements made between Sopher and Smith. Sopher said that he was and that he would have to satisfy “the commissioners”. On June 7, 1961, a contract was entered into between the city and Farthing Brothers in which Smith & Loveless was the only subcontractor specifically named. Both Boender and Smith believed that Smith & Loveless received the contract because of the agreement to pay the 10% of its contract price of $30,868. On February 15, 1963, Smith & Loveless received its final payment from Farthing Brothers and three days later So-pher called Boender to arrange a meeting. On May 7, 1963, Smith, Sopher and his twelve-year-old daughter met in a room in a Chicago hotel. On Smith’s person federal agents had a hidden recording device, and $3,087 in identified money. The recorded conversation thereon is in conformity with the facts herein enumerated, culminating in Smith’s statement “ * * * well, I might as well give you the money,” (which he did). Federal agents then appeared, arrested Sopher and recovered the listed money. Whereupon Sopher contended the money received was a political contribution. 1. We hold that the evidence supports the charges in the indictment and that the indictment includes all elements of the offenses charged. As the Supreme Court said in Stirone v. United States, 361 U.S. 212, at 215, 80 S.Ct. 270, at 272, 4 L.Ed.2d 252 (1960): “ * * * It was to free commerce from such destructive burdens that the Hobbs Act was passed. United States v. Green, 350 U.S. 415, 420 [76 S.Ct. 522, 525, 100 L.Ed. 494].” and 361 U.S. at 218, 80 S.Ct. at 274, the court added: “ * * * there are two essential elements of a Hobbs Act crime: interference with commerce, and extortion. * * *» We agree with government counsel when they say that the conduct of defendants necessarily produced a fear of economic loss by Smith & Loveless. United States v. Kramer, 7 Cir., 355 F.2d 891, 897 (1966). We hold that the violations of the Hobbs Act charged in the indictment were supported by the proof in the record. 2. However, defendants contend that the transcript and tape recording of the conversation on May 7, 1963 between Smith and Mayor Sopher were statements producible under 18 U.S.C.A. § 3500. There were motions by the defense to strike the testimony of Smith, grant a mistrial, and to produce said statements, which were respectively denied. While the record indicates that the government turned over to the defendants various statements of witnesses in compliance with § 3500, it took the position below and also in this court that the court did not err in denying defendants’ motion for the production of the tape recording of the May 7, 1963 conversation and the transcript thereof. The district court took the position that § 3500 does not encompass the tape recording of that conversation. A § 3500 statement is a recorded recital of past occurrences made by a prospective prosecution witness. From its very nature, necessarily it is made after those events have taken place. If a prosecutor, in reliance on the statement, uses as a witness the maker thereof as a part of the government’s case, the statement must be produced for the use of defense counsel. But a concurrent tape recording of a conversation between the payer and the recipient of an alleged cash bribe is obviously of contemporaneous sounds. The result is a preservation of a conversation just as it was spoken. It is direct evidence relevant on the issue of the alleged guilt of the defendants on trial. Made when the allegedly extorted bribe money was being paid, the tape recording in this case is of the actual voices of the briber and the bribee. It is therefore not a recital of a past occurrence by a prospective witness and is not within the general purview of § 3500, Moreover, it does not fall within the technical requirements of paragraph (e) thereof, because it is not a written statement made and signed by a government witness or adopted or approved by him, nor is it a recording or transcription thereof which is a substantially verbatim recital of an oral statement by said witness to an agent of the government, contemporaneously recorded with the making of such oral statement. We hold that there was no error committed in the denial of the motions of defendants to strike Smith’s testimony and for an order for production of said statements, or to grant a mistrial. 3. During the government’s case in chief, Smith testified as to the May 7, 1963 conversation with Sopher at the Water Tower Inn. Sopher, as a defense witness, under cross-examination answered evasively when asked about statements contained in the recording attributed to him by Smith, who testified that he recognized Sopher’s voice when the playing of the tape was repeated. A transcript of the tape had been delivered by the government to defense counsel at their suggestion. The tape was played in their presence, but outside the presence of the jury and of any spectators, after the defendants severally and personally agreed to the procedure. Counsel for Sopher assumes in this court that “certain parts of the conversation as testified to by Sopher, were not on the tape” and he points out as “a possible explanation” that he reminded the jury that Smith controlled the operation of the recording device “and could” delete statements by Sopher which were not to his liking, by pushing the “off” button. Sopher’s counsel points out that the Federal Bureau of Investigation agent had instructed Smith in the mechanical use of the recording device. On rebuttal by the government, Smith testified that the tape recording fully, truly and accurately portrayed the conversation with Sopher on the occasion in question. He further testified that only general instructions regarding the operation of the device were given. Moreover, the lack of a basis for the attack on the reliability of the tape was acknowledged by counsel for Sopher, when he then stated: “Vis-á-vis my comments just before the recess, I should like the jury to understand that in my opinion the record will not sustain the inference that the machine which Mr. Smith had fastened to his body on May 7, 1963, was in fact turned on or off by Smith during that conversation, and I think it also will not sustain the inference that there was matter on that tape which tended to corroborate Mayor So-pher’s version of the conversation but which was not stipulated to.” As a matter of fact, our attention has not been directed to any conversation on the occasion in the Water Tower Inn which the tape failed to record. It is therefore improper for us to speculate what would be missing from the record if Smith had arrested the operation of the machine temporarily at any time. 4. Defendant Kerestes contends that the court erred in failing to grant him a severance from Sopher, on the ground that the latter had made admissions and statements tending to implicate Kerestes, and also that he was unable in a joint trial with Sopher to compel effective testimony from his co-defendant. We fail to find sufficient basis in the record for reversing, especially as all defendants were charged as members of a conspiracy under count II of the indictment. Certainly the matter of a severance was within the sound discretion of the district judge and there is nothing in the record to indicate an abuse of such discretion when the motion for severance was overruled. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954). We find no other ground advanced by Kerestes for a reversal sufficient to justify that action. 5. Under all the circumstances shown by the record, we hold that the court properly denied the respective motions for severance, judgment of acquittal, mistrial and a new trial by defendants Ram-za, Ryan and Tibbies. We have considered their contentions that there was a fatal variance between the indictment and the proof. Their counsel reason that the indictment alleged defendants threatened Smith & Loveless, Inc. that its bid would not be accepted unless it agreed to make a payment to them, whereas the evidence showed that Smith & Loveless only made a proposal to the general contractor for the work. We find there was evidence tending to prove that defendants’ conduct necessarily produced a fear of economic loss by Smith & Loveless. This evidence is sufficient to support the jury’s verdict, on the theory that money had been extorted by defendants by fear, induced by threats that a bid of the contractor would not be accepted unless Smith & Loveless agreed to pay 10% of the bid price, thereby affecting interstate commerce. 6. We have examined the instructions and considered the objections thereto raised by defendants in this court. We find the objections not well taken. 7. While there is a criticism of the action of the trial court in what counsel for defendants Ramza, Ryan and Tibbies say was a reprimand of Sopher’s trial counsel, our reading of the entire transcript convinces us that it was not prejudicial to the defendants in any way. 8. Defendants Ramza, Ryan and Tibbies contend that the court committed error in admitting in evidence conversations at the May 7, 1963 meeting between Sopher and Smith which were made “after the completion of the conspiracy.” However, we do not agree that the con-, spiracy had ended when these conversations took place. The conspiracy was still in effect when the meeting took place, the money was obtained by Sopher, and each of the participating persons (Sopher and Smith) continued in their discussion as to the payment of the money to Sopher and its subsequent disbursement to the other defendants in their respective shares. The conspiracy did not terminate until the arrest of Sopher. For all these reasons, the judgments from which these appeals were taken are affirmed. Judgments affirmed. . 24 Ill.Rev.Stat.1965, art. 4. . § 3500(e) The term “statement”, as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means— (1) a written statement made by said witness and signed or otherwise adopted or approved by him; or (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement. * * * Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:

sc_lcdispositiondirection

A

What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations TAYLOR v. KENTUCKY No. 77-5549. Argued March 27, 1978 Decided May 30, 1978 Powell, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNAN, Stewart, White, Marshall, and Blackmun, JJ., joined. BreNNán, J., filed a concurring statement, post, p. 490. SteveNs, J., filed a dissenting opinion, in which RehNQUist, J., joined, post, p. 491. J. Vincent Aprile II argued the cause and filed briefs for petitioner. Guy C. Shearer, Assistant Attorney General of Kentucky, argued the cause for respondent. With him on the brief were Robert F. Stephens, Attorney General, Robert L. Chenoweth, Assistant Attorney General, and James M. Ringo, Assistant Deputy Attorney General. Mr. Justice Powell delivered the opinion of the Court. Only two Terms ago, this Court observed that the “presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U. S. 501, 503 (1976). In this felony case, the trial court instructed the jury as to the prosecution’s burden of proof beyond a reasonable doubt, but refused petitioner’s timely request for instructions on the presumption of innocence and the indictment’s lack of evidentiary value. We are asked to decide whether the Due Process Clause of the Fourteenth Amendment requires that either or both instructions be given upon timely defense motions. I Petitioner was tried for robbery in 1976, allegedly having forced his way into the home of James Maddox and stolen a house key and a billfold containing $10 to $15. During voir dire of the jury, defense counsel questioned the panel about their understanding of the presumption of innocence, the burden of proof beyond a reasonable doubt, and the fact that an indictment is not evidence. The prosecutor then read the indictment to the jury. The Commonwealth's only witness was Maddox. He testified that he had known petitioner for several years and had entertained petitioner at his home on several occasions. According to Maddox, petitioner and a friend knocked on his door on the evening of February 16, 1976, asking to be admitted. Maddox refused, saying he had to go to bed. The two left, but returned 15 minutes later. They forced their way in, hit Maddox over the head, and fled with his billfold and house key, which were never recovered. Petitioner then took the stand as the only witness for the defense. He admitted having been at Maddox’s home on other occasions, but denied going there on February 16 or participating in the robbery. He stated that he had spent that night with two friends sitting in a parked car, watching a rainstorm and a power failure. Defense counsel requested the trial court to instruct the jury that “[t]he law presumes a defendant to be innocent of a crime,” and that the indict-merit, previously read to the jury, was not evidence to be considered against the defendant. The court declined to give either instruction, and did not convey their substance in its charge to the jury. It did instruct the jury as to the Commonwealth’s burden of proving petitioner’s guilt beyond a reasonable doubt. Petitioner was found guilty and sentenced to five years of imprisonment. The Kentucky Court of Appeals affirmed, one judge dissenting. 551 S. W. 2d 813 (1977). Petitioner argued — and the Commonwealth denied — that he was entitled as a matter of due process under the Fourteenth Amendment to instructions that he was presumed to be innocent and that his indictment was not evidence of guilt. Both sides briefed federal decisions at some length. Nevertheless, the Court of Appeals rejected petitioner’s presumption-of-innocence contention by citing Kentucky case law for the proposition “that as long as the trial court instructs the jury on reasonable doubt an instruction on the presumption of innocence is not necessary.” Id., at 814. Without citing any authority, the court also declared that there was no merit in the position “that failure to give ... an instruction [on the indictment’s lack of evidentiary value] denies the defendant due process of the law.” Ibid. Because petitioner had not made a contemporaneous objection, the court refused to consider petitioner’s additional contention that the prosecutor’s closing argument had been improper. The Supreme Court of Kentucky denied discretionary review, and we granted certiorari, 434 U. S. 964 (1977). We now reverse. II “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, 156 U. S. 432, 453 (1895). The Coffin Court traced the venerable history of the presumption from Deuteronomy through Roman law, English common law, and the common law of the United States. While Coffin held that the presumption of innocence and the equally fundamental principle that the prosecution bears the burden of proof beyond a reasonable doubt were logically separate and distinct, id., at 458-461, sharp scholarly criticism demonstrated the error of that view, see, e. g., J. Thayer, A Preliminary Treatise on Evidence 551-576 (1898) (hereafter Thayer); 9 J. Wigmore, Evidence § 2511 (3d ed. 1940) (hereafter Wigmore); C. McCormick, Evidence 805-806 (2d ed. 1972) (hereafter McCormick). Nevertheless, these same scholars advise against abandoning the instruction on the presumption of innocence, even when a complete explanation of the burden of proof beyond a reasonable doubt is provided. Thayer 571-572; Wigmore 407; McCormick 806. See also ALI, Model Penal Code § 1.12 (1) (Proposed Off. Draft 1962). This admonition derives from a perceived salutary effect upon lay jurors. While the legal scholar may understand that the presumption of innocence and the prosecution’s burden of proof are logically similar, the ordinary citizen well may draw significant additional guidance from an instruction on the presumption of innocence. Wig-more described this effect as follows: “[I]n a criminal case the term [presumption of innocence] does convey a special and perhaps useful hint over and above the other form of the rule about the burden of proof, in that it cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced. In other words, the rule about burden of proof requires the prosecution by evidence to convince the jury of the accused's guilt; while the presumption of innocence, too, requires this, but conveys for the jury a special and additional caution (which is perhaps only an implied corollary to the other) to consider, in the material for their belief, nothing but the evidence, i. e., no surmises based on the present situation of the accused. This caution is indeed particularly needed in criminal cases.” Wigmore 407. This Court has declared that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial. See, e. g., Estelle v. Williams, 425 U. S. 501 (1976). And it long has been recognized that an instruction on the presumption is one way of impressing upon the jury the importance of that right. See, e. g., United States v. Thaxton, 483 F. 2d 1071, 1073 (CA5 1973); Reynolds v. United States, 238 F. 2d 460, 463, and n. 4 (CA9 1956); People v. Hill, 182 Colo. 253, 257-258, 512 P. 2d 257, 259 (1973); Carr v. State, 192 Miss. 152, 157, 4 So. 2d 887, 888 (1941); State v. Rivers, 206 Minn. 85, 93, 287 N. W. 790, 794 (1939); Commonwealth v. Madeiros, 255 Mass. 304, 316, 151 N. E. 297, 300 (1926); Reeves v. State, 29 Fla. 527, 542, 10 So. 901, 905 (1892). See also Holt v. United States, 218 U. S. 245, 253-254 (1910); Agnew v. United States, 165 U. S. 36, 51-52 (1897). While use of the particular phrase “presumption of innocence” — or any other form of words — may not be constitutionally mandated, the Due Process Clause of the Fourteenth Amendment must be held to safeguard “against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.” Estelle v. Williams, supra, at 503. The “purging” effect of an instruction on the presumption of innocence, Thaxton, supra, at 1073, simply represents one means of protecting the accused’s constitutional right to be judged solely on the basis of proof adduced at trial. Ill Petitioner argues that in the circumstances of this case, the purging effect of an instruction on the presumption of innocence was essential to a fair trial. He points out that the trial court’s instructions were themselves skeletal, placing little emphasis on the prosecution’s duty to prove the case beyond a reasonable doubt and none at all on the jury’s duty to judge petitioner only on the basis of the testimony heard at trial. Against the background of the court’s rather Spartan instructions, the prosecutor’s closing argument ranged far and wide, asking the jury to draw inferences about petitioner’s conduct from “facts” not in evidence, but propounded by the prosecutor. For example, he described the reasonable-doubt standard by declaring that petitioner, “like every other defendant who’s ever been tried who’s in the penitentiary or in the reformatory today, has this presumption of innocence until proved guilty beyond a reasonable doubt.” App. 45 (emphasis added). This statement linked petitioner to every defendant who turned out to be guilty and was sentenced to imprisonment. It could be viewed as an invitation to the jury to consider petitioner’s status as a defendant as evidence tending to prove his guilt. Similarly, in responding to defense counsel’s rhetorical query as to the whereabouts of the items stolen from Maddox, the prosecutor declared that “[o]ne of the first things defendants do after they rip someone off, they get rid of the evidence as fast and as quickly as they can.” Ibid, (emphasis added). This statement also implied that all defendants are guilty and invited the jury to consider that proposition in determining petitioner’s guilt or innocence. Additionally, the prosecutor observed in his opening statement that Maddox “took out” a warrant against petitioner and that the grand jury had returned an indictment, which the prosecutor read to the jury. Thus, the jury not only was invited to consider the petitioner’s status as a defendant, but also was permitted to draw inferences of guilt from the fact of arrest and indictment. The prosecutor’s description of those events was not necessarily improper, but the combination of the skeletal instructions, the possible harmful inferences from the references to the indictment, and the repeated suggestions that petitioner’s status as a defendant tended to establish his guilt created a genuine danger that the jury would convict petitioner on the basis of those extraneous considerations, rather than on the evidence introduced at trial. That risk was heightened because the trial essentially was a swearing contest between victim and accused. IV Against the need for a presumption-of-innocence instruction, the Commonwealth argues first that such an instruction is not required where, as here, the jury is instructed as to the burden of proof beyond a reasonable doubt. The trial court’s truncated discussion of reasonable doubt, however, was hardly a model of clarity. It defined reasonable doubt as “a substantial doubt, a real doubt.” Id., at 40. This definition, though perhaps not in itself reversible error, often has been criticized as confusing. See, e. g., United States v. Muckenstrum, 515 F. 2d 568, 571 (CA5), cert. denied, 423 U. S. 1032 (1975); United States v. Christy, 444 F. 2d 448, 450 (CA6), cert. denied, 404 U. S. 949 (1971). And even if the instruction on reasonable doubt had been more clearly stated, the Commonwealth’s argument ignores both the special purpose of a presumption-of-innocence instruction and the particular need for such an instruction in this case. The Commonwealth also contends that no additional instructions were required, because defense counsel argued the presumption of innocence in both his opening and closing statements. But arguments of counsel cannot substitute for instructions by the court. United States v. Nelson, 498 F. 2d 1247 (CA5 1974). Petitioner’s right to have the jury deliberate solely on the basis of the evidence cannot be permitted to hinge upon a hope that defense counsel will be a more effective advocate for that proposition than the prosecutor will be in implying that extraneous circumstances may be considered. It was the duty of the court to safeguard petitioner’s rights, a duty only it could have performed reliably. See Estelle v. Williams, 425 U. S., at 503. Finally, the Commonwealth argues that Howard v. Fleming, 191 U. S. 126 (1903), established that the Fourteenth Amendment does not require instructions on the presumption of innocence. In Howard, however, the trial court had instructed the jury to consider only the evidence and the law as received from the court. The argument in Howard was not that failure to give an explicit instruction on the presumption of innocence raised a danger that the jury might judge defendants on matters other than the evidence. Instead, plaintiffs-in-error relied on Coffin for the erroneous proposition that the presumption of innocence is “evidence” to be weighed in the accused’s favor. Brief for Appellants in Howard v. Fleming, O. T. 1903, Nos. 44 and 45, pp. 111-113. The Court had discarded this view some years before. See n. 12, supra. Thus, Howard held only that the accused is not entitled to an instruction that the presumption of innocence is “evidence.” It did not east doubt upon the additional function of the presumption as an admonition to consider only the evidence actually introduced, since such an instruction had been given. Y We hold that on the facts of this case the trial court’s refusal to give petitioner’s requested instruction on the presumption of innocence resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment. The judgment of conviction is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered. App. 19, 21. Id., at 19-21. Id., at 17. Id., at 23. Petitioner’s requested instruction on this point read as follows: “The law presumes a defendant to be innocent of a crime. Thus a defendant, although accused, begins the trial with a 'clean slate.’ That is, with no evidence against him. The law permits nothing but legal evidence presented before a jury to be considered in support of any charge against the accused. So the presumption of innocence alone is sufficient to acquit a defendant, unless you are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence in the case.” Id., at 53. This instruction is nearly identical to one contained in 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 11.14, p. 310 (3d ed. 1977). See also United, States v. Alston, 179 U. S. App. D. C. 129, 132-133, 551 F. 2d 315, 318-319 (1976); United States v. Cummings, 468 F. 2d 274, 280 (CA9 1972). Petitioner's proposed instruction on this point read as follows: “The jury is instructed that an indictment is in no way any evidence against the defendant and no adverse inference can be drawn against the defendant from a finding of the indictment. The indictment is merely a written accusation charging the defendant with the commission of a crime. It has no probative force and carries with it no implication of guilt.” App. 53. The trial court’s instructions, in their entirety, were as follows: “All right. These are your instructions as to the law applicable to the facts you’ve heard in evidence from the witness stand in this case. “Number one, you will find the defendant guilty under this instruction if and only if you believe from the evidence beyond a reasonable doubt all of the following: A. That in this county on or about February 16, 1976 and before the finding of the indictment herein, he the defendant stole a sum of money and a house key from James Maddox, 249 Rosewood, Frankfort, Kentucky; and B. in the course of so doing he used physical force on James Maddox. If you find the defendant guilty under this instruction you will fix his punishment at confinement in the penitentiary for not less than five nor more than ten years in your discretion. “Number two, if upon the whole case you have a reasonable doubt as to the defendant’s guilt you will find him not guilty. The term ‘reasonable doubt’ as used in these instructions means a substantial doubt, a real doubt, in that you must ask yourself not whether a better case might have been proved but whether after hearing all the evidence you actually doubt that the defendant is guilty. "Number three, the verdict of the jury must be unanimous and be signed by one of you as foreman. You may use the form provided at the end of these instructions for writing your verdict. “There is appended to these instructions a form with alternate verdicts, one of which you will use: A. We the jury find the defendant not guilty; B. We the jury find the defendant guilty under instruction number one and fix his punishment at blank years in the penitentiary.” Id., at 40-41. E. g., 3 Record 15, 86-87. E. g., id., at 56. Although the Commonwealth does not challenge our jurisdiction to entertain petitioner’s claims, we have examined the record and satisfied ourselves that jurisdiction exists. Petitioner’s "contemporaneous objection to the refusal of his request for an instruction on the presumption of innocence invoked "fundamental principlefs] of judicial fair play.” App. 51. This should have sufficed to alert the trial judge to petitioner’s reliance on due process principles. And in the face of petitioner’s exclusive, explicit reliance on the Fourteenth Amendment in the Kentucky Court of Appeals, the Commonwealth has not argued that he has forfeited his right to raise federal claims. The short opinion of the Kentucky Court of Appeals did not discuss federal decisions, relying instead on Kentucky authority. 551 S. W. 2d, at 813-814. This reliance on state law apparently was due to the fact that the highest court of Kentucky settled the issue for that State almost 50 years ago. See, e. g., Mink v. Commonwealth, 228 Ky. 674, 15 S. W. 2d 463 (1929). By way of contrast, the Court of Appeals quite explicitly refused to consider petitioner’s argument that he was prejudiced by improper prosecutorial comments, on the ground that petitioner’s failure to make a contemporaneous objection operated as a bar to appellate review. Thus, the Court of Appeals clearly denoted the one issue it refused to consider because of a procedural default. In view of both petitioner’s contemporaneous objection to the failure to give the presumption-of-innocence charge, and the Kentucky Court of Appeals’ apparent consideration of petitioner’s federal claim, we will not strain the record in an effort to divest petitioner of his federal forum at this late date. See Cicenia v. Lagay, 357 U. S. 504, 507-508, n. 2 (1958). The Kentucky court remanded for resentencing because of the trial court’s failure to order a statutorily required presentencing investigation. 551 S. W. 2d, at 814. The Coffin Court viewed the presumption of innocence as “an instrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created.” 156 U. S., at 459. As actual “evidence in favor of the accused,” id., at 460, it was distinguished from the reasonable-doubt standard, which merely described “the condition of mind produced by the proof resulting from the evidence in the cause.” Ibid. Professor Thayer ably demonstrated the error of this distinction, pointing out that the so-called “presumption” is not evidence — not even an inference drawn from a fact in evidence — but instead is a way of describing the prosecution’s duty both to produce evidence of guilt and to convince the jury beyond a reasonable doubt. Thayer 560-563. Shortly after the appearance of Thayer’s criticism, the Court, in a case in which the presumption-of-innocence instruction was given, retreated from its conclusion that the presumption of innocence is evidence to be weighed by the jury. See Agnew v. United States, 165 U. S. 36, 51-52 (1897). It is now generally recognized that the “presumption of innocence” is an inaccurate, shorthand description of the right of the accused to ^remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion | i. e., to say in this case, as in any other, that the opponent of a claim or charge is presumed not to be guilty is to say in another form that the proponent of the claim or charge must evidence it.” Wigmore 407. The principal inaccuracy is the fact that it is not technically a “presumption” — a mandatory inference drawn from a fact in evidence. Instead, it is better characterized as an “assumption” that is indulged in the absence of contrary evidence. Carr v. State, 192 Miss. 152, 156, 4 So. 2d 887, 888 (1941); accord, McCormick 806. Estelle v. Williams quite clearly relates the concept of presumption of innocence to the cognate requirements of finding guilt only on the basis of the evidence and beyond a reasonable doubt. 425 U. S., at 503. In this sense, it is possible to interpret the extended historical discussion of the presumption of innocence in Coffin v. United, States, 156 U. S. 432, 453-460 (1895), as supporting the conclusion that an instruction emphasizing for the jury the first of those two requirements is an element of Fourteenth Amendment due process, an essential of a civilized system of criminal procedure. See Johnson v. Louisiana, 406 U. S. 356, 360 n. 2 (1972). We do not suggest that such prosecutorial comments, standing alone, would rise to the level of reversible error, an issue not raised in this case. But they are relevant to the need for carefully framed instructions designed to assure that the accused be judged only on the evidence. As noted above, see supra, at 480-481, the trial court also refused petitioner’s request for an instruction that the indictment was not evidence. This permitted the prosecutor’s reference to the indictment to serve as one more extraneous, negative circumstance which may have influenced the jury’s deliberations. Because of our conclusion that the cumulative effect of the potential!}' damaging circumstances of this case violated the due process guarantee of fundamental fairness in the absence of an instruction as to the presumption of innocence, we do not reach petitioner’s further claim that the refusal to instruct that an indictment is not evidence independently constituted reversible error. While we do not necessarily approve of the presumption-of-innocence instruction requested by petitioner, it appears to have been well suited to forestalling the jury’s consideration of extraneous matters, that is, to performing the purging function described in Part II, above. The requested instruction noted that petitioner, "although accused, [began] the trial with a ‘clean slate.’ ” It emphasized that the law would permit "nothing but legal evidence presented before a jury to be considered in support of any charge against the accused.” See ABA Project on Standards for Criminal Justice, Function of the Trial Judge § 1.1 (a) (App. Draft 1972): “The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his own initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial. The only purpose of a criminal trial is to determine whether the prosecution has established the guilt of the accused as required by law, and the trial judge should not allow the proceedings to be used for any other purpose.” The trial court had given the following instructions: “Now, gentlemen, in the trial of this cause the court admonishes you to divest yourselves of any possible feeling or prejudice which you might have against the defendants as well as any sympathy that you might entertain for them on account of their misfortune, and try this case upon the law and the evidence as the court has endeavored to lay it down to you. When you do this you have responded to the high responsibilities which rest upon you as jurors. It matters not whether your verdict accords with public sentiment or not. You are supposed to be indifferent to any such influences and for such to influence you would be a failure to perform your duty. I need not say to you that the offense with which the defendants are charged is a grave one under the law, and if guilty they should be convicted, but while this is true they are entitled under the constitution and laws of your State to a fair and honest trial at your hands, and I feel sure that you will give them such." Record in Howard v. Fleming, O. T. 1903, Nos. 44 and 45, p. 120. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspecifiable Answer:

sc_partywinning

B

What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. IN RE ANDERSON No. 93-8312. Decided May 2, 1994 Per Curiam. Pro se petitioner Grant Anderson seeks an extraordinary writ pursuant to 28 U. S. C. § 2241 and requests permission to proceed in forma pauperis under this Court’s Rule 39. Pursuant to Rule 39.8, we deny petitioner leave to proceed in forma pauperis Petitioner is allowed until May 23, 1994, within which to pay the docketing fee required by Rule 38 and to submit his petition in compliance with this Court’s Rule 33. For the reasons explained below, we also direct the Clerk of the Court not to accept any further petitions for extraordinary writs from petitioner unless he pays the docketing fee required by Rule 38 and submits his petitions in compliance with Rule 33. Petitioner is a prolific filer in this Court. In the last three years alone, he has filed 22 separate petitions and motions, including 3 petitions for certiorari, 6 motions for reconsideration, and 13 petitions for extraordinary writs. Thirteen of these petitions and motions have been filed this Term. We have denied all of the petitions and motions without recorded dissent. We have also denied petitioner leave to proceed in forma pauperis, pursuant to Rule 39.8, on the last three occasions that he has submitted petitions for extraordinary relief. Like the majority of his previous submissions to this Court, the instant petition for habeas corpus relates to the denial of petitioner’s various postconviction motions by the District of Columbia Court of Appeals. The current petition merely repeats arguments that we have considered previously and not found worthy of plenary review. Like the three petitions in which we denied petitioner leave to proceed in forma pauperis, moreover, the instant petition is patently frivolous. The bulk of petitioner’s submissions have been petitions for extraordinary writs, and we limit our sanction accordingly. We have imposed similar sanctions in three prior cases. See In re Demos, 500 U. S. 16 (1991); In re Sindram, 498 U. S. 177 (1991); In re McDonald, 489 U. S. 180 (1989). For the reasons discussed in these cases, we feel compelled to bar petitioner from filing any further requests for extraordinary relief. As we concluded in Sindram: “The goal of fairly dispensing justice ... is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous requests. Pro se petitioners have a greater capacity than most to disrupt the fair allocation of judicial resources because they are not subject to the financial considerations — filing fees and attorney’s fees — that deter other litigants from filing frivolous petitions. The risks of abuse are particularly acute with respect to applications for extraordinary relief, since such petitions are not subject to any time limitations and, theoretically, could be filed at any time without limitation. In order to prevent frivolous petitions for extraordinary relief from unsettling the fair administration of justice, the Court has a duty to deny in forma pauperis status to those individuals who have abused the system.” 498 U. S., at 179-180 (citation omitted). So long as petitioner qualifies under this Court’s Rule 39 and does not similarly abuse the privilege, he remains free to file in forma pauperis requests for relief other than an extraordinary writ. See id., at 180. In the meantime, however, today’s order “will allow this Court to devote its limited resources to the claims of petitioners who have not abused our process.” In re Sassower, 510 U. S. 4, 6 (1993). It is so ordered. This Court’s Rule 39.8 provides: “If satisfied that a petition for a writ of certiorari, jurisdictional statement, or petition for an extraordinary writ, as the case may be, is frivolous or malicious, the Court may deny a motion for leave to proceed informa pauperis.” Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No Answer:

songer_numappel

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Roland D. PETTENGILL, Appellant, v. George VEASEY, Sgt., Cummins Unit, Appellee. No. 92-1511. United States Court of Appeals, Eighth Circuit. Submitted Dec. 15, 1992. Decided Jan. 12, 1993. Roland D. Pettengill, pro se. David B. Eberhard, Little Rock, AR, argued (Winston Bryant and David B. Eber-hard, on brief), for appellee. Before McMILLIAN, JOHN R. GIBSON and BEAM, Circuit Judges. McMILLIAN, Circuit Judge. Roland D. Pettengill, an Arkansas inmate, appeals from the final judgment entered in the District Court for the Eastern District of Arkansas adopting the findings and conclusions of the magistrate judge following an evidentiary hearing and dismissing Pettengill’s failure to protect and medical needs claims brought under 42 U.S.C. § 1983. For reversal appellant argues the district court erred in making its factual and legal determinations. For the reasons discussed below, we reverse and remand the case to the district court for further proceedings. In his complaint, Pettengill claimed that Sergeant George Veasey violated his Eighth Amendment rights by placing him in the exercise yard with a known enemy, failing to check his “enemy alert list,” and refusing to take him to the infirmary after the two inmates fought in the yard. Pet-tengill sought damages and declaratory and injunctive relief. Pettengill later amended his complaint as ordered by the magistrate judge. He reiterated his allegations and requested a jury trial. At the evidentiary hearing, Pettengill testified that on July 25,1989, while he was on 48-hour relief from punitive isolation, he told Veasey that he wished to go to yard call. He further testified that when Veas-ey came back later to take him to yard call, he saw inmate Jaskolka, asked Veasey if they were being placed on the yard together, and informed Veasey that Jaskolka was on his enemy alert list. Pettengill stated that Veasey gave him the choice of either entering the yard with Jaskolka or refusing his yard call. Faced with these options, Pettengill chose to enter the yard despite Jaskolka’s presence. Pettengill testified that Jaskolka struck him first, knocked him to the ground, and kicked him. Pettengill further testified that Veasey and Sergeant Virgil Rhodes, another guard on yard call, stopped the fight by pulling the two inmates apart. Pettengill testified that he expressed his desire to go to the infirmary to get an ice pack for his swollen right eye and to have the cut above his right eye cleaned to prevent infection, but Veasey refused. Pettengill felt he had a “right” to go to yard call. Pettengill also testified that Veasey did not check the enemy alert lists and could have easily placed him in the second yard or taken him to the yard on a different yard call. Finally, Pettengill testified that he received Band-Aids the night of the fight but he was never seen by a doctor although he completed several sick call slips. Inmate Lester Jacobs testified Pettengill told Veasey he and Jaskolka did not get along. Jacobs confirmed Pettengill’s testimony that Jaskolka rushed Pettengill, struck him first, and beat him to the ground. Jacobs testified that Jaskolka was waiting for an opportunity to “jump” Pet-tengill. Jacobs also testified that guards do not require inmates to go to yard call. Don Biles, Pettengill’s cellmate on the day in question, testified Pettengill came back to the cell with a knot on his head and his right eye was swollen shut. Biles stated that he did not see a whole lot of blood, but there was some present around a small cut in Pettengill’s right eyebrow. Biles confirmed Pettengill’s testimony that he asked to go to the infirmary. Biles testified, however, that “Veasey told him to hold his horses; [l]et me call the infirmary.” Biles further testified that Veasey called the infirmary and that the policy for this particular barracks was that, once the infirmary was notified, a nurse would usually come to the barracks. Biles did not know if Pettengill ever went to the infirmary- Sergeant Rhodes testified that he and Veasey escorted Pettengill to the yard and that Pettengill and Jaskolka were the last two inmates to be handcuffed before they brought the inmates inside from the yard. Rhodes, however, testified that Pettengill attacked Jaskolka. Rhodes also testified that Pettengill did not inform him that Jas-kolka was on his enemy alert list. He stated that if Pettengill had done so, he would have put Pettengill in the second yard. Rhodes further testified that Petten-gill did not mention going to the infirmary. Rhodes stated that Veasey told him that he would ask both Pettengill and Jaskolka if they needed to go to the infirmary. Veasey testified that Pettengill attacked Jaskolka first and that was why he charged Pettengill with a disciplinary rule violation—Pettengill was the aggressor. Veasey also testified that Pettengill never told him that Jaskolka was on his enemy alert list. Veasey stated he did not see any bruises, cuts, or blood, and Pettengill said he did not need to go to the infirmary. Veasey testified that if he had seen blood, he would have made Pettengill go to the infirmary. Veasey acknowledged that Jas-kolka and Pettengill are listed on each other’s enemy alert lists, but, due to the number of inmates, he stated that the guards rely on the prisoners to tell them who is on their enemy alert lists. The magistrate judge found that “it [was] more likely than not” that Rhodes, not Veasey, took Pettengill to the yard. The magistrate judge also found that Pet-tengill did not inform the guards that Jas-kolka was on his enemy alert list or seek to avoid Jaskolka, and Pettengill “took advantage of an opportunity to assault Jaskol-ka.” In addition, the magistrate judge found that while Pettengill may have been jostled in the encounter, he “was not injured to the degree that he testified, and ... there was no immediate need for medical treatment.” The magistrate judge concluded that no Eighth Amendment violation occurred and recommended dismissal. Pet-tengill objected to the magistrate judge’s view of the evidence and requested that the district court deny the recommendation and allow the case to proceed to trial. The district court adopted the recommendations and dismissed Pettengill’s claims. Because Pettengill requested a jury trial, we conclude that the magistrate judge erroneously made credibility determinations “resolving direct factual conflicts in favor of [Veasey] without assuming as true all facts supporting [Pettengill] which the evidence tended to prove and without giving [Pettengill] the benefit of all reasonable inferences.” See Henson v. Falls, 912 F.2d 977, 979 (8th Cir.1990) (magistrate judge must apply directed verdict standard if plaintiff demands jury trial). Resolving factual disputes in Pettengill’s favor and giving him the benefit of all reasonable inferences, reasonable jurors could have concluded that Pettengill reasonably feared for his safety, reasonably apprised prison officials of the existence of the problem and showed a need for protective measures. Therefore, we conclude that the district court erred in entering judgment for Veasey because a reasonable jury could have concluded that Veasey acted in violation of Pettengill’s constitutional rights. Similarly, we conclude the district court improperly resolved factual disputes as to Pettengill’s medical needs claim in favor of Veasey. Pettengill testified that he had a cut above his right eye, and that his right eye was swollen shut. Inmate Biles corroborated this testimony. Veasey testified he did not see any bruises, cuts, or blood. Pettengill testified that Veasey denied him access to medical care; Veasey testified that Pettengill refused medical care; inmate Biles testified that Veasey attempted to obtain medical care for Pettengill. Based on all of this conflicting testimony, however, the district court concluded that “[Pettengill] was not injured to the degree that he testified, and that there was no immediate need for medical treatment, and consequently, no failure to provide it.” Examining the evidence in a light most favorable to Pettengill, we conclude a reasonable jury could have found for Pettengill. Accordingly, we reverse and remand this case to the district court for further proceedings consistent with this opinion. Question: What is the total number of appellants in the case? Answer with a number. Answer:

songer_attyfee

A

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on attorneys' fees favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". John CUNNINGHAM, Appellant v. John F. ENGLISH et al., Appellees. No. 15033. United States Court of Appeals District of Columbia Circuit. Argued April 15, 1959. Decided June 10, 1959. Wilbur K. Miller, Circuit Judge, dissented. Messrs. Raymond R. Dickey, Washington, D. C., and Joseph M. Williamson, Urbana, 111., of the bar of the the Supreme Court of Illinois, pro hac vice, by special leave of court, for appellant. Mr. Robert Rolnick, Washington, D. C., also entered an appearance for appellant. Mr. Edward Bennett Williams, Washington, D. C., for appellees. Mr. Raymond W. Bergan, Washington, D. C., also entered an appearance for appellees. Mr. Thomas X. Dunn, Washington, D. C., for Board of Monitors. Mr. Martin F. O’Donoghue, Washington, D. C., was on the brief for Board of Monitors. Before Edgerton, Wilbur K. Miller and Fahy, Circuit Judges. FAHY, Circuit Judge. In this appeal, John Cunningham, one of the plaintiffs in the companion case of English v. Cunningham, 106 U.S.App. D.C.-, 269 F.2d 517, attacks the decree of February 9, 1959, primarily on the ground that the consent decree of January 31, 1958, upon which the later decree rests, is void. The contention is that the District Court did not have jurisdiction to approve the consent decree without first giving notice to all persons who were to be bound. This result is said to be required by Rule 23 of the Fed.R.Civ. P., 28 U.S.C.A. A contention is also made that failure to give notice led to a denial of due process. Rule 23, in pertinent part set forth in the margin, provides that “A class action shall not be dismissed or compromised without approval of the court,” and that when the right sought to be enforced for the class is joint or common “notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.” It seems clear enough that the rights sought to be enforced by the plaintiffs in the companion case are joint or common with the rights of members of the Teamsters and its subsidiary bodies, see Underwood v. Maloney, D.C.E.D.Pa. 1953, 14 F.R.D. 222, thus classifying the rights as within section (a) (1) of the Rule. Furthermore, notice of the proposed consent decree was not given to all members of the class until after it had been entered. We agree with District Judge Letts, however, that notice was not required under the Rule since the decree was not a dismissal or compromise of the action within the meaning of section (c) of the Rule. That the consent decree was not a dismissal goes without saying. And we think it not such a compromise as required advance notice. The Rule applies only to a final disposition of an action, either by dismissal or by compromise. It does not apply even to a final disposition by adjudication. As Judge Letts said, the consent decree “is not a final settlement of the essential issue but is interlocutory in nature.” It embodied a plan, and terms for carrying it out, which required a large measure of future conduct by the parties, leading toward an ultimate disposition of the litigation by the court itself. The rule makers had in mind something quite different, primarily stockholders’ derivative actions, where a stockholder-plaintiff might “sell out” other stockholders by disposing of the action by dismissal or compromise. See notes of the Advisory Committee on the Rules where reference is had to McLaughlin, Capacity of Plaintiff-Stockholder to Terminate a Stockholder’s Suit, 46 Yale L.J. 421 (1937). As the author states at 430: To allow a single stockholder or group of stockholders the power to make a private compromise of the corporate cause of action places a heavy reliance upon their judgment (assuming its exercise in good faith), and leaves the corporate claim (and the indirect rights of non-joining stockholders) at the mercy of individuals who have no hope of personal recovery even if the suit is prosecuted successfully * * * [OJbviously a wide door is opened to strike suits and collusive payments to stockholders which may rarely, if ever, be recovered by the corporation. See, also, Winkelman v. General Motors Corp., D.C.S.D.N.Y.1940, 39 F.Supp. 826, 831; Craftsman Finance & Mortgage Co. v. Brown, D.C.S.D.N.Y.1945, 64 F.Supp. 168,178; 3 Moore, Federal Practice, par. 23.24, at 3549 (2d ed. 1948); 2 Barron and Holtzoff, Federal Practice and Procedure § 570, at 185 (Rules ed. 1950). While the Rule must be given a fair application consistent with its language even if its framers had in mind something more limited, it is not to be given an application inconsistent with its purpose. No one has been closed out of the present litigation by a dismissal or compromise. The litigation continues. No member of the class has been barred from access to the court. Paragraph 14 of the consent decree obligates the Teamsters to pay the fees of counsel for plaintiffs, the amount being subject to the approval of the District Court. We think this provision is severable from the remainder of the consent decree. Notice should have been given to the membership before approval by a court of equity of this obligation upon union funds, even if not required by Rule 23. The amount of fees approved by the District Court is in dispute in litigation pending in this court, No. 14733, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Thomas J. Dodd, et al. The fees accordingly have not been paid. The solution, therefore, is to suspend this provision of paragraph 14 of the consent decree and to direct the District Court to (1) give notice with respect to it and (2) reconsider the provision in the light of the result of the notice. The claim of violation of due process by reason of the absence of notice must also be denied for the same reasons which preclude the necessity of notice under the Rule. The remaining contentions of appellant need not be discussed except as they are considered in the companion case of English v. Cunningham. Affirmed except as the decree on appeal is modified in the companion case decided this day. . Rule 23: “(a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is “(1) joint, or common, or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it; “(2) several, and the object of the action is the adjudication of claims which do or may affect specific property involved in the action; or “(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought. * ❖ * * * “(c) Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court. If the right sought to be enforced is one defined in paragraph (1) of subdivision (a) of this rule notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. If the right is one defined in paragraphs (2) or (3) of subdivision (a) notice shall be given only if the court requires it.” . Out-of-pocket expenses of litigation, and the compensation of the Monitors, which the Teamsters must also pay, we think are not in the same category as counsel fees. Question: Did the court's ruling on attorneys' fees favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_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 MISSOURI-KANSAS-TEXAS R. CO. et al. v. BROTHERHOOD OF RY. & S. S. CLERKS et al. Nos. 10219, 10220. United States Court of Appeals Seventh Circuit. March 26, 1951. Rehearing Denied May 1, 1951. Carroll J. Donohue, St. Louis, Mo., Herbert L. Stern, Jr., Chicago, 111., James L. Crawford, Cincinnati, Ohio, Leo J. Hassenauer Chicago, 111., Hassenauer, Mc-Keon & Trussell, Chicago, 111., Edward J. Hickey, Jr., Washington, D. C., Salkey & Jones, St. Louis, Mo., Gottlieb & Schwartz, Chicago, 111., Mulholland, Robie & Hickey, Toledo, Ohio, of counsel, for appellants. W. R. Howell, St. Louis, Mo., G. H. Penland, M. E. Clinton, Dallas, Tex., William J. Milroy, Chicago, 111., for appellees. Before KERNER, DUFFY, and FINNEGAN, Circuit Judges. KERNER, Circuit Judge. These appeals are from an order temporarily enjoining the Brotherhood of Railway and Steamship Clerks from prosecuting any suit to enforce three awards theretofore entered in its favor by the National Railway Adjustment Board. The order was entered in a civil action brought by the Missouri-Kansas-Texas Railroad Company and an affiliated carrier against the Board, the Third Division thereof and its individual members; the Order of Railway Telegraphers and the Vice-President thereof; and the Clerks and their Vice-President. We shall refer to the parties as the carriers, the Board, the Clerks, and the Telegraphers. The subject matter of the suit was a series of awards which had been rendered by the Board pursuant to proceedings before it with two different referees sitting with it on petitions filed by the Clerks and the Telegraphers involving the same jobs —in other words, the original controversy was the familiar inter-union dispute in which the carriers had only a passive interest. However, they became actively interested when the dispute between the rival claimants was resolved in favor of both of them, with a series of awards directing the carriers to employ a member of each group for each of the jobs in dispute. The carriers thereupon filed this suit praying a temporary injunction restraining all parties from attempting in any manner to enforce the awards pending final determination of the controversy, and, upon final hearing, a permanent injunction restraining enforcement of the awards, a declaration that the awards are null and void, and an order on the Board to reopen the proceedings in each controversy and consolidate all so that the various issues would be settled in a single hearing with all parties having any interest therein given notice and opportunity to participate. The evidence adduced at the hearing on the motion for preliminary injunction was largely documentary, consisting of a series of exhibits pertaining to proceedings before the Board on similar earlier claims as well as those here involved. From this evidence the court rendered findings of fact to the effect that in eight dockets including No. 2544 which involved the same subject matter as one of the awards here involved, the Board had deadlocked on the issue of giving notice to persons or organizations other than the parties to the disputes whose interests might be affected by awards on the merits. The carrier members took the position that binding and conclusive awards could only be rendered after notice given to all whose rights might be involved. However, the Board, with Referee Bruce Blake sitting as a member, set the dockets down for hearing with notice only to the Clerks and the carriers, and they were the only parties who participated in the hearings. Because of the absence of the Telegraphers who, Referee Blake held, had a vital interest in the outcome of the dispute, No. 2544 was dismissed without prejudice. Similar claims were withdrawn by the Clerks. Three years later, in 1947, these same claims, involving the same positions, were again filed, and, after deadlock, with James Douglas sitting as referee, again without notice to the Telegraphers or opportunity to be heard, the Board entered its awards that the carriers had violated their agreement with the Clerks in permitting employees working under the Telegraphers’ agreement to do the work in dispute, and ordered the carriers to assign the positions to the Clerks. Upon receipt of the awards the Clerks made demand upon the carriers to comply therewith, and the carriers, solely because of the awards and the demands based thereon, put them partially into effect, abolishing certain positions theretofore assigned pursuant to the agreement with the Telegraphers. . The Telegraphers immediately protested this action and, in 1949, filed their claim with the Board for alleged violation by the carriers of the agreement with their organization in their action in implementing the awards in favor of the Clerks. The carriers again asked the Board to make the other group a party to the proceedings, contending that no legal and binding order could be made unless the other parties in interest were permitted to appear and be heard. The District Court found that in answering this contention the Telegraphers stated that if they had been permitted to intervene in the Clerks’ dockets and awards they could have shown that the positions in dispute had been duly negotiated between the carriers and the Telegraphers in 1916 and had been continuously in effect since that time. Again the Board deadlocked on the issue of notice to the other group, and a different referee, Mortimer Stone, was appointed to sit with the Board for hearing on the merits with only the carriers and representatives of the petitioning employees present and participating. This hearing resulted in an award sustaining all the claims of the Telegraphers and an order on the carriers to make the award effective and pay all sums of money due thereunder. The District Court further found that to comply with the Telegraphers’ award the carriers would be compelled to restore the positions transferred in compliance with the Clerks’ awards, and that application of the principles established by the Clerks’ awards in accordance with their contentions would require an annual expenditure of approximately $547,200. The trial judge concluded that it was the duty of the Board in the Clerks’ dockets to give notice of all hearings to the Telegraphers and to all individual employees involved in the disputes and to hear their contentions as one dispute before making any awards or orders and, similarly, in the matter of the Telegraphers’ claims, it was the Board’s duty to give notice to and hear the Clerks, and all employees involved, and that the carriers were entitled, in each case, to have those duties performed by the Board and, in failing to perform such duties, the Board violated the Railway Labor Act, 45 U.S.C. A. § 151 et seq., and denied the carriers due process of law. The District Court further concluded that the Board had exclusive primary jurisdiction to interpret the agreements of the Clerks and Telegraphers with the carriers, and that while the court had no jurisdiction to interpret the agreements, it did have the power to declare void the action or inaction of the Board which denied due process of law to any party to the disputes or to any carrier or employee involved therein; that the case did not involve a labor dispute within the meaning of the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq.; and that the carriers had no adequate remedy at law, hence the complaint stated a cause of action upon which relief could be granted to the carriers; and it ordered that a preliminary injunction should issue restraining enforcement of the Clerks’ awards until disposition of the cause on the merits. Because it then appeared that final disposition of the Telegraphers’ award awaited disposition of a petition for rehearing filed by the carriers, the court refrained from acting on the application for preliminary injunction in that cause. We think the District Court correctly concluded that this case does not involve a labor dispute within the meaning of the Norris-LaGuardia Act, and that that Act did not deprive the court of jurisdiction. See Virginian Railway Co. v. System Federation No. 40 etc., 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 237, 70 S.Ct. 14, 94 L.Ed. 22; and Brotherhood of Railroad Trainmen v. Templeton, 8 Cir., 181 F.2d 527, 533. In our view the all important question raised 'by these appeals is that of the jurisdiction of the court over the subject matter of this proceeding. Both appellants contend that since § 3, First (p) of the Railway Labor Act, 45 U.S.C.A. § 153, subd. l(p), makes special provision for judicial review of awards of the Board, jurisdiction over such reviews is vested only in the courts therein specified and must be exercised in accordance with the procedures therein provided. There is no question now but that the courts have absolutely no jurisdiction to interpret agreements between carriers and their employees or to settle disputes arising out of the construction of such agreements. That principle has been so firmly established by a series of decisions construing § 3 of the Railway Labor Act that we deem it unnecessary even to cite authorities. But that is not the question presented by these appeals. Here the novel issue is whether the court may act under its general equity jurisdiction to prevent the irreparable damage which the carriers assert will follow if they are relegated to the statutory procedure for review of awards. We think the cases relied upon, which deny primary jurisdiction of the courts over disputes growing out of the construction and application of collective bargaining agreements in the railroad industry, do not control the decision of the issue here presented. Here the court found that the agreements in controversy had already been submitted to the Board and had become the subject of inconsistent awards, the enforcement of which would add substantially to the costs of operation of the railroads. And, as the carriers contend, enforcement is practically inevitable if the statutory procedures for review provided by § 3, First (p) are allowed to be invoked since each award and order, presumptively valid, would be the subject of a separate, independent proceeding in which, as in the proceeding before the Board, only they and the employee in whose favor it had been rendered would participate. The dilemma here posed results in large part from the refusal of the Board to bring both groups of claimants before it in one proceeding. Judging from a number of opinions accompanying awards and orders which were introduced as evidence in this cause, it appears to have been generally assumed that the Board has no authority under the Act to consider two agreements simultaneously, each in the light of the other. However, we are convinced from our examination of the Act that it does not require such construction. It has been stated that the rules of the Board which it is authorized to promulgate under § 3, First (u) forbid such procedure. However, we have been cited to no such rule and doubt its existence in view of the fact that it appears that the Board itself has generally deadlocked on the question, with the carrier members consistently upholding the view that where a claim is filed against a carrier by a labor group contemplating the ousting of other employees in favor of the claimant, those other employees sought to be ousted have a vital interest in the proceeding and, under § 3, First (j) of the Act, a right to notice and opportunity to participate in the hearing before the Board. The labor members have with equal consistency denied this contention. We think logic and reason support the carriers’ construction of § 3, First (j) which provides that the Board shall give due notice of all hearings “to the employee or employees and the carrier or carriers involved in any disputes submitted to them.” We can think of no employee having a more vital interest in a dispute than one whose job is sought by another employee or group of employees. Obviously it is desirable to settle controversies such as these involving so-called “overlapping contracts” on the basis of the existing contracts wherever possible instead of compelling resort to the machinery provided by § 6 for changing agreements. Of course this may not always be possible, but it is certainly much more likely to result if both parties to the dispute are brought before the Board with their respective agreements and each is considered in the light of the other, together with the usage, practice and customs of the industry, or of the particular carrier. And we think the case, Order of Railway Conductors of America v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318, supports this view. That case also involved a dispute between two groups of employees, both of whom claimed the same jobs 'by virtue of the agreement of each with the carrier. There the Supreme Court upheld the function of the Adjustment Board to resolve the conflict, but indicated that in doing so, the Board must consider both agreements together, stating 326 U.S. at page 567, 66 S.Ct. at page 325, “O. R. C.’s agreements with the railroad must be read in the light of others between the railroad and B. R. T. And since all parties seek to support their particular interpretation of these agreements by evidence as to usage, practice and custom, that too must be taken into account and properly understood.” A temporary injunction is a provisional remedy granted before a hearing is had on the merits; its object usually is to preserve the subject of the controversy in its then existing condition—to preserve the status quo. Hunter v. Atchison, Topeka and Santa Fe Ry. Co., 7 Cir., 188 F.2d 294; Doyne v. Saettele, 8 Cir., 112 F.2d 155. In our case Judge Barnes, in granting the temporary injunction, made no final determination of the merits. He determined only the question whether the subject of the controversy should be preserved in its then existing condition. Under these circumstances his order will not be disturbed on appeal except for an abuse of discretion. We are unable to say that there was an abuse of discretion here. It follows that the order of the District Court must be affirmed. It is so ordered. 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_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. UNITED STATES of America v. PINTO, Biagio a/k/a Bob Pinto, Appellant. No. 80-2420. United States Court of Appeals, Third Circuit. June 10, 1981. See also, D.C., 486 F.Supp. 578. Jacob Kossman (argued), Philadelphia, Pa., for appellant. Peter F. Vaira, Jr., U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Stanley Weinberg, Asst. U. S. Atty. (argued), Philadelphia, Pa., for appellee. SUR PETITION FOR REHEARING Before SEITZ, Chief Judge, and ALDI-SERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges. The petition for rehearing, 3 Cir., 646 F.2d 833, filed by Appellee in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. Circuit Judge ADAMS votes for rehearing. He believes that the result reached by the opinion represents a crabbed and unrealistic interpretation of § 18 U.S.C. § 2113(b), and is also at variance with the interpretation set forth by the Second, Fourth, Fifth and Eighth Circuits. The panel here specifically determined that the defendant did, in fact, take the excess money with the intent to steal or purloin it, but then proceeded to conclude that a “fraud type” stealing or purloining is not encompassed by § 2113(b). Nothing in the legislative history of the statute demonstrates that Congress sought to exclude “fraud type” stealing. The petition for rehearing suggests that in 1979 the Federal Reserve System alone handled approximately 35,000,000 interbank transactions. 66th Annual Report, Board of Governors of the Federal Reserve System, 300, 323 Table 9. Undoubtedly, the overwhelming majority of these transactions were processed without error. But, as the present case illustrates, errors sometimes occur. The interpretation reached by the panel would exclude from coverage of § 2113(b) an individual’s knowing exploitation of errors arising in connection with interbank transfers, to the detriment of the banking system and the public generally. Circuit Judge GARTH also votes for rehearing and joins Circuit Judge ADAMS’ statement. 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_appnonp

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Jane KIEFFER, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee. No. 88-3473. United States Court of Appeals, Sixth Circuit. Argued March 20, 1989. Decided May 3, 1989. Alexander M. Spater, Michael S. Kolman (argued), Spater, Gittes & Terzian, Columbus, Ohio, for Jane Kieffer. David J. Young, Steven W. Tigges (argued), Murphy, Young & Smith, Columbus, Ohio, for Sears, Roebuck & Co. Before MERRITT and BOGGS, Circuit Judges, and CONTIE, Senior Circuit Judge. CONTIE, Senior Circuit Judge. Plaintiff Jane Kieffer appeals from the judgment of the district court adopting the report and recommendation of a special master and granting summary judgment for defendant Sears, Roebuck & Company in this employment discrimination case brought under Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Appellant argues, inter alia, that the district court erred in adopting the special master’s report and recommendation without holding a hearing. For the following reasons, we vacate the judgment of the district court and remand for a hearing. I. Appellant filed her complaint on April 29, 1982. She alleged that appellee discriminated against her on the basis of her sex through its promotion opportunities, the terms and conditions of employment, its failure to correct the present effects of past discrimination, and its discharge of her on March 31, 1980. On February 5, 1987, the district court granted partial summary judgment for ap-pellee on appellant’s claims concerning promotion, terms and conditions of employment, and present effects of past discrimination. The district court then referred the discharge issue to a United States Magistrate acting as a special master pursuant to 42 U.S.C. § 2000e-5(f)(5) and 28 U.S.C. § 636(b)(2). The case was tried to the special master on May 12, 13, and 14,1987. On March 3,1988, the special master issued a report and recommendation finding that appellee did not discriminate against appellant when it discharged her. Appellant filed a motion for reconsideration of the magistrate’s report and recommendation pursuant to Federal Rule of Civil Procedure 53(e)(2) and requested oral argument. On April 26, 1988, the district court adopted the report and recommendation of the special master without holding a hearing. Appellant timely appeals. II. Appellant argues, inter alia, that Rule 53 mandates that the district court hold a hearing concerning her objections before adopting the special master’s report and recommendation and, therefore, the court erred in adopting the report and recommendation without holding a Rule 53 hearing. Rule 53(e)(2) reads as follows: (2) In Non Jury Actions. In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d). The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions. In In re Wonderbowl, 424 F.2d 178 (9th Cir.1970), the Ninth Circuit was presented with a nearly identical procedural situation. In that case, the district court referred a bankruptcy matter to a special master. The district court adopted the special master’s report and recommendation without holding a hearing. The appellant challenged the district court’s order on the ground that it had failed to hold a hearing as mandated by Rule 53 and General Order in Bankruptcy 47. The court of appeals agreed and held that Rule 53 clearly gives objectors the right to be heard before the court adopts the report of a special master. Id. at 180. See also In re Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 739 F.2d 1169, 1172 (7th Cir.1984); 9 C. Wright & A. Miller, Federal Practice and Procedure, § 2612, at 805 (1971) (“The court must hold a hearing on the motion [objecting to the special master’s report]”). We agree. Appellee argues that a hearing was not necessary because oral argument was held before the special master and comprehensive briefs were filed with the district court addressing appellant’s objections. These arguments were expressly rejected by the Ninth and Seventh Circuits. One who files objections to the report of a Special Master thus has a right to be heard on those objections before the court acts on the report. This is so even though the objector’s arguments have been presented and considered before the Master and have been filed in writing before the court. In Re Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 739 F.2d at 1172 (citing In re Wonderbowl, 424 F.2d 178). We are equally unimpressed with this argument. We do not believe that the fact that a party’s objections are comprehensively briefed avoids the plain language of the rule, which clearly states that the court may adopt the report after hearing. Accordingly, we hold that when a district court is presented with objections to the report of a special master, the objector has a right to a hearing and, therefore, we must remand this case so that the hearing which is mandated by Rule 53 can be held. In remanding this case, we note that appellant makes several arguments before this court concerning the magistrate’s handling of the evidence concerning allegedly similarly situated or comparable employees. In particular, appellant argues that the magistrate erred in determining that employees who worked in departments other than her department were not comparable employees for the purpose of showing disparate treatment. Furthermore, she argues that this alleged error was compounded by the magistrate’s inconsistent determination that appellee could introduce evidence concerning employees from other departments as comparable employees to disprove pretext. While we express no opinion on the ultimate merit of these arguments, we believe the failure to afford appellant the opportunity to press these serious arguments at a hearing before the district court was inconsistent with substantial justice and, therefore, was not harmless error. See Fed.R.Civ.P. 61. For the foregoing reasons, we VACATE the judgment of the district court and REMAND for further proceedings. . Section 2000e-5(f)(5) reads as follows: It shall be the duty of the judge designated pursuant to this subsection to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited. If such judge has not scheduled the case for trial within one hundred and twenty days after issue has been joined, that judge may appoint a master pursuant to rule 53 of the Federal Rules of Civil Procedure. . General Order in Bankruptcy 47 tracks the language of Rule 53: “The judge after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.” . Appellant also asserts that even though she asked for oral argument in this case, she was not required to request a hearing because the rule mandates that the court hold a hearing. Appellant's argument is well taken. However, since appellant did request oral argument in this case, we need not decide whether she was required to request a Rule 53 hearing. Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number. Answer:

songer_appnatpr

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. PORT NORRIS EXPRESS CO., INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Dennis Trucking Company, Inc., Intervenor. No. 81-2884. United States Court of Appeals, Third Circuit. Argued July 23, 1982. Decided Sept. 8, 1982. William P. Jackson, Jr. (argued), David C. Reeves, Arlington, Va., for petitioner; Jackson & Jessup, P. C., Arlington, Va., of counsel. John Broadley, Gen. Counsel, Ellen D. Hanson, Associate Gen. Counsel (argued), Washington, D. C., for I. C. C. Before ADAMS and HIGGINBOTHAM, Circuit Judges, and TEITELBAUM, District Judge. Honorable Hubert I. Teitelbaum, United States District Court for the Western District of Pennsylvania, sitting by designation. OPINION OF THE COURT ADAMS, Circuit Judge. This case is one of several brought in this Court by Port Norris Express Company, Inc. (Port Norris), challenging what it claims to be excessively broad authorizations granted to competing carriers by the Interstate Commerce Commission (ICC). In three previous cases, No. 81-2589, No. 81-2640, and No. 81-2641, all entitled Port Norris Express Co., Inc. v. Interstate Commerce Commission, the ICC did not defend its grants of authority but instead asked this Court to remand in light of American Trucking Associations, Inc. v. ICC, 659 F.2d 452 (5th Cir. 1981) (ATA I). ATA I, discussed infra pp. 806-808, was a general challenge by trade associations, a union, and several trucking firms to ICC rules and policies implementing the Motor Carrier Act of 1980. These rules and policies, in effect when the various applications challenged by Port Norris were made, were in large part invalidated by ATA I because they required applicants to request and receive wider authority than could be justified under the statute. Although in the present case the ICC has chosen to defend its grant of authority, we conclude that this grant — like those involved in the previous Port Norris cases — requires reconsideration in light of ATA I. I On February 7, 1981, Dennis Trucking Company, Inc. (Dennis) filed an application with the ICC pursuant to 49 U.S.C. § 10922(b). The application sought to expand the authorization that the company previously held, so that it would be able to transport “general commodities” (except for Class A and B explosives) in a region fully encompassing twelve states and the District of Columbia. Authority to transport “general commodities” includes among other things the right to transport both “bulk” and “household goods” unless these two highly specialized types of service are specifically excepted from the grant. Commodities carried in bulk are poured or placed in the vehicle without regard to order and without packaging. See Steere Tank Lines, Inc. v. ICC, 666 F.2d 255, 257 n.3 (5th Cir. 1982). Dennis had not previously carried either household goods or bulk commodities, and its territorial range had been much narrower than that sought in the application. Dennis’ application was supported by statements of thirty-five shippers. While some of these shippers do ship commodities susceptible of being transported in bulk (see Addendum to Respondents’ Brief at 27-29), none specifically stated that it needed Dennis to transport any commodities in bulk. Port Norris, a carrier specializing in bulk transportation, filed a timely protest to Dennis’ application, urging that there was insufficient evidence of public need to justify including bulk commodities in Dennis’ authorization. A protest by a group of household goods carriers challenged the sufficiency of the evidence to support a finding either that Dennis was fit, willing, and able to transport household goods, or that Dennis had shown public need for its services as a household goods carrier. On June 26, 1981, ICC Review Board No. 2 granted the entire authority for which Dennis had applied. Port Norris and the group of household goods carriers filed an administrative appeal. ICC Appellate Division No. 1, consisting of three Commissioners (one of whom did not participate in this case), affirmed the Review Board on September 10, 1981, without issuing an opinion. The ICC issued a certificate to Dennis on October 21, 1981. Port Norris petitioned this Court on November 16, 1981 to review and set aside the decision of the ICC with respect to Dennis’ bulk authority. Although there is some ambiguity in Port Norris’ briefs, counsel made clear at oral argument that Port Norris does not challenge Dennis’ authorization to transport household goods. In as much as the household goods carriers did not seek review of the Appellate Division’s decision, we do not consider the propriety of the grant of household goods authority to Dennis. Dennis has filed a brief as an intervenor in support of the ICC. Respondent United States of America has declined to oppose or support the ICC’s decision in the present case. II It is undisputed that the Motor Carrier Act of 1980, Pub.L.No.96-296, 94 Stat. 793 (1980), which is the source of 49 U.S.C. § 10922(b), was designed to ease carrier entry into the trucking industry. See Gamble v. ICC, 636 F.2d 1101, 1103 (5th Cir. 1981): “The principal goals of the legislation . . . are to promote greater competition by allowing easier carrier entry, to simplify and expedite the certification process, and to lessen restrictions on motor carrier operations.” Indeed, the Act itself states that it is “part of the continuing effort by Congress to reduce unnecessary regulation by the Federal Government,” and that “historically the existing regulatory structure has tended in certain circumstances to inhibit market entry, carrier growth, maximum utilization of equipment and energy resources, and opportunities for minorities and others to enter the trucking industry.” Motor Carrier Act of 1980, §§ 2 & 3, 94 Stat. at 793 (1980). The Act, however, plainly did not deregulate motor carrier entry completely. If the ICC is to grant authority to a party such as Dennis, then under section 10922(b)(1)(A) it must find that Dennis is “fit, willing, and able” to perform the authorized service; further, under section 10922(b)(1)(B), it must find that there is a “public demand or need” for the service. The legislative history of these provisions helps to clarify the balance Congress was attempting to strike between easing entry on the one hand and retaining regulation on the other: Paragraph (1) of the new section 10922(b) sets forth the entry standards to be used by the Commission in determining whether to issue a certificate authorizing operation as a motor common carrier of property. It retains the traditional test that all applicants must be fit, willing, and able. However, it revises the public convenience and necessity requirement. Specifically, it reduces the burden of proof on persons supporting the application. Persons supporting the application will be required to come forward with some evidence of a, public need or demand for the service. Under this standard, proponents of the application must show that the service they propose would serve a useful public purpose, responsive to a public demand or need. For example, this demonstration could be made by public officials, shippers, receivers, trade associations, civic associations, consumers, and employee groups, as well as by the applicant itself. The normal way to establish this has been for applicants to submit evidence of some of those who would use the service proposed. The Committee thinks that this is still the most effective evidence, for it provides the Commission with the information it needs to frame a grant of authority and provides a factual framework for dealing with the application and the interests of the parties on both sides. However, the Committee does not intend to restrict the Commission in which factors it can consider in determining whether the proposed service is responsive to a public demand or need. These factors include the following: a need or demand for new services, innovative quality or price options, increased competition, greater fuel efficiency, improved service for small communities, improved opportunities for minorities, and any other benefits that would serve a useful public purpose. This is consistent with the Commission’s consideration of the National Transportation Policy, including any of the applicable factors listed in section 10101(a)(7)(A) through (H). Where an application is uncontested, the Commission will be concerned with the fitness of an applicant and whether the applicant has met his prima facie showing of public need. H.R.Rep.No.96-1069, 96th Cong., 2d Sess. 14-15 reprinted in 1980 U.S.Code Cong. & Ad.News 2283, 2296-97. Port Norris argues that despite the statement in the House Report that “[pjersons supporting the application will be required to come forward with some evidence of a public need or demand for the service,” the Act requires that “substantial evidence” be proffered. Reply Brief at 16-18. Because we find that there is not even “some evidence,” we see no need here to resolve the issue. With respect to the “fit, willing, and able” criterion, the ICC seems not to dispute that there must be “substantial evidence” of Dennis’ qualifications to provide transportation in bulk. And it appears to concede that the standard of review this Court must utilize is that the agency’s decision must be set aside if “unsupported by substantial evidence,” 5 U.S.C. § 706(2)(E). Respondent’s Brief at 13. Substantial evidence has been defined as: . . . “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229 [59 S.Ct. 206, 216, 83 L.Ed. 126]. Accordingly, it “must do more than create a suspicion of the existence of the fact to be established. ... it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300 [59 S.Ct. 501, 505, 83 L.Ed. 660], Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). See also, e.g., Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966). Under ICC “guidelines” in effect when Dennis made its application (the so-called “New Certificate Statement,” Ex Parte No. 55 (Sub-No. 43A), 45 Fed.Reg. 86,798 (1980)), Dennis had little choice but to apply for bulk authority whether or not it was “fit, willing, and able” to transport in bulk and whether or not there was a “public demand or need” for its services as a bulk carrier. And under these same guidelines the ICC is likely to have granted such authority regardless of whether the two statutory requirements had been met. ATA I, supra, found that these “guidelines” insofar as they pertain here, contravened the statute. According to ATA I, the so-called guidelines were in fact mandatory rules enforced by threats of delay and of expensive litigation. The Court concluded: In short, in its announcement in the New Certificates Statement, the Commission has prescribed the use of its list of certain commodity descriptions, “discouraged” the use of any deviations from the list, and required justification for proposing a deviation from the prescribed list. The Commission states that carriers may seek to justify departure from its standards. This imposes the same in terrorem constraint that the Commission found to have been the past practice but now condemns: the fear of lengthy and expensive litigation. 659 F.2d at 471-472, footnotes other than 99 omitted. Addressing himself specifically to the issue of bulk service, Judge Alvin Rubin wrote for the court: The New Certificates Statement states that the Commission’s policy is to “disallow all restrictions except those implicitly or explicitly acceptable in the Act,” including elimination of bulk services restrictions from grants of general commodities authority. The Commission recognized that “[wjhile it is true that every carrier does not operate every type of equipment all of the time,” it still maintained that “nothing is gained by limiting authorities merely because the applicant does not already have the special equipment.” Apparently, the Commission was motivated by a desire to achieve “overall transportation economies and efficiencies ... by encouraging competition.” Here, . . . the Commission has exceeded its statutory mandate by granting authority to carriers who cannot demonstrate that they are “fit, willing, and able to provide the transportation to be authorized by the certificate.” Bulk service requires special equipment, such as tank trucks, that many carriers do not have. Moreover, as pointed out by opponents to the Commission’s statement, most carriers are not fit to provide bulk service because they will not have the proper cleaning facilities for tank trucks, and in the case of hazardous bulk materials (other than class A and B explosives), will not know the appropriate safety regulations for handling bulk items, or have satisfied the special insurance limits pertaining to hazardous materials. Id. at 472-473, footnotes omitted. Ill In this appeal, the ICC does not question ATA I; rather the ICC attempts— unsuccessfully we believe — to distinguish it: Respondents submit that the ATA requirements have been met here. Petitioner’s arguments to the contrary presume that, to receive bulk authority, an applicant must already be outfitted for bulk operations (even if it does not currently perform such service) and must present shippers who stand ready immediately to tender shipments in bulk. Respondent’s Brief at 15. In an omitted footnote the ICC “emphasize[s] that [it is] not here advocating bulk authority absent a showing of need for or fitness to conduct such service.” But it would appear that the ICC has failed to appreciate the true basis of the case against it. The point is not that Dennis must be fully outfitted at the time it applies or that shippers must be immediately ready to tender shipments in bulk to Dennis. The important points in this case appear to be these: (A) Whether or not there was sufficient evidence under Section 10922(b), the Administrative Procedure Act (APA) imposes a duty on the ICC to articulate the factual bases for its decision; the ICC may not simply rely on the policy, struck down in ATA I, of routinely granting bulk authority without regard to the facts of the proceeding. (B) Quite apart from Dennis’ lack of equipment, the evidence does not support a finding that Dennis was willing to provide bulk service. (C) Since any finding that Dennis is fit to transport in bulk depends on a finding that it is willing to acquire the necessary equipment, unwillingness to acquire necessary equipment here implies unfitness. (D) When the only evidence of public demand or need for bulk service is the statements of supporting shippers, the shippers must at least make clear that they consider that they have a need for bulk service from Dennis. We discuss each of these points in turn. A In Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974), there seemed “to be agreement that the findings and conclusions of the Commission [were] supported by substantial evidence.” But this did not resolve the question whether the ICC’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), since the “arbitrary and capricious” standard of section 706(2)(A) is distinct from the “substantial evidence” standard of Section 706(2)(E). Both standards are of .course part of the APA. Bowman Transportation summarized the law as follows: Under the “arbitrary and capricious” standard the scope of review is a narrow one. A reviewing court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.. . . Although, this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, [401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1970)]. The agency must articulate a “rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U.S. 156, 168 [83 S.Ct. 239, 245, 9 L.Ed.2d 207] (1962). While we may not supply a reasoned basis for the agency’s action that the agency itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196 [67 S.Ct. 1575, 1577, 91 L.Ed. 1995] (1947), we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595 [65 S.Ct. 829, 836, 89 L.Ed. 1206] (1945). Id. 419 U.S. at 285-286, 95 S.Ct. at 441-42. The “reasoned basis for the agency’s action” must be provided by the agency in the administrative proceedings! We “may not accept appellate counsel’s post hoc rationalizations for agency action.” Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962). As Argo-Collier Truck Lines Corp. v. United States, 611 F.2d 149, 152 (6th Cir. 1979), explains: It is essential to the decisionmaking process that the ICC articulate clearly its findings on the factual issues which form the basis for its decisions. Without such findings, a reviewing court is unable to perform its function of ascertaining that the ultimate conclusions are derived from the record before the agency and not the result of discretion exercised in an arbitrary and capricious manner. Trans-American Van Service, Inc. v. United States, 421 F.Supp. 308, 319 (N.D.Tex.1976). Since the Appellate Division, in dismissing appeals from the Review Board’s decision, did not issue an opinion, we consider only the opinion of the Review Board. The ICC’s brief does not so much defend the Review Board opinion as blame Port Norris for the Review Board’s inadequacies. The brief appears to make no claim that the Review Board ever addressed the specific issue of Dennis’ fitness or willingness to transport in bulk, or of the public demand or need for Dennis’ services as a bulk carrier. Instead the ICC points out that Port Norris’ initial protest was almost exclusively focused on the alleged competitive harm that Port Norris would suffer if Dennis’ application were granted. But the ICC fails to explain why Port Norris’ decision to base its protest primarily on the issue of competitive harm should excuse the ICC from making findings as to Dennis’ fitness and as to public demand or need for the services proposed by Dennis. Legislative history would suggest that even “[w]here an application is uncontested, the Commission will be concerned with the fitness of the applicant and whether the applicant has met his prima facie showing of public need,” H.R.Rep.No.96-1069, supra, at 15, U.S.Code Cong. & Admin.News at p. 2297. Section 10922(b)(3) further confirms the ICC’s obligation to make an individual determination of public convenience and necessity even in uncontested cases. Moreover, Port Norris’ protest did state that it thought there was insufficient evidence of public need for additional bulk service (e.g., Appendix at 204, 208) and even reminded the ICC of its duty to make factual findings of public convenience and necessity and not to rely solely on general policies (Appendix at 207). In its administrative appeal, Port Norris challenged Dennis’ willingness if not its fitness (Appendix at 319), although the Appellate Division did not respond. But the important point is that, regardless of the issues to which Port Norris called attention, the Review Board was bound to “articulate a ‘rational connection between the facts found and the choice made,’ ” Bowman Transportation, supra, 419 U.S. at 285, 95 S.Ct. at 441. The Review Board completely neglected to make any findings with respect to bulk service. It failed even to mention that it was granting bulk authority, although of course the “general” authorization it granted did include bulk. This treatment of bulk authority is certainly understandable in view of the then-existing ICC policy, but it strongly suggests that the Review Board was basing its decision solely on ICC policy and not on the facts of the case. Port Norris can hardly be blamed for the Review Board’s failure to mention specifically transportation in bulk, inasmuch as Port Norris’ protest, repeatedly mentioned its concern over the possible inclusion of bulk authority within the grant to Dennis. Even if there were no problems with the sufficiency of the evidence, we would be required to remand on the ground that the ICC’s action, because its basis was unexplained, was arbitrary and capricious. Insofar as we can discern a basis for the decision, that basis seems to be the improper ICC policy of granting bulk authority without regard to whether the statutory requirements have been met. B Perhaps the ICC’s failure at the administrative level to articulate the basis for finding that Dennis was willing to transport in bulk would not in and of itself be arbitrary and capricious. This is so because a reviewing court might in some circumstances be entitled to assume that the ICC was simply relying on the fact that the applicant requested bulk authority as evidence of the appellant’s willingness. But whether or not the ICC’s failure to discuss any evidence of willingness was arbitrary and capricious, the record in this case cannot support a finding that Dennis was willing to carry commodities in bulk. Dennis’ own “Rebuttal Argument” to the administrative protest of Port Norris and the household goods carriers is quite damaging to the ICC’s cause: We recognize that none of the shippers supporting the application expressly mention a need for the transportation of commodities in bulk or for the provision of household goods transportation service. While Dennis has no present intent to become involved in the provision of household goods transportation services or in the transportation of commodities in bulk, the scheme of regulation now adhered to by the Commission, pursuant to the 1980 Act, suggests that Dennis not be foreclosed, by operating authority restrictions from engaging in either type of service. Although Dennis will not seek reconsideration of a grant restricted against the transportation of commodities in bulk and household goods, if the Commission finds that the application should be so restricted, Dennis, while recognizing the dearth of support specifically seeking such service, requests the issuance of a Certificate unencumbered by either such restriction. Appendix at 305-306. Dennis repeated this passage word for word in replying to the administrative appeal of the household goods carriers (Appendix at 327) and again in replying to the administrative appeal of Port Norris (Appendix at 334). Attempts by the ICC to explain away this passage are unsuccessful. The ICC reads Dennis’ lack of “present intent” to transport in bulk as an expectation that bulk shipments would not “be tendered to it immediately.” Respondent’s Brief at 19 and 21 n.21. But there is a substantial difference between lacking a present intent to transport in bulk and having an expectation that no bulk shipments would be tendered immediately. One can expect that others will immediately request a service from one, and yet have no intent to provide it. Dennis’ language cannot support an inference that Dennis ever intends to provide bulk service. The ICC and Dennis in their briefs stress that Dennis asked not to be foreclosed from carrying in bulk. But what the passage quoted above actually says is not that Dennis wants not to be foreclosed but that the ICC’s scheme of regulation suggested that Dennis not be foreclosed. Dennis’ language indicates that what may well have occurred here is precisely what ATA I condemns: an applicant requesting and receiving authority not because it desires the authority but because it feels compelled to do so by ICC policy. In addition, the ICC argues that Dennis’ statement that it would not appeal a grant of restricted authority is explicable as reflecting a desire on Dennis’ part to avoid the delay and expense of protracted litigation. But while failure actually to take an appeal might reflect such a desire, it is difficult to see how stating in advance of decision that it would accept an adverse judgment could have saved Dennis any time or money. Dennis’ statement that it would not appeal therefore may appropriately be construed as indicating a lack of interest in obtaining the full authority requested. Similarly, if Dennis indeed desired bulk authority, it is anomalous that it would call attention to the weakness of its own case. Yet twice in the quoted passage Dennis refers to the paucity of specific shipper support for bulk authority and makes no attempt to balance this admission with a statement to the effect that shipper support is nonetheless sufficient. In another paragraph of its “Rebuttal Argument,” Dennis expresses its view that the “principal thrust” of its application is not the request for household goods and bulk transportation authority, but the request to expand territorially. Again, Dennis sought to stress that it had little interest in bulk authority, and again this tends to undermine any inference of willingness. Dennis’ original application also undercuts the ICC’s supposed finding of willingness. Dennis did seek “general authority,” and did not specifically ask the ICC to except bulk authority from this. But the ICC and Dennis point to no language at all in the application expressing an interest in bulk authority. The ICC can do no more than cite several expressions of Dennis’ willingness (and ability) to provide the “proposed services,” expressions which fail specifically to mention bulk authority. Respondent’s Brief at 22-23, citing Appendix at 10, 11, 15, 41, 42. And the section of Dennis’ application that deals with proposed service (Appendix at 14-15) states that Dennis “proposes to offer the same type of services presently provided, in an expanded, but concentrated, service area” — in other words, that Dennis seeks to continue to provide non-bulk service, but in a larger area. Dennis’ brief in the present appeal does specifically express a willingness to transport in bulk. But of course this brief was not part of the administrative proceedings. And _ even in its appellate brief, Dennis’ expressions of willingness are rather tepid. Dennis notes that the authority requested was in accordance with ICC policy at the time of the application, and that ATA I was not decided until after the ICC Appellate Division had reached a final decision in the present case. Dennis legitimately complains that it “found itself caught up in this unsettled period.” Intervenor’s Brief at 8. The implication of this argument is that Dennis might very well not have applied for bulk authority had it known of ATA I before it submitted its application. Dennis acknowledges that ICC policy was one of the factors inducing it to apply for general authority with no exception for bulk. But the only other factor it cites is the allegedly broad nature of the supporting shippers’ traffic, not its own fitness or willingness. Intervenor’s Brief at 8. Whatever slight evidence of willingness there may be in this proceeding is based solely on the fact that Dennis did apply for general authority and did not specifically ask the ICC to except bulk transportation from the general grant. Even if such evidence would under other circumstances suffice to show willingness, in this case it is fatally tainted by the ICC policies that left Dennis little alternative but to apply for bulk authority. C It is undisputed that at the time of its application Dennis lacked bulk capability. Any finding of fitness therefore would depend on a finding that Dennis is willing to acquire the necessary equipment. If there is insufficient evidence of willingness to transport in bulk, then under the facts of this case there is also insufficient evidence of fitness. To guide the ICC on remand, we note our agreement with its view that an applicant need not be fully outfitted to carry in bulk at the time of application in order for the applicant to be considered fit. On the other hand, Whether an applicant has the proper equipment to provide [the proposed] service is an important consideration in determining whether the requirements have been met. American Trucking [ATA I] at 465, 473. Steere Tank Lines, Inc. v. ICC, 675 F.2d 103, 104 (5th Cir. 1982). D ICC’s argument that there was sufficient evidence of public demand or need, despite the failure of all thirty-five supporting shippers specifically to mention a need for bulk service, is not persuasive. The contention is in essence that three or four of the supporting shippers ship (among other things) commodities that are “susceptible of being transported in bulk.” This includes one shipper (U. S. Gypsum) that ships one commodity, among many, that is allegedly “almost invariably transported in bulk,” and another shipper (Crest Brick Co.) that supposedly ships “bauxite and aluminum . . . loose in bulk.” See Respondent’s Brief at 18, 19, 27-29. Because a few of the supporting shippers stated that they ship some commodities that are at least susceptible of being transported in bulk it can be inferred that they need Dennis to ship these commodities in bulk, or so the ICC now maintains. Since Dennis undoubtedly expected that it would be given bulk authority in any case, provided that its request for territorial expansion was approved — and since Dennis may not even have wanted bulk authority — it is not surprising that Dennis’ supporting shippers should have had so little to say about bulk needs. The evidence of public demand or need in this proceeding is so indirect and speculative as to fail even the minimal standard of section 10922(b)(1)(B). Of course, the ICC is entitled to make certain inferences from the evidence. But when the sole “evidence presented by persons supporting the issuance of the certificate” pursuant to section 10922(b)(1)(B) is the statements of shippers who plan to use the service proposed, it cannot be too much to expect one or more of these shippers — we express no view as to how many are needed — to make it clear that they believe they have some need or are prepared to make a demand for the service. IV Accordingly, the grant of authority to Dennis insofar as the grant encompasses authority to transport in bulk will be vacated, and the matter will be remanded to the ICC for further proceedings consistent with this opinion. . In American Trucking Associations, Inc. v. ICC, 669 F.2d 957 (5th Cir. 1982) (ATA II), the Fifth Circuit issued a writ of mandamus enforcing ATA I, along with an opinion clarifying its initial decision. In American Trucking Associations, Inc. v. ICC, 673 F.2d 82 (5th Cir. 1982) (ATA III), the court declined to undertake an across the board review of all ICC decisions in violation of ATA I. According to ATA II, supra, 669 F.2d at 959, n.l, the ICC allowed the time for filing a petition for certiorari with the Supreme Court in ATA I to lapse. After ATA II, however, the ICC petitioned for certiorari, asking the Supreme Court to review both ATA I and ATA II. Justice White issued a stay of the mandamus pending the filing and the disposition of the ICC’s petition for certiorari, S.Ct. No. A-810 (March 29, 1982). In the present case, the ICC and Port Norris have not discussed ATA II or ATA III. Port Norris relies heavily on ATA I, and the ICC distinguishes but does not challenge ATA I. A recent decision of the District of Columbia Circuit, Ritter Transportation, Inc. v. ICC, 684 F.2d 86 (D.C.Cir.1982), relying on ATA I and on Steere Tank Lines, Inc. v. ICC, 666 F.2d 255 (5th Cir. 1982), vacated an order of the ICC that had removed restrictions on Port Norris. Port Norris’ authority is not an issue in the present case, however. . A fifth Port Norris case, No. 81-3019, Allied Bulk Carriers, Inc., Intervenor, has yet to be decided by this Court. . That provision reads: (1) Except as provided in this section, the Interstate Commerce Commission shall issue a certificate to a person authorizing that person to provide transportation subject to the jurisdiction of the Commission under sub-chapter II of chapter 105 of this title as a motor common carrier of property if the Commission finds— (A) that the person is fit, willing, and able to provide the transportation to be authorized by the certificate and to comply with this subtitle and regulations of the Commission; and (B) on the basis of evidence presented by persons supporting the issuance of the certificate, that the service proposed will serve a useful public purpose, responsive to a public demand or need; unless the Commission finds, on the basis of evidence presented by persons objecting to the issuance of a certificate, that the transportation to be authorized by the certificate is inconsistent with public convenience and necessity. (2) In making a finding under paragraph (1) of this subsection, the Commission shall consider and, to the extent applicable, make findings on at least the following: (A) the transportation policy of section 10101(a) of this title; and (B) the effect of issuance of the certificate on existing carriers, except that the Commission shall not find diversion of revenue or traffic from an existing carrier to be in and of itself inconsistent with the public convenience and necessity. (3) The Commission may not make a finding relating to public convenience and necessity under paragraph (1) of this subsection which is based upon general findings developed in rulemaking proceedings. Section 10101(a), referred to in § 10922(b)(2)(A), reads: § 10101. Transportation policy (a) Except where policy has an impact on rail carriers, in which case the principles of section 10101a of this title [49 USCS § 10101a] shall govern, to ensure the development, coordination, and preservation of a transportation system that meets the transportation needs of the United States, including the United States Postal Service and national defense, it is the policy of the United States Government to provide for the impartial regulation of the modes of transportation subject to this subtitle, and in regulating those modes— (1) to recognize and preserve the inherent advantage of each mode of transportation; (2) to promote safe, adequate, economical, and efficient transportation; (3) to encourage sound economic conditions in transportation, including sound economic conditions among carriers; (4) to encourage the establishment and maintenance of reasonable rates for transportation without unreasonable discrimination or unfair or destructive competitive practices; (5) to cooperate with each State and the officials of each State on transportation matters; (6) to encourage fair wages and working conditions in the transportation industry; and (7) with respect to transportation of property by motor carrier, to promote competitive and efficient transportation services in order to (A) meet the needs of shippers, receivers, and consumers; (B) allow a variety of quality and price options to meet changing market demands and the diverse requirements of the shipping public; (C) allow the most productive use of equipment and energy resources; (D) enable efficient and well-managed carriers to earn adequate profits, attract capital, and maintain fair wages and working conditions; (E) provide and maintain service to small communities and small shippers; (F) improve and maintain a sound, safe, and competitive privately-owned motor carrier system; (G) promote greater participation by minorities in the motor carrier system; and (H) promote intermodal transportation. . The ICC’s position on this question is puzzling. Though its brief here argues that “some evidence” of public demand or need is all that is required, it has clearly announced in Averitt Express, Inc., Extension—Points in the United States, No. MC-121600, Sub. No. 13F (unprinted; Division 1), serv. February 6, 1981, that it does not employ the “some evidence” standard in this context. See also, e.g., Rockingham Carriage Service, Inc., Extension—Trucks, Truck Chassis, Trailers and Busses, No. MC-153553, Sub. No. 1 (unprinted; Division 1), serv. January 8, 1982, which appears to indicate that the ICC requires “substantial evidence” of public demand or need. In numerous instances the Commission has granted applicants authority they did not seek. In [many] cases the applicants applied for authority to transport general commodities (except household goods and classes A and B explosives) but were granted by the Commission authority to haul all general commodities except classes A and B explosives.... The New Certificate Statement has been applied in mechanistic fashion to other applicants. Thus, in Red Arrow Freight Lines, Inc. v. ICC, appeal docketed, No. 81-4109, (5th Cir. Apr. 2, 1981), the applicant testified, in response to an opposing carrier’s argument that it “is not in a position to handle and does not intend to handle [bulk commodities] now or in the foreseeable future,” that it had no tank vehicles or no intention to purchase any, and that the only reason it applied for general commodities unrestricted to bulk was because it believed it had to use that description under the Commission’s “policy statement” Nevertheless, the Commission refused to restrict the grant of authority against transportation of bulk commodities. In Steere Tank Lines, Inc. v. ICC, appeal docketed, No. 81-4170, (5th Cir. May 11, 1981), the petitioner opposed the application because it included bulk commodities pursuant to the “policy statement,” pointing out applicant had never provided bulk service, had no shippers seeking that service now, and had no equipment or intention to render such service. The applicant conceded all these matters and took no position on whether a restriction should be placed on the certificate. The Commission stated that it “no longer favors imposing bulk restrictions” as they are “too restrictive.” . See also Steere Tank Lines, Inc. v. ICC, supra, 666 F.2d at 257, which relies on ATA I for its view that the ICC’s “restriction removal” guidelines “ineluctably compel an applicant to use the categories suggested by the Commission” and have a “coercive effect.” ATA I made findings both with respect to “restriction removal” and “new certificates,” but only a “new certificate” is involved in the present case. . The ICC refers to itself in the plural, apparently overlooking that the United States of America declined to take any position in this case. . The issue of competitive harm has been dropped by Port Norris. Port Norris apparently no longer believes that it could meet its burden under Section 10922(b)(1) of demonstrating that a grant, supported by sufficient evidence of public demand or need, would nevertheless cause such harm as to be “inconsistent with public convenience and necessity.” But, of course, it claims that Dennis has not met its initial burden of showing public demand or need. It may be enough that the applicant is willing and has the financial resources to obtain the equipment since it would not be prudent business practice for a carrier to open new terminals and buy additional equipment before it knows whether the authority it seeks will be granted. . Even Crest Brick Co. did not say that it needed bulk service from Dennis. Crest Brick Co. ships many commodities besides bauxite and aluminum, and it ships bauxite and aluminum in bags, boxes, and drums as well as “loose,” i.e., in bulk. Thus it is quite difficult to support an inference of need for bulk service, even from Crest Brick Co.’s statement. . The ICC also intimates that an additional shipper, Bethlehem Steel, stated that it would require bulk service in the future. Respondent’s Brief at 19 n.19. This is somewhat misleading. So far as the record indicates, Bethlehem Steel appears to ship no commodities susceptible of being transported in bulk (see Addendum to Respondent’s Brief at 27-29), and its concern with future needs seems clearly to be a concern with increased future demand for the same commodities it currently ships. See Appendix at 48. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:

songer_r_bus

2

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Claude ROBINSON, Petitioner, v. MISSOURI MINING COMPANY and Wausau Insurance Company; Director, Office of Workers’ Compensation Programs, United States Department of Labor, Respondents. No. 90-1347. United States Court of Appeals, Eighth Circuit. Submitted Sept. 13, 1991. Decided Feb. 4, 1992. Bradford A. Brett, Mexico, Mo., argued, for petitioner. Mark E. Solomons, Washington, D.C., argued (Laura Metcoff Klaus, on brief), for respondents. Before LAY, Chief Judge, MAGILL and BEAM, Circuit Judges. The Honorable Donald P. Lay was Chief Judge of the United States Court of Appeals for the Eighth Circuit at the time this case was submitted and took senior status on January 7, 1992, before the opinion was filed. BEAM, Circuit Judge. On December 5, 1979, Claude Robinson filed a claim for black lung benefits with the Department of Labor under the Black Lung Benefits Act (Act), 30 U.S.C. §§ 901-945 (1988). After a hearing on October 5, 1984, an Administrative Law Judge denied Robinson’s claim. The Benefits Review Board affirmed the AU’s decision on February 28, 1990. Robinson appeals. We affirm. I. BACKGROUND A lengthy review of the evidence presented at Robinson’s hearing before the AU is not necessary for our purposes; a short discussion of the AU’s reasoning and the BRB’s affirmance will be sufficient. Applying the standards governing eligibility for black lung benefits contained in 20 C.F.R. § 727.203, the AU initially found that sufficient evidence existed to invoke an interim presumption of Robinson’s total disability due to pneumoconiosis (black lung). Robinson had worked as a miner for thirteen years and ventilatory studies, blood gas studies, and medical opinion raised the interim presumption under section 727.203(a)(2), (3), (4). The AU found that conflicting x-ray evidence failed to raise the interim presumption under section 727.203(a)(1). Although sufficient evidence existed to raise the interim presumption, the AU ultimately concluded that the evidence as a whole rebutted the presumption under section 727.203(b)(2), (3), (4). The AU found that Robinson was able to do his usual coal mine work or comparable and gainful work, that Robinson’s disability did not arise out of coal mine employment, and that the medical evidence indicated that Robinson did not have pneumoconiosis. In reaching his final decision, the AU credited the opinion of one examining physician, Dr. Lloyd Hollinger, over that of another, Dr. Max Gutensohn. In Dr. Hol-linger’s view, Robinson was not suffering from pneumoconiosis, but rather from “chronic obstructive pulmonary disease of a very mild degree [that] can be solely related to his smoking history.” Hollinger Report, Sept. 26, 1980, at 2. Dr. Guten-sohn, in contrast, believed that “[i]t would appear, in as much as [Robinson] has not been exposed to any other irritant except for smoking for some periods of time, that he is disabled due to previous coal mine employment.” Gutensohn Report, Sept. 10, 1984, at 2. The AU relied on Dr. Hollinger’s opinion because it was more detailed, less tentative, and included a specific finding that Robinson could return to his work as a caterpillar operator whereas Dr. Gutensohn’s opinion failed to address this issue. Robinson appealed the AU’s decision pro se and the BRB construed his arguments as an assertion that the AU’s order was not supported by substantial evidence on the record as a whole. The BRB affirmed the AU’s order, concluding that substantial evidence supported the AU’s finding concerning rebuttal of the interim presumption under section 727.203(b)(2). In particular, the BRB held that the AU’s decision to credit Dr. Hollinger’s opinion over Dr. Gutensohn’s on the issue of whether Robinson was able to work as a caterpillar operator was rational. Because rebuttal of the interim presumption under section 727.203(b)(2) was sufficient to uphold the AU’s decision, the BRB declined to review the ALJ’s other findings. II. DISCUSSION Our review of the BRB’s order is very limited. The BRB cannot set aside the AU’s factual findings unless the findings are not supported by substantial evidence in the record as a whole. See 30 U.S.C. § 932(a) (1988); 33 U.S.C. § 921(b)(3) (1988). If the AU’s findings satisfy this requirement, the BRB must affirm even though it might have reached a different conclusion than the AU were it the fact-finder. E.g., Brown v. Director, Office of Workers’ Compensation Programs, 914 F.2d 156, 158 (8th Cir.1990). In particular, the decision to credit one of two conflicting medical opinions as better documented and reasoned belongs to the AU as fact-finder. See Phillips v. Director, Office of Workers’ Compensation Programs, 768 F.2d 982, 984 (8th Cir.1985). Our role on appeal is merely to assure that the BRB adhered to the proper standard of review. To fulfill this role, we examine the AU’s findings under the same standard. E.g., Brown, 914 F.2d at 158. After review of the record before the AU, we agree with the BRB that the AU’s decision to credit Dr. Hollinger’s opinion over Dr. Gutensohn’s is supported by substantial evidence in the record as a whole and is not contrary to law. Robinson asserts that the AU’s reliance on Dr. Hollinger is improper as a matter of law because Dr. Hollinger’s diagnosis was the result of subjective opinions concerning pneumoconiosis hostile to the spirit of the Act. In particular, Robinson contends that Dr. Hollinger testified that he would never diagnose pneumoconiosis absent a positive x-ray. The BRB has held that an AU may discount the opinion of a physician who holds such a view because the view directly contravenes a specific provision of the Act. Nagle v. Barnes & Tucker Co., 1 Black Lung Rep. (MB) 1-961, 1-965 (Ben.Rev.Bd.1978); accord Black Diamond Coal Mining Co. v. Benefits Review Bd., 758 F.2d 1532, 1534 (11th Cir.1985). The present-case, however, is distinguishable. Dr. Hol-linger’s exact testimony was that someone would have to have an abnormal x-ray if they were “totally impaired” due to pneu-moconiosis, and merely agreed that he “would not be inclined” to diagnose pneu-moconiosis absent an abnormal x-ray. Hol-linger Deposition Transcript at 50-51. Furthermore, read in its full context, Dr. Hol-linger’s testimony was that considering Robinson’s smoking history, the absence of a positive x-ray led him to conclude that Robinson’s respiratory problems were the result of smoking and not pneumoconiosis. Id. at 33. On cross-examination, Dr. Hol-linger expressly stated that his conclusion was based on all the medical information available to him (which included the results of ventilatory studies, arterial blood gas tests, an electrocardiogram, as well as two x-rays). Id. at 38. While Dr. Hollinger’s opinion regarding Robinson was certainly based in part on the lack of a positive x-ray, it was not based solely on this. His opinion, therefore, was not based on a medical theory hostile to the Act. Robinson further argues that the AU should have credited Dr. Gutensohn’s opinion because it was based on more recent information. Dr. Hollinger’s opinion was based on a personal examination and the results of tests performed in 1980, including negative x-rays. Dr. Gutensohn’s opinion was based on a personal examination and the results of tests performed in 1984, including a positive x-ray (which was the only x-ray taken since 1980). As pneu-moconiosis is a progressive disease, the AU certainly should consider the temporal proximity of conflicting test results in determining which of two different medical opinions to credit. See Mullins Coal Co. v. Director, Office of Workers’ Compensation Programs, 484 U.S. 135, 151-52, 108 S.Ct. 427, 436, 98 L.Ed.2d 450 (1987). Temporal proximity, however, is simply a factor to be considered, not a controlling one. Viewing the record as a whole, we conclude that substantial evidence exists to support the AU’s decision to credit Dr. Hollinger’s opinion that Robinson’s respiratory problems were the result of his smoking history and not his exposure to coal dust, despite the comparative age of the information upon which the opinion was based. Robinson also challenges the AU’s decision to credit the portion of Dr. Hollinger’s opinion concerning Robinson’s ability to return to work as a caterpillar operator. Robinson emphasizes that Dr. Hollinger did not ask Robinson about the specifics of his job, which included cleaning mud from the caterpillar’s tracks at the end of the shift. Robinson introduced evidence that this was the most strenuous part of the job. See Ray Williams Deposition Transcript at 10. Dr. Hollinger, however, did testify that he was familiar with the general operation of heavy machinery, including caterpillars, and Dr. Gutensohn expressed no opinion whatsoever on the issue. Furthermore, statements which Robinson made during an interview with a representative of his former employer implied that he retired mainly because of his age, 65, and not his respiratory problems. Employer’s Exhibit 3, at 4, 8. Given the high degree of deference that we must accord the AU’s findings of fact, we are unable to hold that the AU’s decision to credit this portion of Dr. Hol-linger’s testimony is not supported by substantial evidence. III. CONCLUSION We conclude that the AU’s decision to credit Dr. Hollinger’s opinion over Dr. Gu-tensohn’s is supported by substantial evidence in the record as a whole. Because Dr. Hollinger’s opinion that Robinson is able to return to work as a caterpillar operator is sufficient to rebut the interim presumption of pneumoconiosis and to uphold the AU’s denial of Robinson’s claim for black lung benefits, we affirm the BRB’s order. . The dissent asserts that Dr. Hollinger must have based his conclusion solely on the lack of a positive x-ray, because the other test results available to him raised a presumption of pneu-moconiosis. We do not agree with the dissent’s analysis. The results of the ventilatory studies and arterial blood gas tests merely raised a presumption of pneumoconiosis as a matter of law because of Robinson’s coal mining experience, see 20 C.F.R. § 727.203(a)(2), (3), they did not require a diagnosis of pneumoconiosis as a matter of medical science. Moreover, the blood gas tests revealed a significant amount of car-boxyhemoglobin, which was related to Robinson’s smoking. Hollinger Report, Sept. 26, 1980, at 3. Dr. Hollinger’s conclusion, therefore, was not inherently inconsistent with the other test results. . The dissent also asserts that the AU's reliance on Dr. Hollinger’s opinion is misplaced because Dr. Hollinger’s report is inaccurate regarding Robinson’s coal mining experience. Under the circumstances, however, we find this argument unconvincing. Both Dr. Gutensohn’s and Dr. Hollinger’s reports contain some inaccurate background information. Dr. Gutensohn, for example, significantly understated the extent of Robinson’s smoking history. Robinson testified that he smoked one can of pipe tobacco every week or week and one half for twelve years, up to one pack of cigarettes per day for eleven years, and up to three to four cigarettes per day for four more years. Hearing Transcript at 29-30. According to Dr. Gutensohn’s report, Robinson smoked about one pack per day for twelve years and for part of that time, had just one cigarette after meals. Gutensohn Report, Sept. 10, 1984, at 1. Thus, in this case, the ALJ had to credit one medical opinion based in part on inaccurate information over another opinion with the same flaw. Viewing the record as a whole, we believe that substantial evidence exists to support the AU’s decision here. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:

songer_respond1_3_2

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. MEANEY v. UNITED STATES. No. 30. Circuit Court of Appeals, Second Circuit June 10, 1940. Edmund Clynes, of Rochester, N. Y., for appellant. Thomas E. Walsh, of Washington, D. C., for appellee. Before L. HAND, CHASE, and PATTERSON, Circuit Judges. L. HAND, Circuit Judge. This is an appeal from a.judgment entered upon the verdict of a jury, dismissing a petition in an action to recover upon a policy of war risk insurance. The insured rvas mustered out on December 31, 1918, and the policy lapsed on January 30, 1919; he died of pulmonary tuberculosis on July 6, 1922, and the question was whether he was permanently and totally disabled when the policy lapsed. He had consulted one physician at some time, not definitely fixed, in 1919, and another in December, 1920, who found that he had contracted tuberculosis, and that it was already “moderately advanced”. By April of 1921 the disease had so far developed that he had to go to a sanatorium, where lie stayed 1 ill January, 1922, only six months before his death. The only error we need consider was a ruling, made during the examination of the physician who had first examined him in December, 1920. This witness said that he had taken care of the insured both at that time and after he came back from the sanatorium; and he was allowed to testify as to what he found on his several examinations, hut the judge refused to let him say what the insured had told him of the “history of the case”. It is true that the plaintiff did not make any formal offer of proof such as Rule 43(c), Rules of Civil Procedure, provides for, but, while that would have been useful, it was not an absolute condition upon availing himself of the error. Moreover, he did almost the equivalent when he said that the “history” excluded was the “crux of the whole case” and that if it could not be obtained from the physician, it could not be obtained at all. The first physician who had examined him was dead, and the insured’s declarations as to the time of the onset of his disease and its immediate severity were quite likely to be determinative. If the testimony was competent, its exclusion probably affected “the substantial rights of the parties”. Rule 61. The insured’s declarations seem to have been offered as a narrative of his past condition; so far as appears they were no part of the basis of the physician’s opinion as to his condition; at least they were not offered as such. They were therefore hearsay, and moreover, they did not fall within the generally accepted exception in favor of spontaneous expressions of pain or the like. It is quite true that this exception includes narrative statements as well as mere ejaculations, and that it has been extended to a declaration of present symptoms told by a patient to a physician. Northern Pacific R. R. v. Urlin, 158 U.S. 271, 274, 15 S.Ct. 840, 39 L.Ed. 977; Boston & Albany R. Co. v. O’Reilly, 158 U.S. 334, 337, 15 S.Ct. 830, 39 L.Ed. 1006; Delaware L. & W. R. Co. v. Roalefs, 3 Cir., 70 F. 21 (semble); Chicago Railways Co. v. Kramer, 6 Cir., 234 F. 245, 251; London G. & A. Co. v. Woelfle, 8 Cir., 83 F.2d 325, 335 (semble); Hartford A. & I. Co. v. Baugh, 5 Cir., 87 F.2d 240, 241, 242; Davidson v. Cornell, 132 N.Y. 228, 237, 238, 30 N.E. 573. The utterances of a patient in the course of his examination, so far as they are spontaneous, may be merely ejaculatory — as when he emits a cry upon palpation — or they may he truly narrative; and it will often be impossible to distinguish rationally between the two; between an inarticulate cry, for example, and a statement such as: “That hurts”. The warrant for the admission of both is the same; the lack of opportunity or motive for fabrication upon an unexpected occasion to which the declarant responds immediately, and without reflection. But most of what he tells will not ordinarily he of this kind at all; there may be, and there is in fact, good reason to receive it, hut it is a very different reason. A man goes to his physician expecting to recount all that he feels, and often he has with some care searched his consciousness to be sure that he will leave out nothing. If his narrative of present symptoms is to be received as evidence of the facts, as distinguished from mere support for the physician’s opinion, these parts of it can only rest upon his motive to disclose the truth because his treatment will in part depend upon what he says. That justification is not necessary in the case of his spontaneous declarations, even when they are narrative; but it is necessary for those we are now considering. This, as we understand it, is the doctrine of Barber v. Merriam, 11 Allen, Mass., 322. The same reasoning applies with exactly the same force to a narrative of past symptoms, and so the Supreme Court of Massachusetts, declared obiter in Roosa v. Boston Loan Co., 132 Mass. 439. A patient has an equal motive to speak the truth; what he has felt in the past is as apt to be important in his treatment as what he feels at the moment. Thus, in spite of the dicta in Northern Pacific R. R. v. Urlin, supra (158 U.S. 271, 15 S.Ct. 840, 39 L.Ed. 977) and Boston & Albany R. R. v. O’Reilly, supra (158 U.S. 334, 15 S.Ct. 830, 39 L.Ed. 1006) that only declarations of present symptoms are competent, several federal courts have seemed not to take the distinction between declarations of present and past symptoms, provided the patient is consulting the physician for treatment, and Professor Wigmore appears to assent. Wigmore § 1722. United States v. Tyrakowski; 7 Cir., 50 F.2d 766, 771; United States v. Nickle, 8 Cir., 60 F.2d 372, 374; United States v. Roberts, 10 Cir., 62 F.2d 594, 596; United States v. Calvey, 3 Cir., 110 F.2d 327, 330. This situation is quite different from United States v. Balance, 61 App.D.C. 226, 59 F.2d 1040 where the declarations were made by a veteran to physicians of the Veterans’ Administration; and it is obviously different from declarations of facts irrelevant to the declarant’s treatment, such as what was the cause of his injury. It is true that this body of authority is not impressive as such, but it appears to us that if there is to be any consistency in doctrine, either declarations of all symptoms, present or past, should be competent, or only those which fall within the exception for spontaneous utterances. Nobody would choose the second, particularly as the substance of the declarations can usually be got before the jury as parts-of the basis on which the physician’s opinion was formed. It is indeed always possible that a patient may not really consult his physician for treatment; the consultation may be colorable. The judge has power to prevent an abuse in such cases, and here as elsewhere, when the competency of evidence depends upon a question, of fact, his conclusion is final. He must decide before admitting the declarations, whether the patient was consulting the physician for treatment and for that alone. Unless he is so satisfied, he must exclude them, though it is true that if he admits them, the defendant may still argue that they are untrustworthy. They will be evidence, but in estimating their truth the jury may have to decide for themselves the very issue on which the judge himself passed before he admitted them; the competency of evidence is always independent of its weight. We hold that the insured’s “history of the case” as narrated to the physician was competent and that its exclusion was error. Judgment reversed; new trial ordered. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:

songer_direct2

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal in suits against management, for union, individual worker, or government in suit against management; in government enforcement of labor laws, for the federal government or the validity of federal regulations; in Executive branch vs union or workers, for executive branch; in worker vs union (non-civil rights), for union; in conflicts between rival union, for union which opposed by management and "not ascertained" if neither union supported by management or if unclear; in injured workers or consumers vs management, against management; in other labor issues, for economic underdog if no civil rights issue is present; for support of person claiming denial of civil rights. 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. Mike AUSTFORD, Appellant, v. Arthur J. GOLDBERG, Secretary of Labor, United States Department of Labor, Appellee. Nos. 16665, 16666. United States Court of Appeals Eighth Circuit. June 29, 1961. Mart R. Vogel, Fargo, N. D., made argument for the appellant; Philip B. Vogel, Fargo, N. D., was on the brief for appellant. Beate Bloch, Atty., U. S. Dept, of Labor, Washington, D. C., made argument for appellee. Charles Donahue, Solicitor of Labor, and Bessie Margolin, Asst. Solicitor of Labor, Washington, D. C., and Harper Barnes, Regional Atty., Dept, of Labor, Kansas City, Mo., were with Beate Bloch, Washington, D. C., on the brief. Before JOHNSEN, Chief Judge, and WOODROUGH and MATTHES, Circuit Judges. WOODROUGH, Circuit Judge. These two actions, which were consolidated for trial, were brought by the Secretary of Labor under the Fair Labor Standards Act of 1938, as amended. (29 U.S.C.A. § 201 et seq.) No. 16,665 was under Section 17 of the Act to enjoin defendant employer from violating the Act’s overtime requirements. No. 16,666 was under Section 16(c) of the Act to recover unpaid wages for overtime pursuant to the written requests of appellant’s employees, Don A. Shambaugh, Keith G. Shambaugh and Richard Shambaugh. There was evidence that appellant, Mike Austford, operates a road construction business from his home in Pembina County, North Dakota, employing between six and nine employees as gravel truck drivers, caterpillar tractor operators, sand and gravel pit operators, and in machine maintenance and shop repair. Appellant and his employees worked on township, county and, in, some instances, state roads, located in the county. These roads included North Dakota Highway No. 32 which runs in a north-south direction from the Canadian border to the South Dakota State line; Pembina County Highway No. 1 which joins State Highway No. 18 that also runs the length of the state; Pembina County Highway No. 3 which runs east-west between State Highway Nos. 18 and 32; and Pembina County Highway No. ,55 which connects State Highway No. 18 with State Highway No. 32 and with United States Highway No. 81, the latter extending from the Canadian border to the city of Laredo on the Mexican border. The map of Pembina County shows that all of the roads in the county, including the other roads worked on by appellant’s employees, formed a network, in which each individual road is connected, either directly or indirectly through other roads, to one or more of these highways. The employees dump the gravel on the roads with a dump truck, and it is then bladed either by the county or by the employees. Appellant’s work is performed primarily on dirt and graveled roads, although some of the roads were later paved with a hard surface. Not only are the roads worked on by appellant’s employees inter-connected with other roads joining the interstate highway system, but the undisputed evidence shows that the particular township, county and state roads here involved were, and are, used for the movement of goods in interstate commerce, as follows: 1. By the United States Post Office Department in the delivery of mail over roads worked on by appellant in Pembina County from points outside the State of North Dakota; 2. By the interstate carriers in the delivery of commodities in interstate commerce evidenced by testimony of the owner of a film delivery service, who delivered film from the terminal in South Dakota to movie theaters in Pembina County, and a carrier who hauled interstate freight over some of the roads worked on by appellant, both of whom were licensed as interstate carriers by the Intel-state Commerce Commission; 3. By area farmers to transport agricultural products from farm to shipping point, following which most of the products were shipped to points outside of North Dakota based upon testimony of an associate agricultural economist with the North Dakota Experimental Station in Fargo, who testified that substantially all of the wheat, rye, flax and potatoes raised in Pembina County are marketed outside the State of North Dakota, grains generally being carried by truck from the farm to a local elevator for cleaning or treatment, prior to shipment outside the state, and potatoes being delivered by truck by the farmer to a potato warehouse, where they are cleaned and then shipped outside the state. The manager of the Agricultural Stabilization and Conservation Office in Pembina County testified that the sugar beets harvested in the county are hauled by the farmers to four loading stations, from which the railroads transport them to the sugar refineries located in Minnesota and surrounding states. The three employee-claimants in case No. 16,666 also testified about the road work they performed while working for appellant in 1957 and 1958. Frank Gerlach, a Wage-Hour investigator, then presented computations, which were not disputed, about the amount which these employees would have received if they had been compensated in accordance with the Act’s requirements. Appellant testified that he had begun paying his employees one and one-half times the base pay for work in excess of forty hours per week in the spring of 1959. The Wage-Hour investigator testified that at the conclusion of his investigation toward the latter part of January, 1959, appellant stated that he would comply with the Act in the future, but in a subsequent discussion, appellant “was indefinite as to whether or not he would comply” and that “on advice of an attorney he apparently had changed his mind.” On the basis of its findings of fact the trial court concluded that the roads worked on by appellant and his employees were instrumentalities of interstate commerce, and that the employees were therefore “engaged in commerce” under the Act. Accordingly, the court issued an injunction in No. 16,665 and having concluded that the “issue of law” in the case was “settled finally by the courts,” awarded judgment in No. 16,666 for unpaid overtime compensation found due the three employee-claimants. 1. On the first contention attacking the Act’s coverage of repair and maintenance of the county and township dirt and gravel roads wholly within Pembina County, we think the district court’s ruling was in conformity with the decision of this Court in Mitchell v. Brown, 8 Cir., 224 F.2d 359, certiorari denied 350 U.S. 875, 76 S.Ct. 119, 100 L.Ed. 773. In that case we upheld the Act’s coverage of employees of a professional or consulting engineer engaged in the preparation of plans and specifications and providing inspection service for projects which included the paving of streets in certain towns in Iowa. It was obvious that the streets in that case primarily served intrastate purposes, but they carried persons and goods that were passing between states and we recognized them to be instrumentalities of interstate commerce. In the present case, the roads appellant and his employees worked on served the same purposes and we think they likewise were such instrumentalities. In Mitchell v. Brown, supra, we cited and relied upon Overstreet v. North Shore Corporation, 318 U.S. 125, 63 S.Ct. 494, 497, 87 L.Ed. 656, which establishes that the Act covers employees engaged in the operation, maintenance or repair of “[vjehicular roads and bridges * * * used by persons and goods passing between the various States * * * are instrumentalities of interstate commerce.” The Supreme Court also stated quoting Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460, “It is clear that the purpose of the Act was to extend federal control in this field throughout the farthest reaches of the channels of interstate commerce.” And it is not material that the roads are not themselves interstate highways but are feeders or extensions within the reaches of the main channels. The Overstreet case involved a privately owned and operated toll road and bridge located wholly within the bounds of Duval County, Florida, and was used primarily for local traffic since it led only to a village with a population of approximately one hundred citizens. The district court had denied coverage of the employees engaged in its operations and maintenance, because of the view expressed in Covington & Cincinnati Bridge Co. v. Com. of Kentucky, 154 U.S. 204, 14 S.Ct. 1087, 38 L.Ed. 962, that the business of operating a toll bridge over which interstate and foreign commerce traveled was not immune from state taxation as interstate business. The Supreme Court reversed the judgment and after remand, the Court of Appeals, in affirming the judgment entered for the employees, pointed out that the Supreme Court’s coverage ruling was “based upon the fact of interstate use rather than upon the extent of such use” and held it determinative that the toll road was “an instrumentality * * * over which goods and persons in interstate and intrastate movements alike are being transported” and is “open and available at all times for interstate use.” North Shore Corp. v. Barnett, 5 Cir., 143 F.2d 172, 174. This characterization equally describes the roads on which appellant’s employees worked. Other courts have consistently found Overstreet v. North Shore Corp., supra, decisive of the Act’s coverage of repair and maintenance work on county and rural roads and reconstruction of existing interstate facilities. In Emulsified Asphalt Products Company v. Mitchell, 6 Cir., 222 F.2d 913, 914, upholding the Act’s coverage of employees of an asphalt producer supplying material for use on city, town and county streets and roads, rejected the employer’s argument that roads built primarily for local traffic were not instrumentalities of commerce, since the Supreme Court had held, in Over-street, that “if vehicular roads and bridges ‘are used by persons and goods passing between the various States, they are instrumentalities of interstate commerce.’ ” Similarly, in Mitchell v. Raines, 5 Cir., 238 F.2d 186, 187, the court held that evidence showing that roads “were regularly used in the transmission of United States postal matter and for the transportation of goods to and from points in Georgia and other states [positively established] [t]heir character as direct instrumentalities of interstate commerce * * In Walling v. McCrady Const. Co., 3 Cir., 156 F.2d 932, certiorari denied 329 U.S. 785, 67 S.Ct. 298, 91 L.Ed. 673, the court held the Act applicable to employees engaged in the maintenance, repair and reconstruction of county roads and streets as various interstate instrumentalities, including a city street only twelve blocks long, used primarily for local traffic which did not even bear designation as state highways and relocation of a portion of a county road. The most recent decision, Quilichini v. Kelley, D.C., 176 F.Supp. 889, 891, held there was coverage under the Act for employees engaged in the new construction of sections of rural secondary roads in Puerto Rico. The court upheld coverage although it found, “[t]he roads involved are not the super-expressway type of highway * * *. Indeed, not only are they of a most secondary class, one of them, Road No. 157, is not completed in one section, and in the other section comes to a dead end. Not even the ubiquitous United States mail uses it as a route. Only raw coffee beans and truck farming crops go over it. No industrial establishments grace its side." In Compania De Ingenieros y Contratistas, Inc. v. Goldberg, 1 Cir., 289 F.2d 78, 80, the court recites the following facts as affording adequate support for the court’s holding that the employees constructing these roads are covered by the Act: “[E]ach of the roads involved in these two cases was through areas producing at least some agricultural products which were transported, sometime after processing, in interstate commerce. The transportation of such products from areas alongside and near the roads * * * was generally over other roads which connect or would connect with the roads here involved. * * * ‘[S]aidroads * * * [were] joined to and formed a part of the road and highway system of the Commonwealth of Puerto Rico and * * over those roads to which said roads * * [were] joined, there was such [interstate] trade, commerce, transportation, transmission and communication.’ ” Among the many other decisions applying the Overstreet principles in varying fact situations comparable to the present one, we consider the following to be pertinent: Crook v. Bryant, 4 Cir., 265 F.2d 541, 543, holding that the West Virginia Turnpike, although “a limited access toll road * * * used by vehicles traveling interstate, not by necessity but for convenience only, * * * [nevertheless] is a connecting link of the system of interstate highways and thus serves as an instrumentality of interstate commerce”; Walling v. Craig, D.C., 53 F.Supp. 479, 430, holding the Act applicable although “each section of public road or highway repaired, maintained or reconstructed by defendants and their employees * * * lies wholly within a single State but each of said sections was a part of a network of roads and highways regularly traversed by vehicles operated by common and contract carriers and private persons for the transportation of persons and property from one State to another * * * ”; Mitchell v. L. Antonsanti, Inc., 14 WH Cases 398, 38 L.C. (CCH) para. 65,922 (D.P.R.1959, not officially reported), where two city streets within the municipality of San Juan were held to be instrumentalities of interstate commerce; and Mitchell v. Stewart Brothers Construction Co., D.C., 184 F.Supp. 886, 889, where the court recognized that, “[c] onsidering the integrated road system and great mobility of motor vehicles of today, it would be difficult to find a road which is well-traveled at all, that would not be deemed an instrumentality of interstate commerce.” We think the authorities support the trial court’s conclusion that the roads here involved, in view of their proven use for the movement of persons and commodities “passing between the various States,” are instrumentalities of interstate commerce, so that appellant’s employees, engaged in their maintenance and repair, are “engaged in commerce” [187 F.Supp. 920] within the coverage of the Fair Labor Standards Act. Mitchell v. C. W. Vollmer and Co., 349 U.S. 427, 75 S.Ct. 860, 99 L.Ed. 1196; J. F. Fitzgerald Construction Co. v. Pedersen, 324 U.S. 720, 65 S.Ct. 892, 89 L.Ed. 1316; and McLeod v. Threlkeld, 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538. 2. Section 16(c) limits the Secretary's authority to bring suit on behalf of an employee for the recovery of unpaid wages to cases in which the issues of law have been “settled finally by the courts.” The two appellate courts which have had occasion' to discuss this proviso have pointed out that an “extreme and unreasonable” insistence upon “pre-existing judicial precedents squarely in point” would “virtually nullify the salutary provision for the recovery of unpaid compensation without expense to the claimant.” The differences between the situation in the present cases and the cases in which the meaning and scope of the Act have been determined are differences between a paved road and a graveled road or between a township road and a private toll road or a town street, all of which carry person and goods passing from one state or county to another state in interstate commerce and present no difference in legal principle. The differences are not legally significant since they were merely incidental factual variations such as obtained between any two cases however alike as to the fundamental principle which controls their disposition. In Mitchell v. Emala & Associates, Inc., 4 Cir., 274 F.2d 781, the court held that the difference between fill dirt and other man made material used in road construction did not bring into play the proviso of Section 16(c) of the Fair Labor Standards Act. The issues of law in the present cases appear to us to have been “settled finally” if not conclusively, by Overstreet v. North Shore Corporation, 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656, and at least more than five years ago by this Court in Mitchell v. Brown, 8 Cir., 244 F.2d 359, subject only to their application to ever varying factual situations. 3. Appellant asks this Court to reverse the trial court’s issuance of an injunction as an abuse of discretion, because defendant has come into compliance with the Act. However, appellant concedes that he has complied with the Act under the pressure of administrative investigations “and because he had to compete for employees in Pembina County’s labor market” and not “because he felt he was under the Fair Labor Standards Act.” Under these circumstances, the grant of injunctive relief was clearly an appropriate exercise of the discretion vested in the trial court. As this Court held, in Chambers Construction Co., v. Mitchell, 8 Cir., 233 F.2d 717, 725, “[wjhere the violation established is likely to resume, the court should grant an injunction.” In Compania De Ingenieros y Contratistas, Inc. v. Goldberg, 1 Cir., 289 F.2d 78, 81, the court, under circumstances similar to those presented here, affirmed the trial court’s grant of injunctive relief “[i]n view of the admitted intent of defendants to continue in the business of highway construction in the future and of the possibility on similar future construction of asserting the same argument that the construction is not covered by the Act * * In Goldberg v. Kickapoo Prairie Broadcasting Co. et al., 8 Cir., 288 F.2d 778, 783, this Court held that it was error for the trial court to deny injunctive relief, observing that “injunctive relief is not punitive but remedial — if defendants ‘comply with the law they lose nothing by the injunction.’ ” It was clearly a sound exercise of the court’s discretion to grant such remedial injunctive relief here, where appellant, having come into temporary compliance only because of outside pressures, still refuses to acknowledge the long line of judicial authorities which have established the Act’s applicability to his operations. 4. Appellant has also argued that the findings and judgment of the court are in conflict with the Tenth Amendment and Article 1 of Section VIII of the Constitution of the United States. We are of the opinion after study of United States v. Darby, 312 U.S. 100, 657, 61 S.Ct. 451, 85 L.Ed. 609, and the same cases cited on this point for appellant that the claim of unconstitutionality is without merit. J. F. Fitzgerald Construction Co. v. Pedersen, 324 U.S. 720, 65 S.Ct. 892, 89 L.Ed. 1316; Overnight Motor Transportation Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682; A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Covington & Cincinnati Bridge Co. v. Commonwealth of Kentucky, 154 U.S. 204, 14 S.Ct. 1087, 38 L.Ed. 962; Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23. We conclude that the judgments appealed from are without error. Affirmed. . Arthur J. Goldberg was substituted as appellee in tlie place of James P. Mitch- . ell, former Secretary of Labor, by order of this Court, dated January 30, 1961. . Section 16(c) provides: “* * * When a 'written request is filed by any employee with the Secretary of Labor claiming unpaid minimum wages or unpaid overtime compensation under section 206 or section 207 of this title, the Secretary of Labor may bring an action in any court of competent jurisdiction to recover the amount of such claim: Provided, That this authority to sue shall not be used by the Secretary of Labor in any case involving an issue of law which has not been settled finally by the courts, and in any such case no court shall have jurisdiction over such action or proceeding initiated or brought by the Secretary of Labor if it does involve any issue of law not so finally settled.” Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:

songer_counsel2

D

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Peni NITZ, Plaintiff-Appellee, v. Darrell NITZ, Defendant-Appellant. No. 76-1412. United States Court of Appeals, Tenth Circuit. Dec. 22, 1977. Pete N. Vlahos, Ogden, Utah, for plaintiff-appellee. Philip C. Patterson, Ogden, Utah, for defendant-appellant. Before HOLLOWAY and BARRETT, Circuit Judges, and BOHANON, District Judge. The Honorable Luther L. Bohanon of the Western District of Oklahoma, sitting by designation. HOLLOWAY, Circuit Judge. Darrell Nitz appeals from a judgment of the district court which reversed a bankruptcy judge’s determination that certain financial obligations incurred by Darrell and Peni Nitz during their marriage, and assumed by Darrell Nitz pursuant to their divorce decree, do not constitute non-dis-chargeable obligations for alimony or for maintenance or support of wife or child, 11 U.S.C. § 35(a)(7) (1970), but rather are in the nature of a property settlement and are therefore dischargeable in bankruptcy. The record shows the following facts which are undisputed: During 1974, Peni Nitz commenced an action in the District Court of Weber County, Utah, to obtain a divorce from Darrell Nitz. Darrell Nitz consented to allow Peni Nitz to obtain the divorce by default, which was agreed to by a written “Stipulation of Agreement.” (R. II, 21). The stipulation and the Divorce Decree entered in December, 1974 (R. II, 19), provided in relevant part that Darrell Nitz pay child support of $75 per month for each of the parties’ two children, that he pay $100 per month alimony for a period of six months and $1 per year thereafter, and that he assume and discharge all the financial debts and obligations incurred by the parties during the marriage, with the exception that Peni Nitz was ordered to assume and discharge the mortgage on the-home of the parties. (R. II, 19-20). The financial obligations which Darrell Nitz was ordered to assume and satisfy, and whose dischargeability in bankruptcy is in dispute, include a $1500 down payment balance on the home that the parties had acquired during the marriage, a partially secured loan with a balance of $3700 executed by both parties, an unsecured loan with a balance of $500 signed by Peni Nitz alone, a retail store charge account balance accrued by Peni Nitz and a Master Charge card balance of $675.60. (R. II, 7). Peni Nitz was awarded the sole ownership and possession of the home which the parties had acquired and jointly owned during the marriage, together with the equity therein and was further awarded all household furnishings and appliances. (R. II, 8). The parties were ordered to divide equally their 1974 federal and state income tax refunds and Peni Nitz was allowed to claim the two children of the parties as dependents on her personal income tax returns for each calendar year following the calendar year 1974. (R. II, 20). Finally, Darrell Nitz was ordered to maintain a life insurance policy on himself, naming the children as beneficiaries. He was also ordered to maintain policies on the children, which policies were to designate both his former wife and himself as beneficiaries. (R. II, 20). Both parties were gainfully employed when the divorce action was commenced and at the time the divorce decree was entered. The bankruptcy judge found that Darrell Nitz was then employed as a construction equipment operator, and also earned some income as a reservist in the United States Army Reserve. His gross income for the calendar year 1974 from these sources was approximately $10,400. Peni Nitz was then employed by the Internal Revenue Service and her gross income for the calendar year of 1974 was approximately $9,066. (R. II, 8). Darrell Nitz petitioned for voluntary bankruptcy in the bankruptcy court division of the district court in May, 1975. In July, 1975, Peni Nitz filed a complaint in the bankruptcy court for a determination that the obligations in question, alleged therein to be for support and alimony, are not dischargeable. After trial, the bankruptcy judge entered findings that the financial obligations other than the specifically enumerated alimony and child support items constitute a property settlement between the parties and concluded that, therefore, they are dischargeable in bankruptcy. (R. II, 9-10). Peni Nitz appealed this adverse judgment to the district court. That court reversed, holding that the financial obligations in question are for support, alimony and maintenance of the minor children and are therefore not dischargeable in bankruptcy. (R. II, 16-17). On appeal, Darrell Nitz argues that the district court erred in its ruling because the findings of fact of the bankruptcy judge in his favor were not clearly erroneous, that appellee Peni Nitz failed to order a transcript of the trial in the bankruptcy court for appropriate appellate review of the court’s findings, and that the findings and conclusions of the bankruptcy court were a correct application of Utah law. (Brief of Defendant-Appellant, 6-10). To sustain the district court’s ruling in her favor appellee Peni Nitz replies that the findings of the district court were based on sufficient evidence to reverse the bankruptcy judge, that intent of the stipulation and decree was clear on the face of those instruments and could not be re-established by testimony, and that appellant Darrell Nitz, if he thought the record relevant, had failed to exercise his right to augment the record by obtaining a transcript of the bankruptcy court’s trial. (Brief of Plaintiff-Appellee, 7, 10). We must consider Utah law carefully since our question as to whether the obligations are in the nature of alimony or support, as opposed to a property settlement, is determined by state law. In Re Waller, 494 F.2d 447, 448 (6th Cir.); see In Re Cox, 543 F.2d 1277, 1279 (10th Cir.); cf. DeSylva v. Ballantine, 351 U.S. 570, 580, 76 S.Ct. 974, 100 L.Ed. 1415. The Utah statute under which a decree providing for alimony and support and maintenance of a wife and children may be entered is § 30-3-5, Utah Code Annotated (1953). Two of the principal Utah cases on the question before us are Erickson v. Beardall, 20 Utah 2d 287, 437 P.2d 210, and Lyon v. Lyon, 115 Utah 466, 206 P.2d 148. In Erickson the Court held certain obligations imposed by the divorce decree were not dischargeable in bankruptcy: obligations for a balance on a note to the wife, a debt for siding on a family home, debts to a bank, and debts for a car and a television set. The Court stated, 437 P.2d at 212-13, that in determining whether obligations imposed by a divorce decree constitute alimony and support rather than a property settlement: We reaffirm and apply the principle of the Lyon case: that it is the duty of the court to look to substance rather than to form [of the divorce decree]. * * * * * * It is shown that the plaintiff’s means of support would have been inadequate without the provision of the decree that the defendant pay these obligations, and there is ample basis for the trial court’s finding that this requirement was for her support and maintenance. That conclusion is not defeated by the fact that it also has the coincidental effect of reimbursing the plaintiff for money that had been expended for the benefit of the family during the marriage. (Emphasis added). Thus the obligations were enforced, despite the objections that they had been discharged in bankruptcy, since it had been “shown” that the wife’s means of support would have been “inadequate” without payment of the obligations in question. In Lyon v. Lyon, supra, the Utah Court also held that unpaid obligations had not been discharged in bankruptcy. The terms “alimony” and “support money” did not appear in a stipulation for a divorce judgment of $5,000, payable at $50 or more per month, for payment of a mortgage by the husband on land owned by the parties, and for carrying a life insurance policy naming the wife as beneficiary until the $5,000 judgment and mortgage were paid. Nevertheless, the Utah Supreme Court pointed to evidence of discussions that the $5,000 was for the wife’s “support and maintenance,” id. at 151, and stressed the trial court’s reasoning that, looking behind the decree and stipulation, much of the property awarded was “in the nature of alimony” and contemplated to be for the support and maintenance of the wife. Id. at 150. The Court said that the provisions for carrying insurance on the husband’s life, with the wife named as beneficiary, and giving her all the household furniture and furnishings (similar provisions are in the Nitz decree) pointed to the idea of support. Id. at 151. However, the Court also pointed to evidence of “positive testimony” that the obligations were for the wife’s support and maintenance and to evidence that the wife was practically unemployable at her age. Id. at 151. In short, in the Utah cases the Court looked in detail at proof establishing the character of the provisions as being for support. Here, however, the record does not furnish such a basis to support the wife’s contention. In our case, we can only consider the facts and circumstances that appear on the face of the stipulation and decree and in the findings of the bankruptcy judge, since no further record was brought up. There were specific provisions in the instruments for child support of $150 per month and for $100 of alimony per month for six months, and $1.00 per year thereafter. Beyond that, the obligations were not stated to be for alimony or maintenance or support of the wife or children. Here, unlike Erickson, supra, 437 P.2d at 212, there is no evidence or finding that without payment of the obligations the provisions for the wife would have left her with inadequate means of support. Furthermore, the findings do not show her to have been practically unemployable as in Lyon, supra, 206 P.2d at 151. On the contrary, it was found that she earned approximately $9,066 in 1974 as an IRS employee. (R. II, 8). The wife as the party objecting to the discharge “has the burden of proving the facts essential to [her] objection.” Rule 407, Federal Bankruptcy Rules. The bankruptcy judge was not persuaded by the proof and found that with the exception of the express provisions for alimony and child support, “all remaining obligations imposed on Darrell Nitz, and in favor of Peni Nitz, by terms of the divorce decree, constitute a property settlement between the parties.” Obligations which are not in the nature of alimony but are part of a property settlement are dischargeable. See Caldwell v. Armstrong, 342 F.2d 485, 488 n. 5 (10th Cir.). The findings of the bankruptcy judge are not to be set aside unless clearly erroneous. Rule 752(a), Bankruptcy Rules of Procedure. It is apparent that the bankruptcy judge based significant findings on evidence presented at the trial before him which was not made a part of the appellate record before the district judge, and is not before us. Upon examination of the record and relevant Utah law, we conclude that the district court had no adequate basis to reject the bankruptcy judge’s findings and should have accepted them. Rachback v. Cogswell, 547 F.2d 502, 504 (10th Cir.); see United States v. Bob Lawrence Realty, 474 F.2d 115, 126 (5th Cir.), cert. denied, 414 U.S. 826, 94 S.Ct. 131, 38 L.Ed.2d 59. Accordingly, the judgment of the district court is reversed and the cause is remanded for reinstatement of the order of the bankruptcy judge. . These financial obligations were not classified (e. g. alimony, child support, or property settlement). The $100 per month alimony and the $75 per month per child child support were specifically labeled as such. . Appellee Peni Nitz relies on the face of the decree and stipulation as showing that the obligations were in the nature of alimony and support. Jones v. Tyson, 518 F.2d 678, 681 (9th Cir.). . Section 30-3-5 provides as follows: 30-3-5. Disposition of property — Maintenance of parties and children — Court to have continuing jurisdiction — Custody and visitation. — When a decree of divorce is made, the court may make such orders in relation to the children, property and parties, and the maintenance of the parties and children, as may be equitable. The court shall have continuing jurisdiction to make such subsequent changes or new orders with respect to the support and maintenance of the parties, the custody of the children and their support and maintenance, or the distribution of the property as shall be reasonable and necessary. Visitation rights of parents, grandparents and other relatives shall take into consideration the welfare of the child. . On appeal to this court the question is whether the findings of the bankruptcy judge, and not those of the district court, were clearly erroneous. Potucek v. Cordeleria Lourdes, 310 F.2d 527, 530 (10th Cir.), cert. denied, 372 U.S. 930, 83 S.Ct. 875, 9 L.Ed.2d 734. . In this connection, we note that the docket sheet in our docketing statement shows that both Peni and Darrell Nitz testified at the trial before the bankruptcy judge. Moreover, there are several items in the bankruptcy judge’s findings which are not covered by the divorce decree and stipulation, or other evidence in the appellate record — e. g., Peni Nitz’ approximate 1974 gross income of $9,066; Darrell Nitz’ 1974 approximate gross income of $9,500 from his construction employment and $900 from his service in the reserves; and the figures on the obligations which Darrell Nitz was ordered to assume and discharge. (See R. II, 7-8, 20-22). . We agree that the appellant Peni Nitz may argue from the decree and stipulation she brought up that the bankruptcy judge erred as a matter of law. See Jones v. Tyson, supra, 518 F.2d 678, 681. However, where State law calls for an assessment of the circumstances and where these circumstances are described in testimony before the bankruptcy judge, but not included in the appellate record for the district court, that court did not have an adequate basis for rejecting the findings of the bankruptcy judge as clearly erroneous. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:

songer_usc2

28

What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 26. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. SPENCER PRESS, INC., Plaintiff-Appellant, v. Donald ALEXANDER, etc., Defendant-Appellee. No. 73-1399. United States Court of Appeals, First Circuit. Argued Jan. 10, 1974. Decided Feb. 5, 1974. Robert B. Smith, Boston, Mass., with whom Galvin, Smith & Nordlinger, Boston, Mass., were on brief, for plaintiff-appellant. Daniel F. Ross, Atty., Tax Div., Dept. of Justice, with whom Scott P. Cramp-ton, Asst. Atty. Gen., James N. Gabriel, U. S. Atty., William Brown, Asst. U. S. Atty., Meyer Rothwacks, and Crombie J. D. Garrett, Attys., Tax Div., Dept. of Justice, were on brief, for defendant-appellee. Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges. LEVIN H. CAMPBELL, Circuit Judge. Appellant Spencer Press, Inc. (Spencer) brought an action against the Commissioner of Internal Revenue, seeking a preliminary injunction to prohibit, the Commissioner from collecting an “addition to tax” provided by the Internal Revenue Code of 1954, 26 U.S.C. § 6651, for late filing of an income tax return. Spencer requested the district court to .determine that, on the merits, no addition to tax was owed; alternatively it requested the court to order the Commissioner to issue a notice of deficiency (90 day notice) so that Spencer would have an opportunity to present the matter to the Tax Court prior to collection of the tax. 26 U.S.C. §§ 6212, 6213. The district court, on December 7, 1973, dismissed the complaint “with leave to file a complaint with proper jurisdictional allegation, within 30 days.” An amended complaint was filed on December 10, 1973, and was dismissed without hearing by the district court on December 11 “in view of the fact that this Court after a hearing on December 7, 1973 denied an application for a preliminary injunction based on the same allegations of fact . . . ” Spencer immediately appealed and requested an injunction pending appeal. Because the Internal Revenue Service proposed to levy on Spencer’s property on December 21, we issued an injunction pending appeal and restrained the collection of the tax until the appeal had been determined. The case was advanced on the docket and oral argument heard on January 10, 1974. The appeal like the original petition actually raises two issues or groups of issues. The first pertain to whether or not under existing statutes plaintiff is entitled to a pre-levy judicial determination of its liability for the additional tax. We conclude, as did apparently the district court, that he is not. The second pertain to whether, under expanded concepts of due process, see Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), a statutory scheme which authorizes or directs seizure of plaintiff’s property without affording any opportunity for a prior hearing is constitutional. As to this issue, neither a single-judge district court nor ourselves have jurisdiction. 28 U.S.C. § 2282. We accordingly affirm the order of the district court insofar as. it was based upon its interpretation of the statutes of the United States, cf. Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), but remand to the district court with instructions to request the convening of a three-judge district court should the plaintiff within ten days file an amended complaint requesting such a court and framing appropriate constitutional issues. According to Spencer’s complaint its difficulties began when, in 1963, it hired a former officer of the Internal Revenue Service to act as its tax accountant, and turned over to him the task of preparing and filing tax returns. Although everything was apparently being handled in due course, Spencer says it was rudely surprised when the Internal Revenue Service informed it that no returns had been filed for the tax years 1967 through 1970. Spencer asserts that it promptly .hired a new accountant, reconstructed its records, and filed returns for those years, paying in full all of the tax and interest due. The IRS is apparently satisfied that the taxes have been paid in full. The IRS has claimed the statutory penalty for late filing of returns. Spencer resisted the claimed “addition to tax”, believing that case law supported its position that a taxpayer acting in good faith and with reasonable care is not liable for an addition to tax when defrauded by its accountant. See, e. g., Fisk v. CIR, 203 F.2d 358 (6th Cir. 1953); Giesen v. United States, 369 F.Supp. 33 (W.D.Wis.1973). Spencer wrote the IRS to request a waiver of the addition to tax, but the Service announced its intention to levy on Spencer’s property unless Spencer paid the tax allegedly due. Spencer then filed the instant suit, requesting that the Commissioner be enjoined from collecting the tax until Spencer has had an opportunity for hearing on its claims that it should be excused. The complaint further contends, perhaps anticipating the Commissioner’s defense, that any actions taken to collect the tax without such a hearing would be in violation of due process. See Fuentes v. Shevin, supra. The Commissioner responded by drawing attention to 26 U.S.C. § 7421, which precludes district courts from enjoining the collection of a “tax”. He then argued that, although there is an exception to § 7421 for cases in which the IRS was required to, but did not, issue a 90 day notice, no such notice was required. The Commissioner relied upon § 6659, which provides that additions to tax such as the one in this case are not the “deficiencies” for which a 90 day notice is required. We agree with the Commissioner’s interpretation. Appellant’s reliance upon cases decided prior to the change in § 6659 effected in 1960 by P.L. 86-470, 74 Stat. 132, is entirely misplaced. What is left therefore is the question of the constitutionality of §§ 6659, 6213, 6212, and 7421 to the extent that they, together or singly, operate to deprive a taxpayer of an opportunity to contest, prior to payment, a penalty assertedly due to the government. However, 28 U.S.C. § 2282 provides that an injunction “restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution . . . shall not be granted . unless the application therefor is heard and determined by a district court of three judges . . .” We do not fault the district court for not initially recognizing that the complaint raised issues requiring three-judge resolution. Appellant did not ask for such a court, and while it raised in general terms its Fuentes due process claim, it did not apparently recognize that the government was bound by law to act as it has. It is not up to the courts to analyze a plaintiff’s case and guide him into the correct courtroom. Cf. Aaron v. Cooper, 261 F.2d 97, 105 (8th Cir. 1958). However, it is now apparent that if appellant is to secure a determination of its constitutional claim, a three-judge court is required. Although Spencer did not seek to enjoin a specific section of the Code, its claim inevitably involved a request that an injunction issue directing an officer of the United States to ignore an Act of Congress on the grounds of its unconstitutionality. Cf. cases cited and discussed in Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 37-50 (1964). In extraordinary circumstances we might have jurisdiction to continue our injunction in effect until organization of the three-judge court, cf. Hicks v. Pleasure House, Inc., 404 U.S. 1, 92 S.Ct. 5, 30 L.Ed.2d 1 (1971). While we are not inclined to do so here, we rely upon the government’s good faith not to take further action to collect the additional tax until sufficient time has elapsed for plaintiff, acting with dispatch, to file an amended complaint, request a three-judge court, and make a timely request to that court for such temporary or preliminary relief as the court may be able or willing to give. The ease is remanded to the same district judge. Since appellant must bear the heaviest responsibility for the time that has been wasted going in the wrong direction, we award costs of this appeal to the government. Judgment vacated. Remanded to the district court with instructions to call for convening of a three-judge court should the plaintiff within ten days file an amended complaint requesting such a court and raising appropriately framed issues, the action otherwise to be dismissed with prejudice. Costs to appellee. . The constitutionality or applicability of § 7421 in another context is now before the Supreme Court. Walters v. “Americans United”, Inc., 155 U.S.App.D.C. 284, 477 F.2d 1169, cert. granted 412 U.S. 927, 93 S.Ct. 2752, 37 L.Ed.2d 154 (1973) ; Bob Jones University v. Connally, 472 F.2d 903 (4th Cir.), cert. granted, 414 U.S. 817, 94 S.Ct. 116, 38 L.Ed.2d 49 (Oct. 9, 1973). Cf. Commonwealth Development Ass’n v. United States, 365 F.Supp. 792 (M.D.Pa.1973). . The legislative history of § 6659 precludes any interpretation of it that would provide a 90 day notice. The section “provides a general rule that the additions to tax for the late filing of income . . . tax returns . . . are to be assessed and collected without the issuance of a 90 day letter.” S.Rep. No.86-1098, 86th Cong., 2d Sess. (1960), 1960 U.S.Code Cong. & Admin.News 2025. . Cases such as Grandquist v. Hackleman, 264 F.2d 9 (9th Cir. 1959) and Strawberry Hill Press, Inc. v. Scanlon, 273 F.2d 306 (2d Cir. 1959), were expressly mentioned in the Senate committee report and apparently were the impetus for the statutory revision. 1960 U.S.Code Cong. & Admin.News 2025-26. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 26. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:

sc_lcdisposition

C

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. UNITED STATES v. EIGHT THOUSAND EIGHT HUNDRED AND FIFTY DOLLARS ($8,850) IN UNITED STATES CURRENCY No. 81-1062. Argued January 18, 1983 Decided May 23, 1983 O’CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and Brennan, White, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 570. Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Jensen, Carter G. Phillips, John Fichter De Pue, and David B. Smith. Victor Sherman argued the cause for claimant Vasquez. With him on the brief was Paul L. Gabbert. Justice O’Connor delivered the opinion of the Court. United States Customs officials seized $8,850 in currency from the claimant as she passed through customs at Los Angeles International Airport. The question in this case is whether the Government’s 18-month delay in filing a civil proceeding for forfeiture of the currency violates the claimant’s right to due process of law. We conclude that the four-factor balancing test of Barker v. Wingo, 407 U. S. 514 (1972), provides the relevant framework for determining whether the delay in filing a forfeiture action was reasonable. Applying the Barker test to the circumstances of this case, we find no unreasonable delay. I A Section 231 of the Bank Secrecy Act of 1970, 84 Stat. 1122, 31 U. S. C. § 1101, requires persons knowingly transporting monetary instruments exceeding $5,000 into the United States to file a report with the Customs Service declaring the amount being transported. Congress has authorized the Government to seize and forfeit any monetary instruments for which a required report was not filed. 31 U. S. C. § 1102(a). Since the Bank Secrecy Act does not specify the procedures to be followed in seizing monetary instruments, the Customs Service generally follows the procedures governing forfeitures for violations of the customs laws, as set forth in 19 U. S. C. § 1602 et seq. (1976 ed. and Supp. V), and the implementing regulations. Under these procedures, the Customs Service notifies any person who appears to have an interest in the seized property of the property’s liability to forfeiture and of the claimant’s right to petition the Secretary of the Treasury for remission or mitigation of the forfeiture. See 19 CFR § 162.31(a) (1982). The regulations require a claimant to file the petition within 60 days. 19 CFR § 171.12(b) (1982). If the claimant does not file a petition, or if the decision on a petition makes legal proceedings appear necessary, the appropriate customs officer must prepare a full report of the seizure for the United States Attorney. 19 U. S. C. § 1603 (1976 ed., Supp. V). Upon receipt of a report, the United States Attorney is required “immediately to inquire into the facts” and, if it appears probable that a forfeiture has been incurred, “forthwith to cause the proper proceedings to be commenced and prosecuted, without delay.” 19 U. S. C. § 1604 (1976 ed., Supp. V). After a case is reported to the United States Attorney for institution of legal proceedings, no administrative action may be taken on any petition for remission or mitigation. 19 CFR § 171.2(a) (1982). The Customs Service processes over 50,000 noncontra-band forfeitures per year. U. S. Customs Service, Customs U. S. A. 36 (1982). In 90% of all seizures, the claimant files an administrative petition for remission or mitigation. Brief for United States 7. The Secretary in turn grants at least partial relief for an estimated 75% of the petitions. Ibid. Typically, this relief terminates the dispute without the filing of a forfeiture action in district court. B On September 10, 1975, claimant Mary Josephine Vasquez and a companion arrived at Los Angeles International Airport after a short visit to Canada. During customs processing, Vasquez declared that she was not carrying more than $5,000 in currency. Nevertheless, a customs inspector discovered and seized $8,850 in United States currency from her. On September 18, 1975, the Customs Service officially informed Vasquez by letter that the seized currency was subject to forfeiture and that she had the right to petition for remission or mitigation. A week later, Vasquez filed a petition for remission or mitigation, asserting that the violation was unintentional because she had mistakenly believed she was required to declare only funds that had been obtained in another country and that she had brought the seized funds with her from the United States. On October 20, 1975, the Customs Office of Investigation assigned Special Agent Pompeo to investigate the petition. Within a few days, Agent Pompeo had interviewed the customs inspectors at the airport who were involved in the seizure. After several unsuccessful attempts to contact him, in mid-November Agent Pompeo contacted Vasquez’ attorney to arrange an interview with Vasquez. The attorney was unable to meet at that time, and he desired to be present during the interview with his client. Around this time, Agent Pompeo also opened a criminal file because she suspected Vasquez of smuggling drugs. From November 1975 until April 1976, Agent Pompeo contacted various state, federal, and Canadian law enforcement officials to determine whether the seized currency was part of a narcotics transaction. In January 1976, Vasquez’ attorney inquired about the status of the petition, and was informed it was still under investigation. On March 2, 1976, Agent Pompeo again contacted the attorney regarding an interview with Vasquez, and an interview took place three days later. On April 26, 1976, the attorney again inquired about the status of the petition and requested that it be acted on as soon as possible. Also in April 1976, Agent Pompeo received final reports from the law enforcement agencies. From these reports, Agent Pompeo concluded there was no evidence to support a charge of narcotics violations. In May 1976, Agent Pompeo submitted a report to the United States Attorney, recommending prosecution of Vasquez for the reporting violation. After Agent Pompeo re-interviewed the customs agents and reported her findings, the United States Attorney submitted the case to the grand jury. On June 15, 1976, a grand jury returned an indictment charging Vasquez with the felony of knowingly and willfully making false statements to a United States Customs officer, in violation of 18 U. S. C. § 1001; and with the misdemeanor of knowingly and willfully transporting $8,850 into the United States without filing a report, in violation of 31 U. S. C. §§ 1058 and 1101. The indictment sought forfeiture of the currency as part of the misdemeanor count. In August 1976, Agent Pompeo recommended that disposition of the remission petition be withheld until the currency was no longer needed as evidence at the criminal trial. On December 24, 1976, Vasquez was convicted on the felony count but acquitted on the misdemeanor charge of willfully failing to file a currency report. Four days after the criminal trial was completed, Vasquez' attorney again inquired whether there would be any further delay in acting on the petition. On March 10,1977, the Customs Service informed Vasquez that the claim of forfeiture had been referred to the United States Attorney. Within two weeks, a complaint seeking forfeiture under 31 U. S. C. § 1102 was filed in Federal District Court. In answer to the complaint, Vasquez admitted the factual allegations but asserted as one of several affirmative defenses that the Government’s “dilatory processing” of her petition for remission or mitigation and “dilatory” commencement of the civil forfeiture action violated her right to due process. The District Court, after a 2-day bench trial held in January 1978, determined that the time which had elapsed was reasonable under the circumstances and therefore declared the currency forfeited under 31 U. S. C. § 1102. A divided panel of the Court of Appeals for the Ninth Circuit reversed. 645 F. 2d 836 (1981). Proceeding from the premise that the Government must bring forfeiture actions promptly because seizures infringe upon property rights, the Court of Appeals concluded that the Government’s 18-month delay in filing its forfeiture action was unjustified. The Court of Appeals specifically held that pending administrative or criminal investigations cannot justify the delay when the necessary elements for a forfeiture were established at the time of the seizure and when the claimant seeks a speedy resolution of the claim. The Court of Appeals likewise rejected the Government’s argument that the claimant should be required to show that the delay prejudiced her ability to present a defense to the forfeiture action. As a remedy for the due process violation, the Court of Appeals ordered dismissal of the Government’s forfeiture action. Since other Circuits have determined that pending criminal or administrative investigations and prejudice to the claimant are relevant considerations in determining whether a delay in instituting forfeiture proceedings violates due process, we granted certiorari to resolve the conflict. 455 U. S. 1015 (1982). We reverse. II The due process issue presented here is a narrow one. Vasquez concedes that the Government could constitutionally seize her property without a prior hearing. Nor does Vasquez challenge the sufficiency of the judicial hearing that was eventually held. She argues only that the Government’s delay in filing a civil forfeiture proceeding violated her due process right to a hearing “‘at a meaningful time,”’ Fuentes v. Shevin, 407 U. S. 67, 80 (1972), quoting Armstrong v. Manzo, 380 U. S. 545, 552 (1965). Unlike the situation where due process requires a prior hearing, there is no obvious bright line dictating when a postseizure hearing must occur. Because our prior cases in this area have wrestled with whether due process requires a preseizure hearing, we have not previously determined when a postseizure delay may become so prolonged that the dispossessed property owner has been deprived of a meaningful hearing at a meaningful time. The Government argues that there is no general due process requirement of prompt postseizure filing of a judicial forfeiture action. Rather, the Government urges that the standard for assessing the timeliness of the suit be the same as that employed for due process challenges to delay in instituting criminal prosecutions. As articulated in United States v. Lovasco, 431 U. S. 783 (1977), such claims can prevail only upon a showing that the Government delayed seeking an indictment in a deliberate attempt to gain an unfair tactical advantage over the defendant or in reckless disregard of its probable prejudicial impact upon the defendant’s ability to defend against the charges. The Government argues that in the absence of unfair conduct of this sort, the timeliness of the suit is controlled only by the applicable statute of limitations. Here, Congress has required the Government to institute forfeiture proceedings within five years. 19 U. S. C. §1621 (1976 ed., Supp. V). We reject the Government’s suggestion that Lovasco provides the appropriate test for determining whether the delay violates the due process command. Lovasco recognized that the interests of the suspect and society are better served if, absent bad faith or extreme prejudice to the defendant, the prosecutor is allowed sufficient time to weigh and sift evidence to ensure that an indictment is well founded. While the value of allowing the Government time to pursue its investigation applies to the civil forfeiture situation as well as the criminal proceeding, a major distinction exists. A suspect who has not been indicted retains his liberty; a claimant whose property has been seized, however, has been entirely deprived of the use of the property. A more apt analogy is to a defendant’s right to a speedy trial once an indictment or other formal process has issued. In that situation, the defendant no longer retains his complete liberty. Even if he is allowed to post bail, his liberty is subject to the conditions required by his bail agreement. In Barker v. Wingo, 407 U. S. 514 (1972), we developed a test to determine when Government delay has abridged the right to a speedy trial. The Barker test involves a weighing of four factors: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Id., at 530. Of course, Barker dealt with the Sixth Amendment right to a speedy trial rather than the Fifth Amendment right against deprivation of property without due process of law. Nevertheless, the Fifth Amendment claim here — which challenges only the length of time between the seizure and the initiation of the forfeiture trial — mirrors the concern of undue delay encompassed in the right to a speedy trial. The Barker balancing inquiry provides an appropriate framework for determining whether the delay here violated the due process right to be heard at a meaningful time. We have often repeated the seminal statement from Morrissey v. Brewer, 408 U. S. 471, 481 (1972), that “due process is flexible and calls for such procedural protections as the particular situation demands.” E. g., Schweiker v. McClure, 456 U. S. 188, 200 (1982); Memphis Light, Gas & Water Division v. Craft, 436 U. S. 1, 14-15, n. 15 (1978). The flexible approach of Barker, which “necessarily compels courts to approach speedy trial cases on an ad hoc basis,” 407 U. S., at 530, is thus an appropriate inquiry for determining whether the flexible requirements of due process have been met. As we stressed in Barker, none of these factors is a necessary or sufficient condition for finding unreasonable delay. Rather, these elements are guides in balancing the interests of the claimant and the Government to assess whether the basic due process requirement of fairness has been satisfied in a particular case. III In applying the Barker balancing test to this situation, the overarching factor is the length of the delay. As we said in Barker, the length of the delay “is to some extent a triggering mechanism.” Ibid. Little can be said on when a delay becomes presumptively improper, for the determination necessarily depends on the facts of the particular case. Our inquiry is the constitutional one of due process; we are not establishing a statute of limitations. Obviously, short delays — of perhaps a month or so — need less justification than longer delays. We regard the delay here — some 18 months— as quite significant. Being deprived of this substantial sum of money for a year and a half is undoubtedly a significant burden. Closely related to the length of the delay is the reason the Government assigns to justify the delay. Id., at 531. The Government must be allowed some time to decide whether to institute forfeiture proceedings. The customs official’s decision to seize property is of necessity a hasty one. Both the Government and the claimant have an interest in a rule that allows the Government some time to investigate the situation in order to determine whether the facts entitle the Government to forfeiture so that, if not, the Government may return the money without formal proceedings. Cf. Lovasco, supra, at 791. Normally, investigating officials can make such a determination fairly quickly, so that this reason alone could only rarely justify a lengthy delay. An important justification for delaying the initiation of forfeiture proceedings is to see whether the Secretary’s decision on the petition for remission will obviate the need for judicial proceedings. This delay can favor both the claimant and the Government. Cf. Barker, supra, at 521; Lovasco, supra, at 794-795. In many cases, the Government’s entitlement to the property is clear, and the claimant’s only prospect for reacquiring the property is that the Secretary will favorably exercise his discretion and allow remission or mitigation. If the Government were forced to initiate judicial proceedings without regard to administrative proceedings, the claimant would lose this benefit. Further, administrative proceedings are less formal and expensive than judicial forfeiture proceedings. Given the great percentage of successful petitions, allowing the Government to wait for action on administrative petitions eliminates unnecessary and burdensome court proceedings. Finally, a system whereby the judicial proceeding occurs after administrative action spares litigants and the Government from the burden of simultaneously participating in two forums. The Government takes the extreme position, however, that a pending administrative petition should completely toll the requirement of filing a judicial proceeding. Nothing in the statutory scheme or in our cases supports this argument. A claimant need not waive his right to a prompt judicial hearing simply because he seeks the additional remedy of an administrative petition for mitigation. Unreasonable delay in processing the administrative petition cannot justify prolonged seizure of his property without a judicial hearing. Rather, the pendency of an administrative petition is simply a weighty factor in the flexible balancing inquiry. Pending criminal proceedings present similar justifications for delay in instituting civil forfeiture proceedings. A prior or contemporaneous civil proceeding could substantially hamper the criminal proceeding, which — as here — may often include forfeiture as part of the sentence. A prior civil suit might serve to estop later criminal proceedings and may provide improper opportunities for the claimant to discover the details of a contemplated or pending criminal prosecution. Compare Federal Rule of Civil Procedure 26(b) with Federal Rule of Criminal Procedure 16. In some circumstances, a civil forfeiture proceeding would prejudice the claimant’s ability to raise an inconsistent defense in a contemporaneous criminal proceeding. See, e. g., United States v. U. S. Currency, 626 F. 2d 11 (CA6 1980). Again, however, the pendency of criminal proceedings is only an element to be considered in determining whether delay is unreasonable. Although federal criminal proceedings are generally fairly rapid since the advent of the Speedy Trial Act of 1974, 18 U. S. C. § 3161 et seq. (1976 ed. and Supp. V), the pendency of a trial does not automatically toll the time for instituting a forfeiture proceeding. In this case the Government relies on both a pending petition for mitigation or remission and a pending criminal proceeding to justify the delay in filing civil forfeiture proceedings. During the initial seven months after the seizure the Customs Service was determining whether to grant the petition. This investigation required responses to inquiries to state, federal, and Canadian law enforcement officers. Such an investigation inherently is time consuming, and there is no indication that it was not pursued with diligence. The Customs Service then referred the matter to the United States Attorney, who obtained criminal indictments within two months. Importantly, one count of the indictment sought forfeiture as part of the sentence. If the Government had prevailed, a civil forfeiture would have been rendered unnecessary. There is no evidence in the record that the Government was responsible for the slow pace of the criminal proceedings, which reached a verdict five months later. After the criminal trial ended, the Secretary of the Treasury made a final decision within three months to deny the petition, and the United States Attorney promptly filed a civil forfeiture proceeding. We are impressed by the assessment made by the District Court that the Goverment had acted with all due speed. Indeed, in an oral colloquy during trial the District Judge commented: “I have been anxious to see in this case whether there has been a lot of dilitory [sic] conduct that the government has really not done what it should do in order to push this thing with all reasonable speed, and, frankly, I don’t see any point in which the government has been lax. “If I had found such, and I found it an unreasonable length of time, I would have been happy to so hold .... “But, in view of the evidence here, I just cannot see any way in which this Court can say that the government has not pursued their claim in all reasonable diligence.” App. 77. In sum, the Government’s diligent pursuit of pending administrative and criminal proceedings indicates strongly that the reasons for its delay in filing a civil forfeiture proceeding were substantial. The third element to be considered in the due process balance is the claimant’s assertion of the right to a judicial hearing. A claimant is able to trigger rapid filing of a forfeiture action if he desires it. First, the claimant can file an equitable action seeking an order compelling the filing of the forfeiture action or return of the seized property. See Slocum, v. Mayberry, 2 Wheat. 1, 10 (1817) (Marshall, C. J.). Less formally, the claimant could simply request that the Customs Service refer the matter to the United States Attorney. If the claimant believes the initial seizure was improper, he could file a motion under Federal Rule of Criminal Procedure 41(e) for a return of the seized property. Yasquez did none of these things and only occasionally inquired about the result of the petition for mitigation or remission and asked that the Secretary reach a decision promptly. The failure to use these remedies can be taken as some indication that Yasquez did not desire an early judicial hearing. The final element is whether the claimant has been prejudiced by the delay. The primary inquiry here is whether the delay has hampered the claimant in presenting a defense on the merits, through, for example, the loss of witnesses or other important evidence. Such prejudice could be a weighty factor indicating that the delay was unreasonable. Here, Vasquez has never alleged or shown that the delay affected her ability to defend against the impropriety of the forfeiture on the merits. On the contrary, Vasquez conceded that the elements necessary for a forfeiture under § 1102(a) were present in her case. IV In this case, the balance of factors indicates that the Government’s delay in instituting civil forfeiture proceedings was reasonable. Although the 18-month delay was a substantial period of time, it was justified by the Government’s diligent efforts in processing the petition for mitigation or remission and in pursuing related criminal proceedings. Vasquez never indicated that she desired early commencement of a civil forfeiture proceeding, and she has not asserted or shown that the delay prejudiced her ability to defend against the forfeiture. Therefore, the claimant was not denied due process of law. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. In addition to the general remission provisions of Title IV, Title II of the Bank Secrecy Act contains its own remission provision, 31 U. S. C. § 1104: “The Secretary may in his discretion remit any forfeiture or penalty under this subchapter in whole or in part upon such terms and conditions as he deems reasonable and just.” At the time of the seizure in this case, a customs officer could institute nonjudicial, summary forfeiture proceedings if the value of the seized merchandise was not more than $2,500. See 19 U. S. C. §§ 1607-1609. Congress has since raised this limit to $10,000. 19 U. S. C. § 1607 (1976 ed., Supp. V). Even for a seizure of property appraised at less than $10,000, the claimant has a right to a judicial determination upon posting a $250 bond to cover costs. 19 U. S. C. § 1608. At the time of the seizure of the currency from Vasquez, 19 U. S. C. § 1603 contained no requirement of a prompt report of a seizure by the Customs Service to the United States Attorney for purposes of instituting forfeiture proceedings. As amended in 1978, § 1603 now requires the appropriate customs officer “to report promptly” to the United States Attorney whenever legal proceedings “in connection with such seizure or discovery are required.” 19 U. S. C. § 1603 (1976 ed., Supp. V). On September 11, 1975, the day after the seizure, Vasquez’ counsel had written an informal letter to the District Director of Customs, explaining why she had not declared the money. This inquiry was relevant to the reporting violation. A currency reporting violation is normally a misdemeanor, but a reporting violation committed in furtherance of any other federal offense is a felony. Compare 31 U. S. C. § 1058 with 31 U. S. C. § 1059. The conviction on the felony count was subsequently reversed because court files were left in the jury room during deliberations. United States v. Vasquez, 597 F. 2d 192 (CA9 1979). On March 28, 1977, the Customs Service officially notified Vasquez that her petition had been denied. Because we find no violation of due process, we do not decide whether dismissal of the forfeiture action with prejudice would be an appropriate remedy for undue delay. E. g., White v. Acree, 594 F. 2d 1385 (CA10 1979). E. g., United States v. Thirty-Six Thousand One Hundred & Twenty-Five Dollars in U. S. Currency, 642 F. 2d 1211 (CA5), cert. denied, 454 U. S. 835 (1981) (aff’g 510 F. Supp. 303 (ED La. 1980)). E. g., United States v. Various Pieces of Semiconductor Manufacturing Equipment, 649 F. 2d 606 (CA8 1981); United States v. One 1976 Mercedes 450 SLC, 667 F. 2d 1171 (CA5 1982). The general rule, of course, is that absent an “extraordinary situation” a party cannot invoke the power of the state to seize a person’s property without a prior judicial determination that the seizure is justified. Boddie v. Connecticut, 401 U. S. 371, 378-379 (1971). See also North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 (1975); Fuentes v. Shevin, 407 U. S. 67 (1972); Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); cf. Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974). But we have previously held that such an extraordinary situation exists when the government seizes items subject to forfeiture. In Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 (1974), the Court upheld a Puerto Rico statute modeled after a federal forfeiture statute, 21 U. S. C. § 881(a), which allowed Puerto Rican authorities to seize, without prior notice or hearing, a yacht suspected of importing marihuana. Pearson Yacht clearly indicates that due process does not require federal customs officials to conduct a hearing before seizing items subject to forfeiture. Such a requirement would make customs processing entirely unworkable. The government interests found decisive in Pearson Yacht are equally present in this situation: the seizure serves important governmental purposes; a pre-seizure notice might frustrate the statutory purpose; and the seizure was made by government officials rather than self-motivated private parties. In United States v. Thirty-seven Photographs, 402 U. S. 363 (1971), we construed a statute allowing customs officials to seize obscene material as requiring a postseizure filing within 14 days and completion of the hearing in an additional 60 days. That case interpreted the statute so as to avoid possible First Amendment problems of prior restraint. The case did not involve, and thus we had no occasion to address, the time restraints imposed by the Due Process Clause. Even if we'were inclined to interpret the statutes here in such a way as to avoid any due process question, it would be impossible to read into the statutory scheme, as we did in Thirty-seven Photographs, a short statute of limitations, since 19 U. S. C. § 1621 (1976 ed., Supp. V) expressly allows the Government to bring a civil forfeiture proceeding within five years. The deprivation in Barker — loss of liberty — may well be more grievous than the deprivation of one’s use of property at issue here. Thus, the balance of the interests, which depends so heavily on the context of the particular situation, may differ from a situation involving the right to a speedy trial. By regulation, the Secretary is not allowed to process any petition for remission or mitigation while a civil forfeiture proceeding is pending. 19 CFR § 171.2(a) (1982). Under the 1978 revisions to 19 CFR § 162.31(a), the Customs Service is now required to warn claimants that unless they agree to defer judicial forfeiture proceedings until completion of the administrative process, the case will be referred promptly to the United States Attorney for institution of judicial proceedings, or summary forfeiture proceedings will be begun. Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:

songer_r_fed

4

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. L.O. WARD, Appellant, v. William G. COLEMAN, Jr., Individually, and as Secretary of Transportation of the United States of America, Russell E. Train, Individually, and as Administrator of the Environmental Protection Agency of the United States of America, and Admiral Owen W. Silar, Individually, and as Commandant United States Coast Guard, United States of America, Appellees. L.O. WARD d/b/a L.O. Ward Oil and Gas Operations, Appellant, v. UNITED STATES of America, Appellee. No. 77-1952. United States Court of Appeals, Tenth Circuit. Submitted March 14, 1979. Decided May 10, 1979. Stephen Jones, Enid, Okl. (David Butler, Enid, Okl., on the brief), for appellant. Michael A. McCord, Dept, of Justice, Washington, D.C. (Sanford Sagalkin, Acting Asst. Atty. Gen., Washington, D.C., Larry D. Patton, U.S. Atty., Richard F. Campbell, III, Asst. U.S. Atty., Oklahoma City, Okl., Carl Strass, Dept, of Justice, Washington, D.C., on the brief), for appellee. Kea Bardeen, Denver, Colo. (James G. Watt, Denver, Colo., on the brief), as amicus curiae for Mountain States Legal Foundation, Independent Petroleum Ass’n of the Mountain States, and Rocky Mountain Oil and Gas Ass’n, Denver, Colo. Harold B. Scoggins, Jr., Washington, D.C., on the brief for amici curiae Independent Petroleum Ass’n of America. W. Bland Williamson and Terry R. Doverspike, Tulsa, Okl., on the brief for amici curiae Oklahoma Independent Petroleum Ass’n. Fred A. Gipson, Seminole, Okl., Richard S. Roberts, Wewoka, Okl., and Richard Bohanon, Oklahoma City, Okl., on the brief for amici curiae Energy Consumers and Producers Assn. Before HOLLOWAY, BARRETT and McKAY, Circuit Judges. BARRETT, Circuit Judge. L.O. Ward (Ward) appeals from a judgment in an action seeking recovery of civil penalties assessed against him by the United States Coast Guard (Coast Guard) pursuant to the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq. (FWPCA). Ward is the owner and operator of L.O. Ward Oil and Gas Operations — a sole proprietorship. On March 23,1975, oil overflowed from a drilling site located in Garfield County, Oklahoma, into Boggie Creek, which is a distant tributary of the Arkansas River. After discovering the spill, Ward immediately began clean-up operations in the area. Ward then submitted a report of the spill to the Environmental Protection Agency. The EPA forwarded the report to the Coast Guard requesting that an assessment of civil penalties be made against Ward in accordance with 33 U.S.C. § 1321(b)(6). On December 19, 1975, following notice and opportunity to be heard, the Coast Guard assessed a $500.00 penalty against Ward for discharging oil into navigable waters in violation of 33 U.S.C. § 1321(b)(3). Ward refused to pay the assessed penalty. He appealed the administrative ruling, contending that the enforcement scheme of § 1321 violated his Fifth Amendment privilege against self-incrimination. The administrative appeal was denied. On April 13, 1976, Ward filed suit in the District Court to enjoin enforcement of the administratively assessed penalty. At the same time, Ward moved to convene a three-judge court pursuant to 28 U.S.C. § 2282 (repealed August 12, 1976). On June 4, 1976, the United States filed a separate action in District Court to collect the unpaid penalty and moved to consolidate the two cases for trial. The District Court denied Ward’s motion to convene a three-judge court and ordered the cases consolidated. Ward subsequently moved for summary judgment in both cases contending that his compulsory report under § 1321(b)(5) resulted in the automatic imposition of punitive sanctions under § 1321(b)(6) and therefore violated his privilege against self-incrimination. In a memorandum opinion and order dated December 22, 1976, the District Court denied the motion for summary judgment in its entirety. Ward v. Coleman, 423 F.Supp. 1352 (W.D. Okl. 1976). The case was thereafter tried to a jury, which resulted in a verdict in favor of the Government and the assessment of a penalty against Ward in the reduced amount of $250. On appeal, Ward contends that: (1) the trial court erred in refusing to convene a three-judge district court, and (2) the FWPCA’s enforcement scheme violates the self-incrimination clause of the Fifth Amendment to the United States Constitution. I. Before turning to Ward’s challenge based upon the self-incrimination clause of the Fifth Amendment, we must determine whether the trial court erred in refusing to convene a three-judge district court. 28 U.S.C. § 2282 requires that a three-judge court be convened in any action where a preliminary or permanent injunction is sought to restrain “the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States . . . .” The purpose of § 2282 is “to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme ... by the issuance of a broad injunction order.” Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154, 83 S.Ct. 554, 560, 9 L.Ed.2d 644 (1963). If § 2282 applies, we must vacate the judgment and remand for consideration by a three-judge panel. See: Federal Housing Administration v. The Darlington, Inc., 352 U.S. 977, 77 S.Ct. 381, 1 L.Ed.2d 363 (1957). It is axiomatic that before § 2282 comes into play, an injunction restraining the enforcement or operation of an Act of Congress must be sought. Flemming v. Nestor, 363 U.S. 603, 607, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). A three-judge district court need not be convened where the constitutionality of an Act of Congress is merely “drawn in question.” Garment Workers v. Donnelly Company, 304 U.S. 243, 58 S.Ct. 875, 82 L.Ed. 1316 (1938). In the instant case, a judgment for Ward in the district court would not have restrained the enforcement or operation of the FWPCA. The self-reporting aspect of the Act would not have been impaired. Likewise, civil penalties could still have been assessed provided the Government could prove its case based on evidence derived from a source wholly independent of the compelled disclosure. Cf. Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In Garment Workers v. Donnelly Co., supra, the Court observed: “[The predecessor of § 2282] does not provide for a case where the validity of an act of Congress is merely drawn in question, albeit that question be decided, but only for a case where there is an application for an interlocutory or permanent injunction to restrain the enforcement of an Act of Congress. Had Congress intended the provision . , for three judges and direct appeal, to apply whenever a question of the validity of an act of Congress became involved, Congress would naturally have used the familiar phrase ‘drawn in question’ ” . . 304 U.S. at 250, 58 S.Ct. at 879. See also: Flemming v. Nestor, supra, 363 U.S. at 607, 80 S.Ct. 1367. We hold that the trial court did not err in refusing to convene a three-judge district court. II. As his primary ground for reversal, Ward contends that the self-reporting requirements of § 1321(b)(5) violate the self-incrimination clause of the Fifth Amendment when a report filed under that section is subsequently used to establish liability for purposes of assessing civil penalties pursuant to § 1321(b)(6). It is, of course, fundamental that the Fifth Amendment protects only communications which are testimonial in nature, compelled and incriminating. See: Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). The report mandated by sub-part (b)(5) is testimonial in character.. See: Andreasen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). Moreover, it is clear that Ward was compelled to “notify the appropriate agency of the United States Government of [the oil] discharge” under pain of criminal prosecution. 33 U.S.C. § 1321(b)(5). Such required self-reporting has consistently been held to be compulsory for purposes of the Fifth Amendment. Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965). The basic issue we must here confront is: Whether the civil penalties prescribe in sub-part (b)(6) are, in reality, criminal in nature thereby precluding use of a compelled report made pursuant to sub-part (b)(5) of § 1321. Judicial determinations as to the civil or penal nature of a particular provision generally center around the issue of “whether the legislative aim in providing the sanction was to punish the individual for engaging in the activity involved or to regulate the activity in question.” Telephone News-System, Inc. v. Illinois Bell Telephone Company, 220 F.Supp. 621, 630 (N.D. Ill. 1963), aff’d, 376 U.S. 782, 84 S.Ct. 1134, 12 L.Ed.2d 83 (1964); Kennedy v. Mendoza-Martinez, supra; Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). In undertaking our assessment of the statutory provisions here in question, we must analyze (i) the Congressional intent discernible from the face of the statute, (ii) the enforcement mechanism of the statute, and (iii) the indicators of Congressional intent enumerated by the Supreme Court in Kennedy v. Mendoza-Martinez, supra. Statutory Language The FWPCA was enacted to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). In furtherance of these goals, Congress specifically prohibited the discharge of oil or other hazardous substances into the navigable waters of the United States and created a statutory enforcement scheme to carry out its mandates. See: 33 U.S.C. § 1321. Under the provisions of this enforcement scheme, every owner or operator of a discharging facility is required to immediately notify the Coast Guard of a discharge of oil or other hazardous substance. Should such an owner-operator fail to do so, he may be fined not more than $10,000, imprisoned for not more than one year, or both. 33 U.S.C. § 1321(b)(5). In addition to this self-reporting requirement, owners and operators of discharging facilities are liable for clean-up costs, subject only to the defenses of act of God, act of war, negligence of the United States government, or act or omission of a third party. 33 U.S.C. § 1321(f). In the event that the discharged substance is determined to be “nonremovable,” civil penalties may be assessed based upon toxicity, degradability, and the dispersal characteristics of the substances discharged. 33 U.S.C. § 1321(b)(2)(B). This civil penalty is again subject to the above-enumerated defenses. Also, each owner or operator of a discharging facility is automatically assessed a “civil penalty” in an amount of not more than $5,000 for each offense. 33 ’U.S.C. § 1321(b)(6). The assessment of this penalty is without regard to fault and subject to no defenses. In determining the amount of the penalty, the Coast Guard is directed, by statute, to consider the “appropriateness of such penalty to the size of the business of the owner or operator charged, the effect on the owner or operator’s ability to continue in business, and the gravity of the violation . . . .” 33 U.S.C. § 1321(b)(6). The civil penalties collected pursuant to sub-part (b)(6) and the “liquidated damages provisions” found in sub-part (b)(2)(B) are deposited into a revolving fund maintained by the Government to defray the costs of administration and cleaning up oil spills in situations where the clean-up costs are otherwise not recoverable — where spills are unreported, caused by acts of God, or committed by financially insolvent persons. See : 33 U.S.C. § 1321(k). The fact that the civil penalty assessed pursuant to sub-part (b)(6) forms a part of this “revolving fund” indicates its remedial nature. See: United States v. Tex-Tow, Inc. 589 F.2d 1310 (7th Cir. 1978); United States v. General Motors Corporation, 403 F.Supp. 1151 (D. Conn. 1975). However, the statutory language dealing with the automatic assessment and determination of the amount of the penalty indicates a punitive intent. The penalty is assessed automatically in every case without regard to fault. No defenses are available. Thus, while the remedial purpose of the revolving fund is to defray the costs of administration and cleaning up of oil spills in situations where clean-up costs are otherwise not recoverable, the factors used in determining the amount of the penalty are not, in our view, reasonably related to the purposes of the revolving fund. Rather, the factors are based on a retributive and punitive motivation. The civil penalty cannot be characterized as compensatory. The statute specifically provides for reimbursement of clean-up costs or, in the event the substances determined as “nonremovable,” liquidated damages. 33 U.S.C. §§ 1321(b)(2)(B) and 1321(f). This obligation for clean-up costs does not relieve the owner or operator of the discharging facility from liability for civil penalties under § 1321(b)(6). Thus, in our view, while the statute, on its face, tends to evidence a punitive intent, we do not consider this determination as conclusive for purposes of treating it criminal in nature. We, therefore, turn to a consideration of the remaining factors: the administrative enforcement scheme and the Kennedy v. Mendoza-Martinez indicators of Congressional intent. The Administrative Enforcement Scheme The authority for assessment and collection of civil penalties pursuant to sub-part (b)(6) is vested in the United States Coast Guard. 33 U.S.C. § 1321(b)(6); Executive Order No. 11735, 38 Federal Register 21243 (1973), Reprinted 33 U.S.C.A. § 1321 (Supp. 1977). By virtue of this authority, the Coast Guard issued Commandant Instruction 5922.11A dealing with the assessment of civil penalties under sub-part (b)(6). The Commandant Instruction sets out several criteria which the Coast Guard uses in determining the amount of penalty to be assessed: Consistent with the language of the Federal Water Pollution Control Act, Coast Guard policy requires the assessment of a civil penalty for each discharge of oil in violation of Section 311(b)(3) [1321(b)(3)] . . . . It is Coast Guard policy to assume that the penalty will be at or near the maximum unless a lesser penalty is justified by one of the factors listed in Section 311(b)(6) [1321(b)(6)], A number of considerations may be made in determining the gravity of a violation, such as the degree of culpability associated with the violation, the prior record of the responsible party, and the amount of oil discharged. Substantial and intentional discharges should result in severe penalties, as should cases of gross negligence, and so on. This is not to suggest that other considerations may not combine to determine the gravity of the violation. Two factors should not be considered in fixing the amount of the civil penalty: (1) the responsible party’s removal effort or expense and (2) a decision by Federal and/or state authorities to bring criminal action for the same discharge. Liability for a civil penalty under Section 311(b)(6) [1321(b)(6)] attaches at the time of discharge. It is entirely unrelated to the subsequent removal responsibility for which the discharger must bear the expense, either directly or by reimbursing the Pollution Fund. In no case may a responsible party avoid or reduce a civil penalty by removing the discharged oil . . (Emphasis supplied.) In our view, the administrative enforcement mechanism applied by the Coast Guard clearly indicates that the assessment and determination of the amount of the penalty is based upon punitive considerations. The Coast Guard Commandant Instruction “requires the assessment of a civil penalty for each discharge of oil.” The factors considered in determining the amount of the penalty are further removed from the remedial aspects of the “revolving fund” than are those factors enumerated in the statute. Among other things, the Coast Guard is to consider the degree of culpability, prior record and amount of oil discharged. Intentional discharges and those resulting from gross negligence “should result in severe penalties.” A party may not “avoid or reduce a civil penalty by removing the discharged oil.” This language is lacking in any “remedial” ring! The costs of investigation are not considered in assessing the amount of the penalty. Similarly, the factors involved in determining the amount of the penalty are not in any way related to what damage may have occurred to the environment by reason of the discharge. See: United States v. W.B. Enterprises, Inc., 378 F.Supp. 420, 422-423 (S.D.N.Y.1974). Indicators of Congressional Intent In Kennedy v. Mendoza-Martinez, supra, the Supreme Court enumerated a series of “tests traditionally applied to determine whether an Act of Congress is penal or regulatory in [nature]”: [I] Whether the sanction involves an affirmative disability or restraint, [II] whether it has historically been regarded as a punishment, [III] whether it comes into play only on a finding of scienter, [IV] whether its operation will promote the traditional aims of punishment — retribution and deterrence, [V] whether the behavior to which it applies is already a crime, [VI] whether an alternative purpose to which it may rationally be connected is assignable for it, and [VII] whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in different directions. Absent conclusive evidence of congressional intent as to the penal nature of the statute, these factors must be considered in relation to the statute on its face. (Footnotes omitted.) 372 U.S., at 168-169, 83 S.Ct. at 567-568. [I] “Whether the sanction involves an affirmative disability or restraint.” Generally, imposition of monetary penalties does not involve the type of affirmative disability or restraint which occurs in the revocation of a previously granted governmental privilege. See: Flemming v. Nestor, supra. Nevertheless, the imposition of monetary penalties does “inflict a pocket-book deterrence or restraint on the recipient.” Atlas Roofing Company v. Occupational Safety and Health Review Commission, supra, at 1001. Thus, because a sanction is used equally for both nonpunitive and punitive purposes, it offers little indication as to Congress’ intent in this instance. [II] “[W]hether it [the sanction] has historically been regarded as punishment.” This indicator also gives little indication as to Congress’ intent. Monetary penalties have traditionally been applied to both criminal and civil statutes. [III] “[W]hether the sanction is activated only on a finding of scienter.” The statute, on its face, does not contain an element of scienter. The fine is automatically assessed without regard to fault. Thus, at first blush, this factor seems to weigh heavily in favor of the regulatory nature of the penalty. However, the factors enumerated in the statute and the Commandant Instruction used in determining the amount of the penalty indicate a scienter requirement. They speak of the “gravity of the violation,” “degree of culpability,” and whether the discharge was intentional or resulted from gross negligence. Moreover, the statute dealing with the imposition of criminal penalties for the discharges of oil or hazardous substances similarly does not require scienter. See: 33 U.S.C. § 407 and 411; United States v. White Fuel Corp., 498 F.2d 619 (1st Cir. 1974). Thus, this indicator lends a credence to a finding that the statute is criminal in nature. [IV] “[W]hether the statute promotes the traditional aims of punishment — retribution and deterrence.” In our view, this factor lends considerable weight to a finding that the civil penalty is actually criminal in nature. The statute and the administrative policies adopted pursuant thereto have the effect of retribution. The penalties are based on such factors as the gravity of the violation, the degree of culpability and the prior record of the party. The fact that a party acted in good faith, could not have avoided the discharge and, once it occurred, undertook clean-up measures immediately is to be given no consideration in relation to the “imposition or amount of a civil penalty-” We do not believe that the deterrence factor comes into play in any significant measure. The deterrence aspect of the statute as a whole is not found in sub-part (b)(6), but rather in the compensatory damage aspects of the statute. Thus, we conclude that the retributive aspect of the civil penalty provision weighs heavily in favor of finding the statute penal in nature. [V] “[W]hether the behavior to which it applies is already a crime.” This factor falls clearly in favor of a finding that the statute is criminal in nature. Section 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 407 specifically prohibits the discharge of refuse matter of any kind or description into the navigable waters of the United States. In United States v. White Fuel Corporation, supra, the court considered § 407 and held that a tank farm operator could properly be held criminally liable where oil found in navigable waters came from an accumulation of oil which had gathered under the operator’s property and seeped into the water through indirect percolation. The court characterized § 407 as a “strict liability statute” and held that common law mens rea need not be alleged or proven. The factual situation presented in White Fuel Corporation is almost entirely analogous to the circumstances presented in this case. It is, therefore, clear that the behavior to which the civil penalty applies is already a crime. [VI] “[W]hether an alternative purpose other than punishment may rationally be ascribed to the sanction.” We have heretofore discussed the remedial aspects of the civil penalty as they refer to the Pollution Fund. In addition to these factors, the Government urges that the penalty can be regarded as compensation to the United States for tortious damage to the environment. See: United States v. W.B. Enterprises, Inc., supra. We agree that the penalty could be regarded as such compensation, if the factors involved in determining the amount thereof reasonably related to the extent of damage to the environment. However, as previously noted, the factors are not addressed to this issue. Therefore, we decline to employ the Government’s rationale. [VII] “[W]hether [the sanction] appears excessive in relation to the alternative purpose assigned.” The answer to this question is not easily resolved, because civil penalties are variable in nature. However, we believe that the factors employed in determining the amount of the penalty indicate a punitive nature. Imposition of penalties even in situations where the discharge is accidental, non-negligent and non-intentional, could be excessive. This is especially so, when the operator, in good faith, attempts to clean up, and, in fact, does clean up the discharge on his own initiative. Inasmuch as the amount of the penalty is correlated to the size of the business involved, a large business concern may very well be heavily penalized despite a lack of fault. Any subsequent clean up operations and attempted removal by the operator would not mitigate this penalty. Commandant Instruction 5922.11A, supra. In such a situation, the imposition of a large penalty would be excessive. Thus, we conclude that this indicator leans in favor of the penal nature of the Act. We are reluctant to set aside a statutory enforcement scheme created under an Act of Congress, Flemming v. Nestor, supra. Nevertheless, we must recognize and abide the maxim that the privilege against self-incrimination should be liberally construed. Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). A detailed examination of the language of the statute, the administrative enforcement scheme, and the indicators of Congressional intent, lead us to conclude that the civil penalty found in 33 U.S.C. § 1321(b)(6) is criminal in nature. For all of the reasons above related and discussed, we therefore hold that the compelled notification of discharge required to be filed with the Coast Guard pursuant to § 1321(b)(5) cannot be used in determining either liability for or the amount of civil penalties imposed under § 1321(b)(6). We do not, however, strike down the self-reporting requirements of § 1321(b)(5) or the statute requiring imposition of civil penalties under 1321(b)(6). In our view, it is permissible to assess civil penalties based on a discharge of oil or other hazardous substance under the Act, provided that the evidence used to establish the discharge is derived from a source wholly independent of the compelled disclosure required by § 1321(b)(5). See: Harrison v. United States, supra; Wong Sun v. United States, supra. Reversed and remanded for further proceedings consistent with this opinion in the collection suit, No. 76 — 0546E of the District Court; there being no need for injunctive relief as sought in No. 76-0303E, that cause shall be dismissed on remand. . The Arkansas River is navigable in fact. Therefore, Boggie Creek, as its tributary, is also a navigable water of the United States for purposes of the FWPCA. See: 33 U.S.C.A 1362(7); United States v. Ashland Oil and Transportation Co., 504 F.2d 1317 (6th Cir. 1974). . § 1321(b)(5) of 33 U.S.C. requires any person in charge of an on-shore facility to immediately notify the Coast Guard as soon as he has knowledge of any discharge of oil or other hazardous substance into the navigable waters of the United States. Failure to immediately report such a discharge subjects the offending party to criminal sanctions of not more than $10,000 or imprisonment for not more than one year, or both. . Although § 2282 has since been repealed it remains effective as to pending suits. Act of August 12, 1976, P.L. No. 94-381, 90 Stat. 1119. . See: Atlas Roofing Company, Inc. v. Occupational S. & H. Rev. Com’n, 518 F.2d 990 (5th Cir. 1975), aff’d, 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977). . Commandant Instruction 5922. IIA is reprinted in the Appendix to United States v. LeBeouf Brothers Towing Company, Inc., 377 F.Supp. 558 (E.D. La. 1974), reversed, 537 F.2d 149 (5th Cir. 1976), cert. denied, 430 U.S. 987, 97 S.Ct. 1688, 52 L.Ed.2d 383 (1977). . Prior to 1972, the civil penalty provision in question, then codified at 33 U.S.C. § 1161(b)(5), specifically included the element of acting “knowingly” and provided for a maximum penalty of $10,000. . We were not presented with and we do not decide the question of whether 33 U.S.C. § 1321(b)(6) is criminal in nature for any purpose other than protecting an individual’s right against self-incrimination under the Fifth Amendment £b the United States Constitution. . We wish to emphasize that our holding today does not preclude the use of the notification of discharge filed pursuant to sub-part (b)(5) in a proceeding for assessment and determination of the civil penalties under sub-part (b)(6) where a corporation, rather than an individual, is involved. See: United States v. Allied Towing Corporation, 578 F.2d 978 (4th Cir. 1978); United States v. LeBeouf Brothers Towing Company, Inc., supra. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:

songer_altdisp

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". ALGOMA CENTRAL & HUDSON BAY RY. CO. v. GREAT LAKES TRANSIT CORPORATION et al. No. 77. Oireuit Court of Appeals, Second Circuit. Dec. 14, 1936. See, also, The Edward E. Loomis, 86 F. (2d) 705. Duncan, Leckie, McCreary, Schlitz & Hinslea and Robert G. McCreary, all of Cleveland, Ohio, for appellant. Brown, Ely & Richards, of Buffalo, N. Y. (John B. Richards, Laurence E. Coffey, and David S. Jackson, all of Buffalo, N. Y., of counsel), for appellee. Stanley & Gidley, of Buffalo, N. Y. (Ray M. Stanley, of Buffalo, N. Y., of counsel), for certain claimants. Before L. HAND, SWAN, and CHASE, Circuit Judges. L. HAND, Circuit Judge. This is an appeal from a decree in the admiralty, dismissing a shipowner’s petition to limit its liability, filed under the Fifty-first Admiralty Rule (28 U.S.C.A. following section 723). The petitioner is a Canadian railway company, the owner of the steamer, “W. C. Franz,” which on the night of November 14, 1934, collided with the steamer, “Edward E. Loomis,” of the Great Lakes Transit Company, on Lake Huron, and sank in twenty-five fathoms of water. The railway filed a libel in personam against the Great Lakes company in the Northern District of Ohio, which the Great Lakes Company countered with a petition in the Western District of New York to limit its liability as owner of the “Loomis.” The railwáy appeared in that suit, answered and made claim, as did certain other persons, members of the “Franz’s” crew, who were injured, or whose decedents had been killed. While that suit was pending, the railway filed this petition in the Western District of New York to limit its own liability as owner of the “Franz”; since that vessel was a total loss and there was no pending freight, if it succeeds it will escape all liability; in Canada, on the other hand, it is said to be liable, as in England, at a specified rate per ton. This is the issue here at stake. The judge concluded that the petition would not lie in the Western District of New York, and dismissed it. The railway appealed. The Fifty-fourth Admiralty Rule (28 U.S.C.A. following section 723) enacts that a petition for limitation may be filed where the “ship * * * may be libeled to answer ; * * * or, if the said ship * * * be not libeled, then in * * * any district in which the said owner * * * may be sued; * * * when the said ship * * * has n'ot been libeled * * * and suit has not been commenced against the said owner * * *, or has been commenced in a district other than that in which the said ship * * * may be, the said proceedings may be had in * * * the district in which the said ship * * * may be, and where it may be subject to the control of such court.” Rule 57 of 1872 (13 Wall, xiii, xiv), allowed the suit to be brought when and where the ship had been arrested (“libelled”), or the owner sued; but Judge Benedict decided in The John Bramall, Fed.Cas.No.7,334, 10 Ben. 495, that it would also lie wherever the ship, its wreck, or its strippings were surrendered into court, provided neither ship nor owner had been sued; and this the Supreme Court confirmed in Re Slayton (1881) 105 U.S. 451, 26 L.Ed. 1066. The statute (section 184, title 46 U.S.Code [46 U.S.C.A. § 184]), uses the phrase, “in any court,” and for this reason Rule Fifty-seven was not thought to be exhaustive as it then stood. But it was amended in 1889 (130 U.S. 705), so as to include the case dealt with in Re Slayton, supra, and it seems to us that it must now be regarded as filling out the whole scope of the statute. It was indeed almost inevitable that the owner should be allowed to choose the forum where the ship or her salvage was which he must surrender; at times it might be impossible for him to move it elsewhere, and in any case that would be the place for its sale. On the other hand it would be extremely burdensome and unfair, when there was nothing to surrender, to allow him to choose any court he wished, regardless of the convenience of everybody else concerned. The railway answers that, even though this be the right reading of the rule— which it denies — when the Great Lakes Company filed its petition under the Fifty-first Rule, it “sued” the railway within the meaning of the Fifty-fourth, and that that suit justified a counter petition of the same kind. Conceivably a proceeding under the Fifty-first Rule ' might be turned into a “suit.” Suppose the petitioner were to interpose a counterclaim to a claimant’s claim; that that counterclaim were for a greater amount; and that the petitioner wished to use it, not only as a set-off, but as the basis for an affirmative recovery against the claimant. If this were permissible in the limitation suit, it would pro tanto become an offensive suit. We can assume arguendo, that it would be permissible, because the Great Lakes Company has not filed such a counterclaim. It is true ■ that in its answer to the railway’s claim it has alleged that if both vessels are held at fault, it wishes to bring its loss together with any payments for which it will be liable to others, into hotchpot with the loss of the railway recoverable against itself. It gives notice that it will then ask to make the case one of “average or contribution”; but it is not clear that by this it means that, if its aggregate losses are greater than those of the railway, it will seek to recover half the difference. As matters stand, it is claiming nothing offensively ■ against the railway, and, that possibility aside, the suit is purely defensive; it is merely to establish a concourse to which all must resort who would recover from it. The initiative does indeed always ‘ rest with the owner in such cases, but that cannot conceal the substance of the matter. When there is only one claim the suit, though permissible, (Larsen v. Northland Transportation Co., 292 U.S. 20, 54 S.Ct. 584, 78 L.Ed. 1096), is merely an alternative to a plea in bar to the claimant’s action. The Scotland, 105 U.S. 24, 33, 34, 26 L.Ed. 1001. When there are more claims than one, a concourse is the only way to secure the owner’s immunity, except at the greatest inconvenience and expense, if even these would avail. At no time can the owner recover a dollar by means of it from anybody. It is quite true that a decree may have some of the effects of a decree in an offensive suit; it will be res judicata in our courts, and possibly also in Canada. If so, in the case at bar the Great Lakes Company can use it as an estoppel, if ever it sues the railway in that country. But the fact that matters decided in an action will be conclusively established elsewhere does not make the action offensive; that result always follows wherever the doctrine of res judicata obtains. It would just as little have determined the character of this limitation suit, though the railway could not have extricated itgelf. In fact, however, it could have done so; it could have discontinued the libel in Ohio; it could have withdrawn its claim in the Great Lakes limitation suit. The Titanic, 225 F. 747 (C.C.A.2). This would have freed its hands effectually, and it can scarcely complain that, having pressed its own claim, it must abide the consequences which follow any adjudication. Decree affirmed. Question: Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_respond1_1_4

C

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "agriculture". Your task is to determine what subcategory of business best describes this litigant. INTERNATIONAL PAPER CO. v. MADDOX. No. 14296. United States Court of Appeals Fifth Circuit. April 3, 1953. Rehearing Denied May 6, 1953. H. M. Holder, Shreveport, La., Geo. T. Madison and E. F. Madison, Bastrop, La., John H. Tucker, Jr., Shreveport, La., for appellant. R. H. Lee, Benton, La., for appellee. Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges. HOLMES, Circuit Judge. This is an action by the appellee for temporary and permanent damages resulting to his property and his established fishing business by a continuing nuisance, maintained by the appellant in the operation of its paper mill in Webster Parish, Louisiana. He alleges that the effluent refuse matter from said mill drains into Bodcau Bayou; that this enormous quantity of waste water, aggregating about 12,000 gallons per minute, contains chemicals, ■fibrous matter, and other impurities, which completely destroy all plant and aquatic life in said bayou; and that the water therein, in consequence, -has become devoid of oxygen, highly odorous, and unfit for fishing purposes, private or commercial. The court below awarded damages to the plaintiff, but denied an injunction restraining the defendant from any further operation of the mill. From this judgment the defendant appealed. The appellant’s specifications of error include the defense of a general denial that it has created or is maintaining any nuisance, and the pleas of release, estoppel, prescription, res judicata, excessiveness of damages, and accord and satisfaction. In ruling on the motion for a new trial, the court below said: “A steady fight, inch by inch, is made by the defendant company. It has zealous, persistent, and eminent counsel * * *. In [this] the second case we are doing for the defendant what its representatives have yet failed to do, and that is to pay Mr. Maddox once and for all. The defendant has so worked, by its sedimentation plans and manner of controlled discharge, that there is still fishing in Bodcau, but it is spotty and principally at the dam; importantly, it is distasteful fish to many for eating. Commercial fishing (buffalo) is practically extinct. If the fishing now were permanently and totally destroyed, we should be allowing the plaintiff at least $20,000, and not the sum of $5000. We have done our best. Of course, neither side is satisfied.” This action follows an earlier suit between the same parties, which is reported in Maddox v. International Paper Co., D.C., 47 F.Supp. 829; the same trial judge heard both cases. After the rendition of the judgment in the first case, the plaintiff and defendant therein entered into an agreement under the terms of which the defendant (appellant here) paid the plaintiff (ap-pellee here) the amount of the judgment awarded by the lower court, plus the additional sum of $3000 for “any damages that might thereafter arise up to and including December 31, 1946.” Plaintiff also granted the defendant (appellant herein) “full flow-age rights across any and all property” owned by him, real and personal, “with full acquittance and release of any damages caused thereby up to and including December 31, 1946.” After the expiration of the above period, the appellee on May 19, 19-48, filed the present suit. In it he seeks permanent damages for the total destruction of his fishing camp and fishing business, loss of improvements, loss of value of camp sites, loss of profits for the years 1947 and 1948, and other items. We think the plea of res judicata is not well taken. The pollution and its causes are recurrent or continuing nuisances; and actions for such temporary successive injuries from pollution are independent of one for pollution that is permanent in character. The first and second suits her tween these litigants are based upon separate causes of action, the first being for damages to appellee’s business resulting from pollution within the then prescriptive period, and the instant suit being for permanent damages for its total destruction. There is a difference between a claim for total temporary damages and one for total permanent damages. The lower court so interpreted the appellee’s demands, and the parties themselves recognized the distinction in the compromise settlement and release for three successive years ending December 31, 1946. There is a maxim that one is so to use his own as not to injure another’s property (Sic utere tuo ut alienum non laedas). It must be applied harmoniously with the maxim of De minimis non curat lex, but there is no question of the latter in- this case; and the appellee had the right to presume that the appellant would abate this nuisance at the earliest practicable moment. This presumption was strengthened by the. defendant’s plea that it was engaged in continuous research for the purpose of controlling the waste disposal and reducing the waste content of the water discharged from its mills. During the war years (as claimed) it was unable to get delivery of certain needed equipment, but within the last three years it had secured this equipment and was completing the installation thereof, which greatly improved the situation, adding: “Respondent is continuing to make improvements” (R. 22). The appellee alleged and the court below found that the first knowledge he had that the condition had become permanent was when appellant filed certain instruments by various owners on Bodcau Bayou granting flowage rights. It was stipulated that about 48 such instruments were filed, the first of these dating back to recordation on April 16, 1948. If appellant was still experimenting and spending considerable sums of money tp solve its waste .problems, the appellee could not have been expected to foresee the failure of these attempts. The recordation of these flowage easements constituted his first knowledge of apparent permanency, and this suit was filed May 19, 1948. The trial court did not err in refusing to apply a prescription date that would completely ignore the hopes and plans of all parties concerned for correcting the conditions as soon as materials became available. The doctrine of res judicata in Louisiana is found in Art. 2286 of the LSA-Civil Code of Louisiana, which is as follows: The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality. The Louisiana doctrine is much more restricted than at common law. State ex rel. etc. v. City of New Orleans, 169 La. 365, 125 So. 273. Its scope is defined and limited by statutory declaration. Woodcock v. Baldwin, 110 La. 270, 34 So. 440; Smith v. Little Pine Lumber Co., 150 La. 720, 91 So. 165. It is stricti juris, and any doubt as to the identity of the two claims must be resolved in favor of the plaintiff. Bullis v. Town of Jackson, 203 La. 289, 14 So.2d 1, citing Hope v. Madison, 194 La. 337, 193 So. 666. See also Carter Oil Co. v. Jackson, 194 Okl. 621, 153 P.2d 1013. The record in this case consists of five large volumes. It not only contains the judgment appealed from, but various long forms of requested judgments which the judge failed or refused to sign. After a patient hearing, the trial judge wrote the reasons for his decision in what seems to us to be a very sound opinion. We find no reversible error in anything that he said or did, and the judgment appealed from is affirmed. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544; Shannon v. Shaffer Oil & Ref. Co., 10 Cir., 51 F.2d 878, 78 A.L.R. 851; Iselin v. C. W. Hunter Co., 5 Cir., 173 F.2d 388; International Paper Co. v. Busby, 5 Cir., 182 F.2d 790; Maddox v. Int. Paper Co., D.C., 47 F.Supp. 829; Busby v. International Paper Co., D.C., 86 F.Supp. 603; Busby v. International Paper Co., D.C., 95 F.Supp. 596; Woodcock v. Baldwin, 110 La. 270, 34 So. 440; Smith v. Little Pine Lumber Co., 150 La. 720, 91 So. 165; State ex rel. Puritan Co., v. City of New Orleans, 169 La. 365, 125 So. 273; Bullís v. Town of Jackson, 203 La. 289, 14 So.2d 1; Chamberlain v. Bruce Fur. Co., La.App., 29 So.2d 183; Durmeyer v. Streiffer, 215 La. 585, 41 So.2d 226; Carter Oil Co. v. Jackson, 153 P.2d 1013, 194 Okl. 621; 54 C.J.S., Limitations of Actions, § 169-c, p. 132; Am.Jur., Vol. 15, page 414, Sec. 23; LSA-Civ.Code, Art. 1934; LSA-Civ.Code, Art. 2286. Affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "agriculture". What subcategory of business best describes this litigant? A. single family farm B. commercial farm, agri-business C. farm - other D. unclear Answer:

songer_casetyp1_7-2

C

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". In The Matter of PERSPECTRON, INC., Bankrupt. Robert L. BALZANO, Trustee in Bankruptcy of Perspectron, Inc., Petitioner-Appellant, v. AERO-DYNE CORPORATION OF ILLINOIS, Respondent-Appellee, and United States of America, Reclamation Petitioner-Appellee. No. 17199. United States Court of Appeals, Seventh Circuit. Feb. 12, 1970. Anna R. Lavin, Chicago, 111., for appellant. Thomas A. Foran, U. S. Atty., Richard A. Makarski, Asst. U. S. Atty., for reclamation-petitioner-appellee, John Peter Lulinski, Michael B. Nash, Asst. U. S. Attys., of counsel. William B. Davenport, Robert E. Pfaff, Chicago, 111., for respondent-appellee, Aero-Dyne Corp., Jenner & Block, Chicago, 111., of counsel. Before CASTLE, Chief Judge, and MAJOR and HASTINGS, Senior Circuit Judges. MAJOR, Senior Circuit Judge. The receiver for Perspectron, Inc., a bankrupt (Perspectron or the bankrupt), on July 28, 1966, filed a petition for a turn-over order, subsequently adopted by the bankruptcy trustee. The petition in substance alleged that on or about June 15, 1966, equipment and material of a value of approximately $150,000 was transferred from Perspectron to AeroDyne Corporation of Illinois (AeroDyne) without consideration, for the purpose of delaying and defrauding creditors of the bankrupt. Aero-Dyne by answer denied the allegations of the petition and alleged that it was not subject to the summary jurisdiction of the court; that the United States owned the property in question and that Aero-Dyne held it on behalf of the United States, pursuant to a contract dated June 9, 1965, under which Aero-Dyne was the prime contractor; that the government contract provided that title to the property in question was in the United States; that the contract had been incorporated in AeroDyne’s purchase order forming a subcontract with the bankrupt, and that the latter’s work on the contract as a subcontractor had been terminated by Aero-Dyne upon the bankrupt’s acknowledgment that it could not perform. It was further alleged that upon such termination the property was delivered to Aero-Dyne in order that work on the contract might be completed, and that Aero-Dyne had paid to the bankrupt all money received by it from the United States as progress payments on the government contract. On September 8, 1966, the United States intervened and filed an answer, and on September 12, an amended answer, to the turn-over petition. In both it asserted ownership of the property in question. The amended answer challenged the summary jurisdiction of the court. The referee held that he had summary jurisdiction of both the government and Aero-Dyne and, after a hearing, entered his order on March 27, 1967, by which it was determined that the claim of the trustee to the property involved and removed from the premises of the bankrupt by Aero-Dyne was superior to the claim of title of the United States. Both Aero-Dyne and the United States petitioned for review of the referee’s order. The district court granted such request, considered the . evidence adduced before the referee and, with the acquiescence of all parties, permitted further testimony. On July 12, 1968, the court rendered its memorandum of decision and order, holding that real and substantial claims were advanced by Aero-Dyne and the United States which preclude the exercise of summary jurisdiction. The court concluded: “ * * * the order of the Referee finding that summary jurisdiction existed, entered without the required findings of fact and conclusions of law, and the order of the Referee finding that the Trustee’s title to the property was superior to that of the United States, entered without jurisdiction, must be and hereby are reversed and this summary proceeding must be and is dismissed.” From this order of dismissal the trustee appeals, and presents the issues for decision as: “1. Did not the District Court err, on a Petition for Review, in preempting the Bankruptcy Court entirely for failure to make Findings of Fact, instead of remanding the matter with instructions to make the required findings ? “2. Was Aero-Dyne Corporation (disdaining any right or title in itself) a ‘person aggrieved’ so as to qualify for the right of review under Section 39(c) of the Bankruptcy Act? “3. Did the United States waive any challenge to the Summary Jurisdiction of the Bankruptcy Court? “4. Could title to Perspectron Corporation’s inventory vest in the United States by virtue of the contract between Aero-Dyne and the government?” In our view, the only serious question here is whether the bankruptcy court had summary jurisdiction of Aero-Dyne and the government.. If this issue be decided adversely to the trustee, any other issues are of no consequence. The district court stated in its memorandum : “The parties have agreed that only two questions are presented for review: First, whether the court has summary jurisdiction, and, second, whether the United States has title to -the property in question. Although the questions are somewhat interrelated in that the substantiality of the United States’ claim to title determines the existence of summary jurisdiction, the court would have no occasion to decide the second if summary jurisdiction is lacking.” As noted, the district court reversed the referee’s conclusion that the trustee’s title to the involved property was superior to that of the United States, solely on the basis that the court was without summary jurisdiction. It follows that if the decision of the district court is affirmed, it will be without prejudice to the right of the trustee to seek relief in any appropriate plenary proceeding. The trustee argues that findings of fact were not made by the referee and the court was without authority to reverse, but should have remanded the cause for the purpose of making such findings. General Order 47 in Bankruptcy provides : “Unless otherwise directed in the order of reference the report of a referee or of a special master shall set forth his findings of fact and conclusions of law, and the judge shall accept his findings of fact unless clearly erroneous. The judge after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.” A reading of this order makes it plain that the court is vested with a wide discretion. The trustee on brief, referring to this order, states: “However, it is impossible for a District Court to exercise that power when it cannot understand from the absence of findings how the Referee gave effect to the important questions before him. This is essential to the office of review.” Without expressly so stating, it seems to be implicit in this argument that the court was without jurisdiction to take any action other than to remand the case to the referee for the purpose of making findings. We think the contention must be rejected. There can hardly be doubt but that the court had jurisdiction of the parties and the subject matter, and the power to proceed, particularly under the circumstances now to be related. The record reveals that preliminary to the hearing by the district court there was a lengthy colloquy as to the issue for decision and the procedure to be followed, participated in by the court and counsel for all the parties. Mr. Davenport, attorney for Aero-Dyne, suggested that the first issue to be determined was whether the bankruptcy court had summary jurisdiction. The court inquired, “Is there any objection to my taking this over in the light of Mr. Davenport’s statement?” Mr. Simon, general counsel for the trustee, responded, “No. I think your Honor should. We would like to dispose of this case and this would be the most expeditious way to do it.” In the colloquy Mr. Simon further stated, “The reason I said you should hear it is to expedite the proceedings * * Later, in a revealing statement, Mr. Mackey, special counsel for the trustee, expressly conceded that the issue of summary jurisdiction must first be decided. Thereupon, with the acquiescence of counsel for all parties, the district court announced that the sole issue to be tried was whether the referee had summary jurisdiction. The case was tried on this issue and decided adversely to the trustee. Insofar as we can discern from the record, neither the trustee nor any other party at any time suggested that the court was without jurisdiction or power in the matter. This issue apparently is raised here for the first time. The cases cited by the trustee on this point are not controlling. Generally they involve the failure of a lower court to make findings which an appellate court can review. In such eases, the reviewing court is not authorized to hear additional testimony but is restricted to the findings made by the lower court. In contrast, the district court in reviewing a decision of a referee is specifically authorized to hear additional testimony. Moreover, in the instant situation counsel for all parties, including those for the trustee, expressly acquiesced in the procedure followed by the court. In our view, the trustee’s complaint on this score is without merit. Notwithstanding the posture in which the case was presented to the district court, the trustee argues here as it did before the referee, that the United States waived any right which it had to a plenary proceeding, citing O’Dell v. United States, 10 Cir., 326 F.2d 451, 455; Commercial Discount Co. v. Rutledge, 10 Cir., 297 F.2d 370, 373; Inter-State National Bank of Kansas City v. Luther, Trustee, 10 Cir., 221 F.2d 382; Reconstruction Finance Corp. v. Riverview State Bank, 10 Cir., 217 F.2d 455, 459, and James Talcott, Inc. v. Glavin, 3 Cir., 104 F.2d 851, 853. An examination of these cases and others discloses that they are of little aid to the trustee’s contention because of different factual situations. In the instant situation, the United States on September 8, 1966, filed an answer to the receiver’s petition for turn-over which made no objection to the summary jurisdiction of the bankruptcy court. On the same date, however, in open court it objected to summary jurisdiction and asked leave to amend its pleading. The government on brief states that the referee orally gave the United States leave to amend its pleading within five days. In any event, within the five-day period, the United States filed its amended answer in which it objected to the summary jurisdiction. On October 3, 1966, the referee ruled that he had jurisdiction of both the government and Aero-Dyne. Section 2(a) (7) of the Bankruptcy Act (11 U.S.C.A. 11(a) (7) ) provides in part as follows: “ * * * and where in a controversy arising in a proceeding under this title an adverse party does not interpose objection to the summary jurisdiction of the court of bankruptcy, by answer or motion filed before the expiration of the time prescribed by law or rule of court or fixed or extended by order of court for the filing of an answer to the petition, motion or other pleading to which he is adverse, he shall be deemed to have consented to such jurisdiction * * We think the government cannot “be deemed to have consented” to summary jurisdiction. Its amended answer, either with or without the consent of the court, was filed within the time prescribed by Rule 15(a), Federal Rules of Civil Procedure. Moreover, all parties had notice on the day the government’s original answer was filed that it would challenge the summary jurisdiction of the court. In Gill v. Phillips, 5 Cir., 337 F.2d 258, the court held that the referee had erroneously determined that the party involved had consented to summary jurisdiction, and stated (page 262): “Perhaps it is appropriate to note at the outset that consent to summary jurisdiction is not lightly to be inferred. As this Court has emphasized before, the admittedly desirable end of expeditious administration of bankrupt estates should not be allowed effectively to eliminate the protection afforded litigants by the traditional safeguards of a plenary suit, with its right to trial by jury and cross-examination of witnesses. See, e.g., Fox Jewelry Co. v. Lee, 264 F.2d 720 (5 Cir.1959); Cf. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). Therefore, we approach the issue of consent to summary jurisdiction with a certain degree of circumspection. “We do not view any of Gill’s appearances in the bankruptcy proceedings as evidencing a willingness on his part that the bankruptcy court decide the preference and fraudulent conveyance issues in summary proceedings. Consent should.be inferred only from a clear manifestation by the adverse party that he is submitting a particular issue to the summary jurisdiction of the referee for determination.” The trustee’s contentions that AeroDyne was not a “person aggrieved” under See. 39(c) of the Bankruptcy Act (Title 11 U.S.C.A. See. 67(e)), and that the United States did not have a real and substantial claim to title to the property which authorized them to maintain a petition for review, are based upon an intermingled state of facts which were developed at length by the parties in the court below. Even though we are not called upon to decide the merits of the contentions thus made, some statement of the facts appears to be essential. On June 9, 1964, Aero-Dyne entered into a contract with the United States government for 76 recorder reproducers known as AN/PNH-4. This contract incorporated a progress payments clause in conformity with an Armed Service Procurement Regulation which provided in part as follows: “Progress payments shall be made to the Contractor as work progresses, from time to time upon request, in amounts approved by the Contracting Officer upon the following terms and conditions: “(a) Computation of Amounts. (1) Unless a smaller amount is requested, each progress payment shall be (i) 70 percent of the amount of the Contractor’s total cost incurred under this contract plus (ii) the amount of progress payments to subcontractors as provided in (j) below, all less the sum of previous progress payments. ****** “(d) Title. Immediately, upon the date of this contract, title to all parts; materials; inventories; work in progress; special tooling as defined in the clause of this contract entitled ‘Special Tooling’; nondurable (i.e., noncapital) tools, jigs, dies, fixtures, molds, patterns, taps, gauges, test equipment, and other similar manufacturing aids not included within the definition of special tooling in such ‘Special Tooling’ clause; and drawings and technical data (to the extent delivery thereof to the Government is required by other provisions of this contract); theretofore acquired or produced by the Contractor and allocated or properly chargeable to this contract under sound and generally accepted accounting principles and practices shall forthwith vest in the Government; and title to all like property thereafter acquired or produced by the Contractor and allocated or properly chargeable to this contract as aforesaid shall forthwith vest in the Government upon said acquisition, production or allocation. Notwithstanding that title to property is in the Government through the operation of this clause, the handling and disposition of such property shall be determined by the applicable provisions of this contract such as: the Default clause and paragraph (h) of this clause; Termination for Convenience of the clause; and the Special Tooling clause. ****** “(j) Progress Payments to Subcontractors. (1) The amount mentioned in item (a) (i) to (ii) above shall be the sum of (i) all the progress payments made by the Contractor to his subcontractors and remaining unliquidated, and (ii) unpaid billings for progress payments to subcontractors which have been approved for current payment in the ordinary course of business, when under subcontracts which conform to (2) below. (2) Subcontracts on which progress payments to subcontractors may be included in the base for progress payments pursuant to paragraph (a) of this clause are limited to those subcontracts in which there is expected to be a long ‘lead time,’ approximately six months or more between the beginning of work and the first delivery, containing subcontract progress payment provisions which (i) are substantially similar to and as favorable to the Government as this ‘Progress Payments’ clause, no more favorable to the subcontractor than this clause is to the contractor and on a basis of not more than 70 percent of total costs or 85 percent of direct labor and material costs (except that these percentages may be 75 percent of total costs or 90 percent of direct labor and material costs for those subcontractors which are small business concerns), and (ii) make all rights of the subcontractor with respect to all property to which the Government has title under the subcontract subordinate to the rights of the Government to require delivery of such property to it in the event of default by the Contractor under this contract or in the event of the bankruptcy or insolvency of the subcontractor.” (Emphasis supplied.) On August 31, 1964, Aero-Dyne issued its purchase order No. 3033 to Perspeetron, covering all of the work required to be done under the government contract. Robert Moffat, president of Perspectron, signed an acceptance of the purchase order under date of September 2, 1964, and at numerous times subsequently signed similar orders referred to as the subcontracts between Aero-Dyne and Perspectron. These subcontracts among other things provided: “All other terms and conditions of [the Government Contract], which is attached herewith and expressly made a part hereof, shall be complied with.” During the period beginning May 25, 1965 and ending March 3, 1966, Perspectron by its officers prepared eighteen requests, in the joint names of AeroDyne and Perspectron, for progress payments under the government contract. Perspectron submitted said progress payment applications through AeroDyne to the contracting officer at Fort Meade, Md. The government made progress payments to Aero-Dyne on the government contract, which in turn remitted them in exact amount by its check to Perspectron, with accompanying government voucher setting forth the government contract number and the progress payment number. Perspectron received $152,278.80 in progress payments under the government contract, on requests prepared by Perspectron. Moffat testified on behalf of the government before the referee that in early April 1966, he had a conversation with Harry Reagan, a representative of the National Security Agency, Fort Meade, Md., and liaison man between the agency and any contractor associated with the PNH-4. In that conversation Reagan was assured that Perspectroti’s progress payments were in keeping with what its books reflected. The inventory of parts acquired by Perspectron was charged to the government contract during the period covered by the progress payments' requests. William Hriszko, an official of Perspectron, testified that it was “very definitely a part of the procedure” at Perspectron to have each purchase order relative to a government contract contain on its face the relevant contract number. All parts ordered by Perspectron for the government contract were built to government specifications. Upon receipt of material from" a vendor at Perspectron’s receiving section, the parts were counted, allocated against their respective contract and placed in a hold area preparatory to inspection. They were then moved over to inspection and put in a hold area where, upon successful completion of quality control requirements they were released to production control, and from that point were put in a bonded stock area. Shipments received at Perspectron were packaged in various types of receptacles and properly identified with the part number in question and with the relative contract involved, with its appropriate nomenclature, in the instant situation the PNH-4. In the bonded stock area, all contracts were segregated under a numerical control system, under project numbers, and only that material relevant to each contract was contained in a specific area. Edward J. Babecki, a government representative, was stationed at Perspectron as an inspector from May 1964 to the first week of March 1966. His testimony was similar to that of Hriszko as to the manner in which parts received by Perspectron were segregated so as to be identified with the various government contracts. On May 25, 1966, Aero-Dyne by telegram notified Perspectron that because of its default, it was cancelling the balance of order No. 3033, dated August 31, 1964. The telegram in part stated: “All material components, sub assemblies, work in process covered by progress payments one through 18 inclusive and all government tooling and equipment furnished under contract DA18-119-AMC-0919(X) shall be prepared for immediate shipment and delivery to Aero-Dyne Corp. * * On June 5, 1966, Perspectron by its officers replied by letter to this telegram, in part as follows: “It has been determined by the officers and directors of Perspectron, Inc. that a financial reorganization of said company is required. To do so in the most timely and orderly fashion and with the best interest of the government in mind, it has been agreed that all requirements on subject will be performed by Aero-Dyne Corporation, the prime Contractor. “As a result, the inventory as it now exists, at Perspectron, Inc. will be transferred to Aero-Dyne. Said company in turn will procure the balance of the material required for use in fabrication of the equipments to be furnished under subject contract. It should be emphasized that the technical and administrative personnel employed by Perspectron will be available to Aero-Dyne at all times during the course of the contract. This will undoubtedly alleviate any problem areas which might arise in these specific areas.” Hriszko testified that the parts pertaining to the government contract were removed from the premises of Perspeetron during the period of from about June 7 or 8 to June 11, 1966, and that to his knowledge no parts were removed which had not been identified to the government contract. Moffat testified that the items removed “were already designated” and “set aside.” The government contract was performed by Aero-Dyne, and the required units were eventually shipped to the government. In view of the limited nature of the issues for decision, we deem it unnecessary to pursue further the facts as they pertain to the rights of the parties under the government’s contract with Aero-Dyne or the latter’s subcontract with Perspectron. Neither do we think it necessary to cite or discuss the numerous cases called to our attention which deal with pertinent principles of law. Two of such cases will suffice. In re Process-Manz Press, Inc., 7 Cir., 369 F.2d 513, a recent decision of this court, and Goggin et al. v. Consolidated Liquidating Corp. et. al., 190 F.2d 553 (CA-9). In Process-Manz, this court reversed the district court, which had sustained the referee in holding that he had summary jurisdiction. In doing so we stated (page 516): “The bankruptcy court is without summary jurisdiction to determine a claim without the claimant’s consent where it is necessary to weigh the force of opposing credible evidence on a substantial and controverted issue of controlling fact. In re Kansas City Journal-Post Co., [8 Cir.] 144 F.2d [808] at 815. A claim is substantial if it ‘ “discloses a contested matter of right, involving some fair doubt and reasonable room for controversy,” * * * in matters either of fact or law; and is not to be held merely colorable unless the preliminary inquiry shows it is so unsubstantial and obviously insufficient, either in fact or law, as to be plainly without color of merit, and a mere pretense.’ Harrison v. Chamberlin, 271 U.S. [191] at 195, 46 S.Ct. [467] at 469 [70 L.Ed. 897].” Goggin on its facts and reasoning supports the claims of the United States and Aero-Dyne that they are entitled to have their rights adjudicated in a plenary hearing. In that case a referee found that he had summary jurisdiction to order the turn-over of certain funds held by Consolidated which were alleged to be owed to the bankrupt. The United States Maritime Commission had notified Consolidated prior to the bankruptcy, pursuant to the provisions of the Anti-Kickback Act, to withhold monies claimed to be due the bankrupt. There, as here, the government had intervened. The district court, on review, reversed the referee. In affirming, the court of appeals stated (page 554): “The district court on proceedings to review held that the claim which the United States was making on Consolidated was substantial, not merely colorable, hence both those parties were entitled to have their rights adjudicated in a plenary suit.” The district court in the instant case in its memorandum opinion stated: “Since serious questions of fact and law determine the title question, real and substantial claims are advanced by Aero-Dyne Corporation and the United States which preclude the exercise of summary jurisdiction in this case.” With this conclusion we agree. The order appealed from is Affirmed. . In fact, the trustee, after obtaining leave from the referee, instituted on September 6, 1968 a plenary proceeding against Aero-D.vne and others, seeking damages for alleged wrongful removal of the property which is the subject matter of the instant case. . “The Court: What I was concerned about was whether the issue was before me and the matter of whether or not the bankruptcy court has summary jurisdiction is something I must decide. Isn’t that right? Mr. Mackey: It is, your Honor. The Court: If I decide that the bankruptcy court does not have summary jurisdiction— Mr. Mackey: Have you decided that it does not? No, sir. The Court: I say if I were to decide. Mr. Mackey: Oh, if you were. Excuse me, your Honor. The Court: If I were, then— Mr. Mackey: Then that would end it. The Court: The trustee would be left to his plenary suit, isn’t that right? Mr. Mackey: Yes, it is, your Honor. The Court: To be filed in this court or elsewhere. Mr. Mackey: Correct, your Honor.” 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_civproc1

51

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. MATCO MACHINE AND TOOL COMPANY, Appellee, v. CINCINNATI MILACRON COMPANY, Appellant. No. 82-2294. United States Court of Appeals, Eighth Circuit. Submitted June 16, 1983. Decided May 9, 1984. Armstrong, Teasdale, Kramer & Vaughan, John P. Emde, Wilbur L. Tomlinson, John P. Emde, St. Louis, for appellant. Shepherd, Sandberg & Phoenix, P.C., John C. Shepherd, Kenneth W. Bean, St. Louis, Mo., for appellee Mateo Mach. & Tool Co. Before ROSS and McMILLIAN, Circuit Judges, and HANSON, Senior District Judge. The Honorable William C. Hanson, United States Senior District Judge for the Northern and Southern Districts of Iowa, sitting by designation. McMILLIAN, Circuit Judge. Cincinnati Milacron Co. (Milacron), an Ohio corporation, appeals from a final judgment in the amount of $189,750 entered against it in the District Court for the Eastern District of Missouri. Judgment was entered upon a jury verdict for breach of an express warranty by Milacron incident to the sale of an automated machining center to Mateo Machine and Tool Co. (Mat-eo), a Missouri corporation. Judgment for Milacron in the amount of $69,446.82 was entered on its counterclaim for the balance due on a promissory note executed by Mat-eo for the purchase of the machining center. Ohio law is applicable to this ease pursuant to a choice of law provision in the agreement between the parties. For reversal Milacron argues that the district court erred in instructing the jury by (1) improperly characterizing various instructions in prefatory remarks, and (2) incorrectly instructing the jury on the issues of a warranty condition, a limitation of liability clause, the measure of damages, and consequential damages. For the reasons discussed below, we affirm the judgment of the district court. Mateo is a machine shop, or a “job shop,” which manufactures machine parts for third parties. In April 1977, Milacron presented a written proposal to Mateo for the sale of a numerically controlled Series 15HC-2500 machining center. The 15HC is a sophisticated piece of equipment, providing three axis positioning and contouring capability, used to manufacture machine parts. The proposal warranted that the 15HC would provide unidirectional positioning accuracy of ±.0005" and repeatability accuracy of ±.0003" for each linear axis. These- accuracies were “dependent upon the installation of the ... 15HC ... on a proper foundation.” The proposal stated that “[rjecommended foundation information will be supplied in the form of foundation drawings mailed prior to machine shipment.” The Terms and Conditions Domestic, attached to the proposal, contained a limitation of liability clause which limited Mila-cron’s liability for breach of warranty to repair or replacement of defective products or parts thereof and specifically excluded liability for consequential damages. In May 1977, Mateo accepted Milacron’s proposal, and delivery of the 15HC was scheduled for May 1978. In November 1978, Mateo executed a promissory note and security agreement in favor of Milacron for the purchase price of $238,980, and in December 1978 the 15HC was delivered. There is conflicting evidence as to when Mateo received the foundation drawings from Milacron. In any event, Mateo decided to install the unit on a special steel plate and not on a concrete foundation as recommended in Milacron’s drawings. Representatives from Milacron assisted in the installation of the 15HC on the steel plate. A variance in one of the axes was soon discovered. Mateo informed Milacron of this defect and was told that the problem was due to the lack of a concrete foundation. Mateo then constructed a foundation in conformity with the Milacron drawings and reassembled the machining center on the new foundation in the latter part of March or the early part of April 1979. The variance in the axis, however, persisted despite numerous repair efforts by both Mila-cron and Mateo. It is not disputed that this variance represented a breach of the express warranty regarding accuracy. In May or June 1979, Caterpillar Tractor Co. cancelled a parts contract it had awarded to Mateo because Mateo could not demonstrate at that time that it could deliver the part in sufficient quantity and quality. In June 1979, Milacron offered to replace the 15HC within six months to one year, but this offer was rejected by Mateo. Finally, in January 1980, Mateo sold the 15HC on an exchange basis through a machinery broker. Mateo received $400,000 credit for the 15HC which was applied to the purchase of a different machining center, received by Mateo in January 1981. Milacron does not challenge the sufficiency of the evidence to support the jury verdict but rather argues that several instructional errors were made by the district court warranting reversal. DISTRICT COURT’S PREFATORY REMARKS Milacron first argues that the district court, in its reading of the instructions to the jury, unduly highlighted portions of the charge important to Mateo, while minimizing other portions critical to Milacron. The district court introduced the first seven instructions (of the thirteen instruction charge), including a credibility of witnesses instruction and an instruction on expert testimony, as “boilerplate” and “standard instructions that were selected for this particular case but not necessarily drafted for it and they deal with general principles of law.” The court prefaced the next three instructions as follows: “Now the next three instructions which I am going to read to you are called the verdict director instructions. These instructions go to the heart of the case and they deal specifically with the law in this particular case.” Mila-cron argues that this characterization of the instructions slighted the credibility determinations crucial to Milacron’s case and influenced the jury to accept Mateo’s theory of the case. No objection to the manner in which the district court prefaced the instructions was made at trial even though counsel were given the opportunity to do so after the instructions were read and before the verdict form was given to the jury. Milacron thus gave the district court no opportunity to consider Milacron’s concern and perhaps take some corrective measures, if it so saw fit. We are unpersuaded by Milacron’s argument that the district court’s remarks were so prejudicial and egregious as to render any corrective measure futile. Actually, we are unconvinced that the challenged remarks were prejudicial at all. We therefore rule against Milacron on this point. SUBSTANTIVE CHALLENGES We next examine Milacron’s substantive challenges to the instructions themselves. As a preliminary matter we note that although Ohio law determines the substance of the jury instructions in this diversity action, the grant or denial of instructions and the test for sufficiency of the evidence to justify submission of an issue to the jury are matters of federal law and the Federal Rules of Civil Procedure. E.g., McGowne v. Challenge-Cook Bros., 672 F.2d 652, 662 (8th Cir.1982); Wright v. Farmers Co-op, 620 F.2d 694, 697 (8th Cir.1980); Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734, 740 (5th Cir.1980). Condition Precedent in the Warranty Milacron first argues that the district court erred by failing to instruct the jury that in order to recover under the express warranty, Mateo had to comply with the proper foundation condition upon which the warranty was dependent. A party relying on an express warranty under Article 2 of the Uniform Commercial Code, enacted in Ohio at Ohio Rev.Code Ann. §§ 1302,01-98 (Page 1979), must show performance of conditions upon which the right to assert the warranty depends, excuse of performance, or waiver thereof. See Southern Illinois Stone Co. v. Universal Engineering Corp., 592 F.2d 446, 452 (8th Cir.1979) (applying Illinois law); Melcher v. Boesch Motor Co., 188 Neb. 522, 198 N.W.2d 57, 61 (1972). In the present case, however, there is no dispute that by the early part of April 1979, the 15HC was installed on a concrete foundation in conformance to Milacron’s own recommendations. It is also undisputed that for several months thereafter the 15HC would not hold the positioning and repeatability accuracies as represented in the proposal. Thus there was no question of fact for the jury as to whether Mateo complied with the foundation requirements, and the district court was justified in not submitting this issue to the jury. See Hallberg v. Brasher, 679 F.2d 751, 754 (8th Cir.1982). Limitation of Liability Clause Milacron next argues that the district court erred in failing to instruct the jury that Mateo could only recover direct damages (difference between the value of the machining center as accepted and its value as warranted) and consequential damages {e.g., loss of profits) if the limitation of liability clause in the Terms and Conditions Domestic failed of its essential purpose. Ohio law recognizes that a seller may validly limit its liability under an express warranty to the repair and replacement of defective products or parts. Ohio Rev. Code Ann. § 1302.93(A)(1) (U.C.C. 2-719); Goddard v. General Motors Corp., 60 Ohio St.2d 41, 396 N.E.2d 761 (1979). However, “where circumstances cause an exclusive remedy to fail of its essential purpose,” the buyer may recover direct damages as well as consequential damages notwithstanding an express contract provision excluding such damages. Ohio Rev.Code Ann. § 1302.93(B); Goddard v. General Motors Corp., 396 N.E.2d at 765-66. Comment 1 to § 1302.93 states that “where an apparently fair and reasonable clause because of circumstances fails of its purpose or operates to deprive either party of the substantial part of the bargain, it must give way to the general remedy provisions of this Chapter.” See, e.g., Eckstein v. Cummins, 41 Ohio App.2d 1, 321 N.E.2d 897, 904 (1974) (seller’s inability to remedy defects in automobile invalidated limitation of remedy clause), rev’d on other grounds, 46 Ohio App.2d 192, 347 N.E.2d 549 (1975). See also Fargo Machine & Tool Co. v. Kearney & Trecker Corp., 428 F.Supp. 364, 381-83 (E.D.Mich.1977) (limitation of buyer’s remedy to repair or replacement of automated machining center inoperative where defect was not cured). In the present case, the instructions to the jury did not predicate an award of direct damages upon a finding that the repair and replacement remedy failed of its essential purpose. Although neither Milacron’s own proferred instructions nor its objections to the district court’s instructions precisely identified this error, we believe that Milacron did make the trial court aware of its position, thus preserving the error for review. See, e.g., Otten v. Stonewall Insurance Co., 511 F.2d 143, 146 (8th Cir.1975). In reviewing this assignment of error, we must look to the instructions as a whole and consider the overall charge to the jury. Fields v. Chicago, Rock Island & Pacific R.R., 532 F.2d 1211, 1213-14 (8th Cir.1976). In the present case the jury was required to find that Milacron “was given the opportunity to but failed, refused or was unable to cure defects in the 15HC-2500 machining center within a reasonable time” in order to award Mateo consequential damages. The jury verdict was a general verdict and, given the facts of this case, it clearly reflects an award of consequential damages. The jury therefore had to have made the requisite finding of failure of the limitation of liability clause. We thus find no reversible error on this point. Measure of Damages Milacron argues that the damages instructions did not correctly set forth the measure of damages in this breach of warranty case. In the instruction on the measure of direct damages, the jury was told that if it found that Mateo sold the 15HC it “may consider the amount of any such payment to Mateo in determining the amount of damages, if any, which [it] award[s] to Mateo under this instruction given by the court.” This reference to the resale by Mateo of the 15HC was not repeated in the instruction on consequential damages. Mi-lacron argues firstly that the use of the word “may” instead of “should” or “must” was erroneous and secondly, that because the district court read the number of each instruction, the words “this instruction” incorrectly limited the jury to considering the resale proceeds in determining direct damages only. This allegation of error has not been preserved for appellate review because Milacron failed to object thereto before the district court as required by Fed.R.Civ.P. 51. In this circuit, the plain error exception to compliance with Rule 51 is narrow and “confined to the exceptional case where the error has seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Rowe International, Inc. v. J-B Enterprises, Inc., 647 F.2d 830, 835 (8th Cir.1981); Wright v. Farmers Co-op, 620 F.2d at 699. We have examined the challenged instructions and hold that while they are not precisely correct, the error has not seriously affected the fairness of the proceedings. Consequential Damages Milacron’s final argument on appeal is that the instruction on consequential damages gave the jury a roving commission in that it gave a general definition of consequential damages without tying it to any specific evidentiary facts. Milacron also argues that the instruction contained words of art unintelligible to the average juror. The challenged instruction closely follows the statutory language on consequential damages and is a clear and accurate statement of the law. We also think the instruction gave adequate guidance to the jury. Accordingly, we affirm the judgment of the district court. . The Honorable Clyde S. Cahill, United States District Judge for the Eastern District of Missouri. Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:

songer_treat

D

What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. Abraham MANDEL, Executor of the Will of Max Mandel, Deceased, Plaintiff-Appellant, v. Walter R. STURR, Collector of Internal Revenue for the 14th District of New York, et al., Defendants-Appellees. Pauline HOFFMAN, Lillian Starr, Joseph J. Mandel and Abraham Mandel, Plaintiffs-Appellants, v. David COPANS, Executor of Harry M. Hickey, deceased, former Collector of Internal Revenue for the 14th District of New York, et al., Defendants-Appellees. Nos. 59 & 60, Dockets 24993, 24994. United States Court of Appeals Second Circuit. Argued Jan. 7, 1959. Decided April 29, 1959. James R. Rowen, New York City (Abraham Mandel, New York City, on the brief), for plaintiffs-appellants. Arthur V. Savage, Asst. U. S. Atty., Southern District of New York, New York City (Arthur H. Christy, U. S. Atty., Southern District of New York, New York City, on the brief), for defendants-appellees. Before CLARK, Chief Judge, MOORE, Circuit Judge, and GIBSON, District Judge. GIBSON, District Judge. Abraham Mandel, executor under the will of Max Mandel, and the beneficiaries, Pauline Hoffman, Lillian Starr, Joseph J. Mandel, Abraham Mandel, hereinafter referred to as the beneficiaries, brought their actions to recover amounts paid by them under protest as a result of additionally assessed estate and income taxes. The executor and the beneficiaries, respectively appeal from the determinations of the Trial Court sustaining in part the deficiency assessed by the Commissioner of Internal Revenue in the estate tax reported by the executor and the income taxes of the recipient-beneficiaries. The appeals in the two cases have been consolidated. The essential facts of this case are fairly clear. At the date of Max Mandel’s death on June 9, 1945, he and David Wolf son were sole partners in a military uniform business. It is apparent from the facts that the partnership owned and required substantial capital to function. Under the terms of an agreement entered into between the surviving partner and the executor, on December 31, 1945, the book value of Max Mandel’s share in the tangible assets of the partnership was fixed at $153,162.56. There is no reason to doubt that this was a fair valuation. In fact, that figure is not questioned either in the court below or before this court. That amount was included in the decedent’s gross estate and the estate tax properly paid. The sole issues here are (1) whether the gross estate of the decedent includes an amount ($12,595.57) received pursuant to a partnership agreement representing interest on the capital account (valued at $153,162.56), and (2) whether it includes an amount ($10,-000) received by the estate in settlement of a claim to participate in the profits of the business as carried on by the surviving partner (Wolfson) subsequent to the death of Max Mandel. Are these amounts “income in respect of a decedent” to the beneficiaries within the meaning of Section 126, Internal Revenue Code of 1939, 26 U.S.C.A. § 126? The partnership agreement in effect at Max Mandel’s death provided in part as follows: “13. That at the expiration of this partnership by the expiration of its term or by reason of any other cause, a full and accurate inventory shall be prepared, and the assets, liabilities and income, both gross and net, shall be ascertained; the debts of the partnership shall be discharged; and all monies and other assets of the partnership then remaining shall be divided in specie between the parties share and share alike, provided, however, that the capital accounts are equal, and if not equal, in that event in such proportion as the capital accounts bear to each other.” “18. That in the event of the death of either party hereto, this partnership shall terminate and the surviving partner shall become trustee of all of the assets and business of the partnership for the purpose of liquidating the same, discharging its debts and paying to the representatives of the deceased party the respective share as hereinabove provided of said deceased party. The said surviving party shall pay to the representatives of the deceased party the sum of $5,-000. in cash immediately upon receipt from the insurance company of the proceeds of the policy referred to hereinabove in Paragraph 16 and the balance of the deceased party’s share in the partnership in 40 equal monthly installments with interest at the rate of 6% per annum to be computed from the date of demise * * *” There are other provisions in the agreement whereby a retiring partner could similarly receive installment payments of his partnership share upon retirement. There is little or no doubt that the value of an estate’s right to receive income earned by a partnership subsequent to the death of a deceased partner is includible in the gross estate. As this court stated in Riegelman’s Estate v. Commissioner, 2 Cir., 1958, 253 F.2d 315, 316, an extended discussion is not required as to that particular point, it having been adequately reviewed and analyzed elsewhere. However, this case is distinguishable from Riegelman on the facts. The amount of $22,595.57, the subject of this appeal, derives from two sources. Firstly, under the quoted portions of the partnership agreement, the deceased partner’s share in the partnership assets was payable to the estate in 40 equal monthly payments with interest at 6% per annum. There was, however, a lapse of some six months from the date of Max Mandel’s death without any such payments being made. It is apparent that after negotiation between the executor and the surviving partner, David Wolfson, a Memorandum Agreement was entered into which provided that the deceased partner’s share of the partnership assets, valued at $153,162.56, would be paid to the estate in full. Wolfson then paid that amount as agreed. They further agreed that the amount of $12,-595.57 was to be paid to the estate in full settlement of all interest due or to become due on the capital account under the Mandel-Wolfson partnership agreement and that an additional $10,000 would be paid by Wolfson in settlement of any claim the estate and beneficiaries might have to post-mortem profits in the partnership. There is no evidence that these were other than arm’s-length negotiations, or that the interest provisions of the partnership agreement were calculated as a method of substituting interest payments for capital to escape possible estate taxation. The sum of $22,595.57, representing the total of $12,595.57 in interest and $10,000 in settlement of the claim to future profits was paid by Wolf son and distributed to the beneficiaries. The executor and recipient-beneficiaries brought their actions to recover taxes paid on these amounts under protest. Although Section 126 of the Internal Revenue Code of 1939 is high on the list of vaguely drafted legislation in a field notoriously complex, we see no reason to extend its broad language so far as the Government urges in this case. The $12,595.57 was paid by Wolf-son in settlement of. interest due on an asset of the estate. It was a fair amount to pay for the full usage had by Wolf-son of the capital of the estate invested in his business over the period of time until the full share of the decedent’s interest in the partnership assets was paid in full to the estate. As such, the $12,-595.57 is in the nature of a legal rate of interest or return on a capital investment significantly represented by the principal amount of $153,162.57, already included in the gross estate and the estate tax once paid. To perpetually tax the right to interest or earning capacity of the capital already included in the gross estate, as the appellee suggests, extends the meaning of the Code beyond reason. The Government places much reliance on the Riegelman case, supra, wherein this court reviewed much of the legislative and case history of Section 126, Internal Revenue Code of 1939. That case has, however, no factual similarity to the ease before us. In the case before us, capital is a substantial income producing factor, whereas in Riegelman, it is not. The interest payment can hardly be said to be “the fruits of the (deceased’s) professional activity during his lifetime.” The $12,595.57 has once been accounted for, in effect, by the inclusion of the $153,162.56 in the decedent’s gross estate and is an inherent part of that amount. Such a conclusion is in accord with the court’s reasoning in McClennen v. Commissioner of Internal Revenue, 1 Cir., 131 F.2d 165, 169, 144 A.L.R. 1127. There Judge Magruder aptly analogizes to the case of one who dies possessed of a $1,000 bond payable in ten years bearing interest at 6%. Judge Magruder points out that the bond in its entirety, valued at par at the date of death, will be included in the gross estate, and upon the decedent’s death the right to future income payments have been in effect included in that amount in his gross estate. In short, the interest payment in the case before us is not separately attributable “to the activities of the decedent during his lifetime,” but is attributable to the earning capacity of the capital of the estate allowed to remain in Wolfson’s business. It has been in effect accounted for by the inclusion of $153,162.56, the deceased’s share in the partnership, in the gross estate. In the absence of any evidence of subterfuge on the part of the partners, Mandel and Wolf son, whereby the value of their respective partnership share was understated and subsequently paid out to the estate in the guise of interest payments, we hold that the interest payment of $12,595.57 is not a proper item for inclusion in the decedent’s gross estate, nor is it to the recipient-beneficiaries “income in respect of a decedent.” It is, however, as the appellants admit, ordinary income accruing to the estate and beneficiaries. The $10,000 item which the Government contends is squarely within the rationale of the Riegelman and McClennen cases poses another question. If this payment represents a settlement of the estate’s established right to postmortem partnership earnings, and such right was created prior to the decedent’s death as a substitute for the estate’s common law liquidation share, then it is a sum includible in the gross estate. However, to characterize the $10,000 payment as a settlement of an existing right of the estate at the date of the decedent’s death is inaccurate. The situation as to the $10,000 Wolfson paid the executor and beneficiaries to settle their claim for post-mortem profits is quite different. Had Wolfson promptly carried out the terms of the partnership agreement, the executor and beneficiaries would have had no right to claim any share in post-mortem profits. Neither the decedent nor his executor or beneficiaries could anticipate that Wolfson would not promptly proceed to carry out the applicable provisions of the partnership agreement. When the executor concluded that Wolfson had unduly delayed carrying out the terms of the partnership agreement he entered a claim for post-mortem profits accruing during this claimed undue delay. In McClennen and in Riegelman the courts had before them partnership agreements obviously providing for a right of the estate to share in postmortem profits in lieu of common law liquidation rights to which the estate would have succeeded in the absence of those agreements. There is no such provision in the Wolfson-Mandel partnership agreement. As stated in Riegelman [253 F.2d 319]: “the payments were not gifts, nor were they attributable to anything done by Riegelman’s estate.” On the other hand, in the case before us, the $10,000 was a purchase of peace by Wolfson, in effect attributable to the activity of the executor and beneficiaries. When Max Mandel died on June 9, 1945, the estate was properly entitled to a settlement of its share in the Mandel-Wolfson partnership interest pursuant to the partnership agreement. While the decedent’s estate was entitled to monthly payments with interest in the manner provided in sections 13 and 18 of that agreement, there is no provision for post-mortem partnership profit payments such as we find in Riegelman. It was only after a lapse of six months or so, during which time no monthly payments were forthcoming that the executor felt entitled to a certain percentage of partnership profits to compensate them for Wolfson’s undue delay in paying over its share in the partnership assets. The estate’s share in the partnership’s tangible assets was a benefit to Wolfson’s business so long as it was retained by him after the death of the decedent, Max Mandel. From these facts the estate’s claim to partnership profits arises. In settlement of this claim, the executor, Wolfson, and the beneficiaries entered into a Memorandum Agreement whereby it was agreed that Wolfson would pay $10,000 in full settlement of any claim the executor and the beneficiaries might have to post-mortem profits; in Wolfson’s business. This payment is referred to in the Memorandum Agreement as being “in full settlement of the claim of (the executor and the beneficiaries) to participate in the profits of (the business) * * * ”, This Memorandum Agreement established a new right that did not exist at the time of the decedent’s death — a sum paid in satisfaction of the contentions of all parties thereto. $10,000 paid under these circumstances does not conclusively establish an existent right of the estate to participate in post-mortem profits when we come to the issue of estate and income taxes. There may well have been no validity to the estate’s contentions as to profits prior to the Memorandum Agreement. However, an agreement to pay and accept $10,000 in settlement of the dispute is entirely reasonable and beneficial to Wolfson’s business and to the estate, both desiring to clear up the affairs expeditiously with a minimum of litigation and expense. On the facts of this case, the payment by way of settlement (attributable to the activity of the estate) is not includible in the estate of the decedent under Section 811 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 811, nor is it “income in respect of a decedent” under Section 126 any more than it would be if it were a gift from Wolfson to the estate and beneficiaries. See Bausch’s Estate v. Commissioner, 2 Cir., 186 F.2d 313. The $10,000 is ordinary-income accruing to the estate and beneficiaries. Lastly, the question of attorney’s fees is raised by appellants. The Trial Court found the sum of $2,500 to be a reasonable amount for prosecuting the refund claim, and disallowed the $5,000 figure claimed. In computing the estate tax, the estate was allowed a $2,500 deduction. We are unwilling to reverse without concluding that the Trial Court’s findings were clearly erroneous. International Bureau v. Bethlehem Steel Company, 2 Cir., 192 F.2d 304. There is no basis for the appellant’s contention that the Trial Court abused its discretion. It is apparent, however, that the $2,500 allowed did not include this appeal. The Trial Court is in a far better position than is this court to determine whatever should be allowed for these services. Accordingly, we remand to the Trial Court, as we have done in the past, for a determination of the amount that should be allowed for this appeal. Bassett’s Estate v. Commissioner of Internal Revenue, 2 Cir., 170 F.2d 916. Reversed in part; remanded for further proceedings consistent with the views expressed herein. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:

songer_state

33

What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". MORGAN v. MORGAN. No. 130, Docket 22527. United States Court of Appeals Second Circuit. Argued Jan. 15,1953. Decided Feb. 5, 1953. MacFarlane, Harris, Dankoff, Martin & Smith, Rochester, N. Y., for plaintiff-appellee; Darrow A. Dutcher, Rochester, N. Y., of counsel. Lombardo & Pickard, Jamestown, N. Y., for defendant-appellant; Clarence G. Pickard, Jamestown, N. Y., of counsel. Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge. The plaintiff and the. defendant were married in 1935. In 1946 they executed an instrument, dated March 9 and acknowledged March 11 of that year, which provided that they should live apart and would not molest one another. A division of their properties was made and the plaintiff agreed not to compete with the business previously conducted by herself and her husband jointly. They further agreed that the wife should have custody of their three children but the husband was to have the right to visit them at any reasonable time of day and to have them with him for one month during the summer vacation. The defendant agreed to pay $60 to his wife semi-monthly on the first and fifteenth days of the month. The present action was brought to recover these payments for the period from March 15, 1946 to June 29, 1949, at which latter date plaintiff married Kenneth D. Holland. No claim is made for payments that were due in April, May and June 1946, since these had already been made. The complaint alleged that the plaintiff had fully performed her obligations under the separation agreement but that she was compelled to remove herself and her children from Jamestown, New York, where she and her husband had lived, to California because of acts of molestation committed by the defendant. The answer denied that the move to California was justified, and alleged that the plaintiff had violated the separation agreement by preventing the defendant from exercising his right to visit the children and to have them with him for a month during the summer. A separation decree obtained by the defendant in the Supreme Court of the State of New York m 1948, awarding him custody of the children, and a divorce secured in Nevada by the plaintiff in 1946 were asserted as an affirmative defense to the complaint. The trial judge set aside a verdict for the plaintiff rendered by the jury and ordered a new trial on the motion of the defendant. This ruling appears to have been due to the failure of the plaintiff to show that she had not herself broken the agreement of separation without justification. On the retrial the judge left to the jury the question whether the plaintiff’s removal to California was justified by the defendant’s actions and the jury again held for the plaintiff. The verdict if generally justified should be reduced by $150 since the plaintiff now admits that the defendant was not credited with payments actually made in that amount. The defendant claims a further credit of $60, asserting that checks withdrawn by the plaintiff from the account of the company conducted by the defendant and herself shortly prior to the separation agreement and a check for $10 for household expenses given by the defendant to the plaintiff a few days after the agreement was entered into were regarded by the parties as constituting the first payment. There was no evidence that the parties intended these checks to satisfy the initial payment and the verdict, which did not take them into account as a payment, precludes their application for such purpose. In instructing the jury, the judge charged: “The question for your determination is whether the plaintiff violated the separation agreement by removing from her home, taking her three children out of access by the husband and whether this removal was justified by the actions of the defendant. If she did so remove without the right to do so, she cannot recover.” Later in the charge, he added: “The case, as I said, boils down to just the question of the rights of the parties under this agreement. Whether the defendant violated the agreement to that extent that it exonerated her from the liability to keep her children here and performing the other parts of the contract or whether she violated the contract by taking these children away without reasonable cause.” This is an accurate statement of the law of New York. While an unreasonable refusal by the plaintiff to allow the defendant to visit the children would relieve the defendant of his obligation to make the payments tinder the agreement, the question as to whether the defendant’s acts were such as to justify the removal to California was correctly left to the jury. Duryea v. Bliven, 122 N.Y. 567, 25 N.E. 908; see Muth v. Wuest, 76 App.Div. 332, 78 N.Y.S. 431; Matter of Noel’s Estate, 173 Misc. 844, 19 N.Y.S.2d 370. There was evidence, though disputed, that the husband did abuse and intimidate the plaintiff so that she was justified in removing her children to California. Consequently, under the law of New York and the record thus presented the jury could find that she was entitled to do this even though the result was a deprivation of the husband’s general right of visitation under the contract of separation. The delay of two and one-half years in bringing this suit was not necessarily a waiver of the plaintiff’s rights as a matter of law. Cf. Matter of Nutrizio, 145 Misc. 626, 260 N.Y.S. 401. As the judge said in his charge, the delay clearly bore on her good faith in removing the children from Jamestown, New York, which was the original domicile of herself, her children and the defendant. The jury failed to find that there had been a waiver and its action was not without substantial support in the evidence. Some of the questions asked of the defendant on cross-examination as to whether he was arrested or convicted for disorderly conduct or intoxication were improper attempts to impeach him as a witness, but they were so held by the judge who told the jury to disregard them. We cannot think a judgment for the plaintiff after two separate trials resulting in verdicts in her behalf should be reversed on any such trifling ground. Certain improper remarks by the plaintiff, asserted as error, were stricken by the court and were not sufficiently important to justify reversal. Fed.Rule Civ.Proc. 61, 28 U.S.C.A.; 28 U.S.C.A. § 2111. The complaint that the judge required incompetent parts of a deposition to be read aloud within the jury’s hearing before ruling on the defendant’s objection also is without melit. No request was made that the jury be excused while the objections were taken. Moreover, the testimony was stricken .and was not of such a nature as to call for a reversal. The defendant contends that the New York separation decree awarding him custody of the children is a bar to this action. Assuming that the New York court had jurisdiction to enter such a decree, we do not think that the defendant’s obligations under the contract were thereby altered. A separation agreement, like any other contract, may be impeached on grounds of fraud or duress. Galusha v. Galusha, 138 N.Y. 272, 33 N.E. 1062; cf. Johnson v. Johnson, 206 N.Y. 561, 100 N.E. 408. But a decree of divorce or separation leaves the obligations under such an agreement unaffected. Galusha v. Galusha, 116 N.Y. 635, 22 N.E. 1114, 6 L.R.A. 487; Cain v. Cain, 188 App.Div. 780, 177 N.Y.S. 178; see Goldman v. Goldman, 282 N.Y. 296, 26 N.E.2d 265. The agreement here provided: “The husband shall pay to the wife the sum of One Hundred and Twenty Dollars ($120.00) per month, semi-monthly on the first and fifteenth day of each and every month, said sum to be reduced by the sum of Twenty Dollars ($20.00) in the event that any of the said children shall die, become eighteen years of age, or marry, or become self sufficient whichever contingency first occurs.” None of these contingencies had occurred so that the separation agreement clearly remained unimpaired even though the New York decree awarded the husband legal custody of the children. In view of the above we hold that a verdict for the plaintiff was justified and that judgment as reduced by $150 should be entered as against the defendant. Accordingly the case is remanded for this purpose. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:

songer_r_fiduc

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. HUMBER v. BANKERS’ TRUST CO. No. 6424. Circuit Court of Appeals, Sixth Circuit. April 13, 1934. Jay E. McMullen, of Detroit, Mich., for appellant. . Ered H. Aldrich and E. 0. Zirkalos, both of Detroit, Mich., for appellee. Before HICKS and SIMONS, Circuit Judges, and WEST, District Judge. PER CURIAM. Humber filed voluntary petition and was adjudged bankrupt on August 31, 1932. On October 21, 1932, Bankers’ Trust Company, receiver of Humber, filed its petition to vacate the adjudication and dismiss the voluntary petition for want of jurisdiction. This petition recited the recovery in the state court by two creditors of a deficiency decree against Humber in 1927, on which execution was thereafter returned unsatisfied, and set up subsequent proceedings in the state court to reach and subject assets of the bankrupt, in the course of whieh said receiver was appointed in October, 1930. In substance the ground of the petition was that due to lapse of time, transfers of and liens on the bankrupt’s property were immune from attack in bankruptcy, and the subject-matter of the proceeding was in the possession and within the exclusive jurisdiction of the state court. On November 15, 1932, after hearing, the district court vacated the adjudication of bankruptcy and by the same order dismissed Humber’s petition. The appeal which followed was allowed by the District Court only. In Michigan Garage & Accessory Co. v. Drury, 31 F.(2d) 434, this court dealt with such an appeal which set aside the adjudication and dismissed the voluntary petition and held that it would properly lie under section 25a of the Bankruptcy Act (11 U. S. C. § 48 (a), 11 USCA § 48 (a). The first headnote in Vallely v. Northern Fire & Marine Ins. Co., 254 U. S. 348, 41 S. Ct. 116, 65 L. Ed. 297, reads: “A petition to revise in matter of law under section 24b of the Bankruptcy Act [11 USCA § 47 (b)] is the proper remedy to review an order of an inferior court of bankruptcy vacating an adjudication and dismissing the bankruptcy proceeding for want of jurisdiction upon the motion of the bankrupt after the expiration of the time for appeal, he having neither contested the involuntary petition against him' nor appealed from the adjudication.” The difference between the facts in that ease and the one at bar does not appear to justify a different ruling here. While petitions to revise have been abolished, and all review is now by appeal, section 24b, 11 US CA § 47 (b) still governs the review of proceedings in bankruptcy. This ease was appealable under section 24b (11U. S. C. § 47 (b), 11 USCA § 47 (b). The remedies by appeal are mutually exclusive. Matter of Loving, 224 U. S. 183, 32 S. Ct. 446, 56 L. Ed. 725; In re Mueller, 135 F. 711 (C. C. A. 6). We,are consequently constrained to overrule the Drury Case, supra, and hold that the appeal in the present case was not properly taken and must be dismissed. Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number. Answer:

songer_genresp1

H

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. Clifford J. LEWIS, Jr., Plaintiff-Appellant, v. George P. BAKER et al., Defendants-Appellees. No. 195, Docket 75-7134. United States Court of Appeals, Second Circuit. Argued Oct. 7, 1975. Decided Nov. 20, 1975. Albert A. Jurón, New York City (Jurón and Minzner, P. C., New York City), for plaintiff-appellant. Robert M. Peet, New York City, for defendants-appellees. Before WATERMAN, OAKES and MESKILL, Circuit Judges. WATERMAN, Circuit Judge: Plaintiff, Clifford J. Lewis, Jr., brought this action in the United States District Court for the Southern District of New York pursuant to the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. and the Federal Safety Appliance Act, 45 U.S.C. § 1 et seq. alleging he suffered a disabling injury while employed by the Penn Central Railroad. Judgment was entered in favor of defendants after a jury trial. Plaintiff appeals and seeks a new trial on the following grounds: (1) accident reports were improperly admitted into evidence; (2) the trial court erred in charging the jury that they might infer proper functioning of the brake from evidence of the brake’s condition before and after the accident; and (3) the trial court erred in charging that the jury might consider plaintiff’s response to a question in his employment application on the issue of his credibility. Finding no merit to the above contentions, we affirm. On the date of his injury, October 26, 1969, plaintiff was employed as a freight brakeman or car dropper in the Penn Central railroad freight yard in Morris-ville, Pennsylvania. His work called for him to move freight cars in a railroad yard by riding them down a slope while applying the brake manually. Plaintiff testified that immediately before the incident in question, he climbed onto the lead car of two box-cars, stationed himself on the rear brake platform of that car, applied the brake to test it, and found that the brake held. Upon his signal, another employee of the railroad released the two box-cars from the rest of the train at the top of a hill, at which time they started to roll down the slope. Plaintiff then started to turn the vertical brake wheel so that the car would slow down as it descended the slope and would ease into the train with which it was to couple on a track beyond the bottom of the slope. He claims that the brake did not hold, that the car continued to gather momentum, and that he then decided to leap off the car to avoid injury. As a result of the fall, he claims to have sustained substantial knee injury and the aggravation of a preexisting psychiatric condition which has precluded his returning to his job. There were no witnesses to the accident other than the plaintiff. At the trial, defendants sought to rebut plaintiff’s allegations of a faulty brake with evidence that the brake had functioned properly immediately prior to the accident when the plaintiff tested it, and immediately after the accident when it was checked in connection with the preparation of an accident report. It was the defendants’ contention that plaintiff improperly set, or forgot to set, a necessary brake handle, panicked, and then leapt from the car. In support of their interpretation of the events, defendants offered into evidence a “personal injury report” and an “inspection report.” Frank Talbott, a trainmaster, testified that the personal injury report was signed by him and prepared under his supervision. The information had been provided to him by William F. Campbell, the night trainmaster. Talbott confirmed the authenticity of the record and testified that he was required to make out such reports of injuries as part of the regular course of business. At the trial David W. Halderman, an assistant general foreman for the defendants, identified the inspection report which had been prepared by Campbell and by Alfred Zuchero, a gang foreman. This report was based upon an inspection of the car Campbell and Zuchero had conducted less than four hours after the accident. Halderman testified that Zuchero was dead and that Campbell •was employed by a railroad in Virginia. The latter was thus beyond the reach of subpoena. Halderman also confirmed that following every accident involving injury to an employee his office was required to complete inspection reports, and that such reports were regularly kept in the course of business. Over objection, the court admitted both reports into evidence. Determination of the admissibility of these reports under the Federal Business Records Act involves two problems: whether the reports are business records within that statute, and whether the fact that the accident report was prepared by an employee who had neither firsthand knowledge of the accident nor had inspected the purportedly defective car and brake affects admissibility into evidence. As a preliminary matter, there is little doubt that these reports are each a “writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event. . .” 28 U.S.C. § 1732 (1966). Furthermore, it is beyond dispute that these reports were made pursuant to a regular procedure at the railroad yard, and that Talbott, Campbell and Zuchero made the reports within a reasonable time after the accident. Appellant argues, however, that notwithstanding the presence of those factors which would indicate a full compliance with 28 U.S.C. § 1732, the Supreme Court’s decision in Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), precludes their admission into evidence. There the Court upheld the inadmissibility of an accident report offered by the defendant railroad that had been prepared by one of its locomotive engineers. The Court stated that since the report was not prepared “for the systematic conduct of the business as a business,” it was not “made ‘in the regular course’ of the business” of the railroad. 318 U.S. at 113, 63 S.Ct. at 481. We find significant differences between the report and the circumstances of its making in that case and the facts here, and we uphold the district court’s admission of the records below. In Palmer v. Hoffman, the engineer preparing the report had been personally involved in the accident, and, as Circuit Judge Frank stated in his opinion for the Court of Appeals, the engineer knew “at the time of making it that he [was] very likely, in a probable law suit relating to that accident, to be charged with wrongdoing as a participant in the accident, so that he [was] almost certain, when making the memorandum or report, to be sharply affected by a desire to exculpate himself and to relieve himself or his employer of liability.” 129 F.2d 976, 991 (2d Cir. 1942) (italics omitted). Here there could have been no similar motivation on the part of Talbott, Campbell or Zuchero, for not one of them was involved in the accident, or could have possibly been the target of a lawsuit by Lewis. In United States v. New York Foreign Trade Zone Operators, 304 F.2d 792 (2d Cir. 1962), we sustained the admissibility of a similar report by the co-employee of the injured party which had been prepared as part of the regular business of the defendant pier-owner and operator. As we explained there, the mere fact that a record might ultimately be of some value in the event of litigation does not per se mandate its exclusion. In Palmer v. Hoffman, “[o]bviously the Supreme Court was concerned about a likely untrustworthiness of materials prepared specifically by a prospective litigant for courtroom use.” 304 F.2d at 797. The fact that a report embodies an employee’s version of the accident, Taylor v. Baltimore & Ohio R. R. Co., 344 F.2d 281 (2d Cir. 1965), or happens to work in favor of the entrant’s employer, Naylor v. Isthmian S. S. Co., 187 F.2d 538 (2d Cir. 1951) does not, without more, indicate untrustworthiness. See Pekelis v. Transcontinental & W. Air, Inc., 187 F.2d 122 (2d Cir.), cert. denied, 341 U.S. 951, 71 S.Ct. 1020, 95 L.Ed. 1374 (1951). In the absence of a motive to fabricate, a motive so clearly spelled out in Palmer v. Hoffman, the holding in that case is not controlling to emasculate the Business Records Act. Therefore the trial court must look to those earmarks of reliability which otherwise establish the trustworthiness of the record. See Gaussen v. United Fruit Co., 412 F.2d 72, 74 (2d Cir. 1969). Here the ICC requires the employer to prepare and file monthly reports of all accidents involving railroad employees. Assistant general foreman Halderman testified that following every injury he was required to inspect the equipment involved and to report the results of the inspection on a regular printed form. As we stated in Taylor v. Baltimore & Ohio R. R. Co., supra, “[i]t would ill become a court to say that the regular making of reports required by law is not in the regular course of business.” 344 F.2d at 285. In addition to their use by the railroad in making reports to the ICC, the reports here were undoubtedly of utility to the employer in ascertaining whether the equipment involved was defective so that future accidents might be prevented. These factors, we think, are sufficient indicia of trustworthiness to establish the admissibility of the reports into evidence under the Federal Business Records Act. The fact that the trainmaster Talbott completed the personal injury report based on information supplied to him by a third person, Campbell, does not render the report inadmissible. 28 U.S.C. § 1732 explicitly states that “lack of personal knowledge by the entrant or maker” shall not affect the admissibility of the record, and may only affect its weight. See also United States v. Re, 336 F.2d 306, 313-14 (2d Cir.), cert. denied, 379 U.S. 904, 85 S.Ct. 188, 13 L.Ed.2d 177 (1964). Nor does the fact that the entrant does not testify preclude the admission of the record. All that is required is that someone who is sufficiently familiar with business practices be able to testify that the record was made regularly as part of those business practices and that the record is a truly authentic one. United States v. Dawson, 400 F.2d 194, 198-99 (2d Cir. 1968), cert. denied, 393 U.S. 1023, 89 S.Ct. 632, 21 L.Ed.2d 567 (1969); United States v. Teague, 445 F.2d 114, 119 (7th Cir. 1971). Witnesses Talbott and Halderman met those requirements. Appellant next contends that the district court erred in charging the jury that if the brake operated properly before the accident, that the jury might “presume that the functioning would have continued ... at the time of plaintiff’s accident,” and that if the brake was found to be functioning normally and properly when it was later inspected by the trainmaster and gang foreman, that they might “infer or conclude ... it would have operated normally and properly at the time of the accident, and, therefore, was not defective.” During the trial, the plaintiff testified that the brake had in fact operated properly when he tested it prior to the release of the car. The information contained in the inspection report showed that Campbell and Zuchero had found nothing wrong with the brake in question when they inspected it after the accident. When the state of an object at a particular time is in issue, we have repeatedly upheld the relevancy of evidence of that object’s condition before and after the time in question. See, e. g., Keohane v. New York Central R. R. Co., 418 F.2d 478, 481 (2d Cir. 1969); Manning v. New York Telephone Co., 388 F.2d 910, 912 (2d Cir. 1968); Berwind White Coal Mining Co. v. City of New York, 48 F.2d 105, 107 (2d Cir. 1931). See also 2 Wigmore, Evidence § 437 (3d ed. 1940). While the weight to be given evidence of prior and subsequent condition differs in each case and is of course a question for the trier of fact, it was proper for the trial judge to tell the jury that they might conclude or presume from that evidence a proper functioning during the interim. He additionally instructed that: If you find there was failure of the hand brake owing to unexplained reasons as distinguished from a known or explainable condition, then it is not material that the hand brake performed properly at another time. Thus, it was made clear to the jury that if they believed defendants’ evidence, they might infer continuance forward and back; but if they believed plaintiff’s testimony, then the prior and subsequent condition of the brake was not material. That was a correct statement of the applicable law. Appellant’s final contention pertains to the trial judge’s charge to the jury that it might consider on the issue of his credibility an employment application containing an admittedly untruthful statement regarding his psychiatric disorder. At the time of his application for employment with the defendant, Lewis was asked to complete a form which contained questions regarding his medical history and confinement in a hospital or sanitarium. He certified his negative answers to those questions to be true answers at the time he completed the form, but he admitted at trial that the negative answers were not truthful in view of his confinement to a psychiatric hospital and treatment less than five years prior to his employment with Penn Central. He now claims that it was improper for Judge Levet to charge the jury that those untruthful statements were relevant to any issue relating to his credibility. It is well-settled that the trial judge is accorded great discretion in his assessment of the matters which should properly be raised on cross-examination as bearing on the credibility of a party or witness. See, e. g., Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624 (1931); Wright v. United States, 87 U.S.App.D.C. 67, 183 F.2d 821, 822 (1950). The relevancy of testimony which aids in the jury’s determination of a party’s credibility and veracity has been repeatedly affirmed. Pullman Co. v. Hall, 55 F.2d 139, 141 (4th Cir. 1932); 3A Wigmore, Evidence § 922 (Chadbourn rev. 1970); McCormick, Evidence § 42 (1972). Although an opponent is not permitted to adduce extrinsic evidence that a party lied on a previous occasion, he may nonetheless ask questions to that end. Walker v. Firestone Tire & Rubber Co., 412 F.2d 60, 63-64 (2d Cir. 1969); Hawkins v. Missouri Pac. R. Co., 188 F.2d 348, 351-52 (8th Cir. 1951). The employment application involved here was a form completed by Lewis as a prerequisite to his obtaining the job of car dropper for Penn Central. His failure truthfully to inform his future employer of a psychiatric condition which defendants argue could have affected his judgment on the evening in question was thus not without probative value on the issue of his veracity. Particularly, as the jury’s ultimate task was to decide whether they would believe plaintiff’s or defendants’ account of the events on October 29, such evidence bearing directly on a party’s capacity for truth-telling was relevant. Thus the testimony regarding prior falsification of the application was properly elicited from Lewis, and we uphold the propriety of the trial judge’s charge that that evidence might be considered by the jury on the issue of plaintiff’s credibility. Affirmed. . 28 U.S.C. § 1732 provides, insofar as is applicable: Record made in regular course of business * * * (a) In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or Within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility. The term “business,” as used in this section, includes business, profession, occupation, and calling of every kind. . 45 U.S.C. § 38 provides in relevant part: It shall be the duty of the general manager, superintendent, or other proper officer of every common carrier engaged in interstate or foreign commerce by railroad to make to the Secretary of Transportation a monthly report, under oath, of all . . . accidents resulting in death or injury to any person. . . . Although 45 U.S.C. § 41 provides that neither the report required by section 38 nor any part thereof “shall be admitted as evidence . . . in any suit or action for damages growing out of any matter mentioned in said report or investigation,” we think it clear that the reports prepared by Talbott and by Campbell and Zuchero were not themselves monthly reports under section 41, and there is no indication that any part of the information contained in those reports will ever become part of the monthly report. Rather, it would appear that the forms completed by those employees were supplied by the employer, and that wholly different forms are utilized in complying with the federal reporting regulations, as prescribed by 49 C.F.R. § 225.1 et seq. Only the latter are barred by section 41 from admission in accident-related litigation. . The reports would also be admissible under the New York statute relative to business records, CPLR § 4518(a). Toll v. State of New York, 32 A.D.2d 47, 299 N.Y.S.2d 589 (1969); Bishin v. New York Central R. R., 20 A.D.2d 921, 249 N.Y.S.2d 778 (1964). . The New York statute contains an identical provision. Furthermore, where, as here, the entrant has obtained the information from those who have a duty to transmit it, and the informant and the recorder are in the same business, the “double hearsay” involved does not preclude admission of the record under New York decisional law. See Chemical Leaman Tank Lines, Inc. v. Stevens, 21 A.D.2d 556, 251 N.Y.S.2d 240 (1964); Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930). . New York law is in accord. Meiselman v. Crown Heights Hospital, 285 N.Y. 389, 34 N.E.2d 367 (1941). . Rule 608(b), Federal Rules of Evidence, provides that: Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness. . . While this court has consistently employed a rigorous rule in criminal cases requiring that specific acts of past misconduct may not be inquired into on cross-examination unless they resulted in conviction, that rule is inapplicable to civil cases. See Independent Productions Corp. v. Loew’s, Inc., 22 F.R.D. 266 (S.D.N.Y. 1958). . Such evidence is also admissible to impeach credibility in the New York courts. Batease v. Dion, 275 App.Div. 451, 90 N.Y.S.2d 851 (1949); McQuage v. City of New York, 285 App.Div. 249, 136 N.Y.S.2d 111 (1954). Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

songer_r_fiduc

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 "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. 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 New Britain on this theory. Interrogatory No. 50, which was filed early in the proceedings, is as follows: “Have you used any of the mechanisms embodying any of the six claims which were allowed in Patent No. 2,872,853 on any other machine other than the so-called Hoern & Dilts machines? If so, state upon what machines they have been used.” (Emphasis supplied.) The answer was: “No.” Both the original accounting and the “corrected accounting” were before the district court at the time the judgment was entered. We cannot say that the district judge erred in entering judgment upon the figures set forth in the original accounting as substantially verified by agreement of the parties, rather than accepting the “corrected accounting” based upon a belated change in New Britain’s contention which was contrary to the positions and conduct of the parties throughout the trial. 6) New Britain’s counterclaim As a part of its sworn accounting of January 28, 1964, New Britain asserted that it had reexamined the entire history of its operations under the 1955 contract in the light of the opinion of the district court, and found that it had made overpayments of royalties totaling $207,-193.36. On April 17, 1964, New Britain submitted a motion for leave to amend its answer and file a counterclaim in the amount of $207,193.36, which was denied by the district court. The complaint of Yeo et al. was filed March 30, 1960, and New Britain’s motion to amend its answer and file a counterclaim was not filed until April 17, 1964, after the prolonged trial had been completed and a decision on the merits adverse to New Britain had been announced by the district court. The record shows that at a hearing on March 16, 1962, Judge Picard inquired whether or not any counterclaim would be filed and that counsel for New Britain replied, “No counterclaim.” Under these circumstances we cannot say that the district court abused its discretion in denying New Britain’s motion to amend its answer and file a counterclaim so late in the proceedings. Shwab v. Doelz, 229 F.2d 749, 753 (C.A. 7); Runkle v. Nong Kimny, 105 U.S.App.D.C. 285, 266 F.2d 689, 693. 7) Case No. 16,211 In the second case New Britain sued 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. This action concededly is based upon the same contentions as outlined above with respect to its “corrected accounting” and counterclaim and seeks to recover identically the same amount as asserted in the counterclaim. Yeo et al. filed a motion to dismiss which was sustained by the district court. We hold that the right of action which New Britain undertakes to assert by its separate action in case No. 16,211 falls within the compulsory counterclaim provisions of Rule 13(a), Federal Rules of Civil Procedure. The claim: (1) arises out of the transaction or occurrence that is the subject matter of the claim of Yeo et al.; (2) was matured (at least in substantial part) and owned by New Britain at the time Yeo et al. served their complaint in case No. 16,287; (3) did not require for its adjudication the presence of third parties of whom the court could not acquire jurisdiction; and (4) was not, at the time the original action was commenced, the subject matter of another pending action. 1A Barron & Holtzoff, Federal Practice and Procedure, § 394 (Wright Ed.). “This rule is mandatory. It requires that such a counterclaim be pleaded and adjudicated or else all right of action thereon is foreclosed.” Ibid at p. 565. In Southern Construction Co. Inc. v. Pickard, 371 U.S. 57, 60, 83 S.Ct. 108, 110, 9 L.Ed.2d 31, the Supreme Court said: “The requirement that counterclaims arising out of the same transaction or occurrence as the opposing party’s claim ‘shall’ be stated in the pleadings was designed to prevent multiplicity of actions and to achieve resolution in a single lawsuit of all disputes arising out of common matters. The Rule was particularly directed against one who failed to assert a counterclaim in one action and then instituted a second action in which that counterclaim became the basis of the complaint. See, e. g., United States v. Eastport S. S. Corp., 2 Cir., 255 F.2d 795, 801-802.” Having failed to file a timely counterclaim in case No. 16,287 until after the district judge had announced his decision on the merits, New Britain is now foreclosed from asserting the same claim in the form of a separate action. Under the circumstances, we hold that the district court did not err in dismissing the complaint in case No. 16,211. New Britain relies upon Rule 13(f). We previously have held that the district court did not abuse its discretion in refusing to allow the filing of the counterclaim so late in the proceeding, even though earlier filing may have been due to “oversight, inadvertence or excusable neglect.” After having heard and disposed of this difficult and protracted case on its merits, the district court was not required to permit New Britain to re-litigate the case, either by a belated counterclaim or by a new and separate action. We affirm the judgment in case No. 16,287 and the order dismissing the complaint in case No. 16,211. . “1. Licensors, individually and collectively, agree to and do hereby grant unto The New Britain Machine Company, its successors and assigns, the exclusive right and license to manufacture, and sell said boring machines as aforesaid, including improvements thereto as shown, described and claimed in U. S. Patent Application Serial No. 642352, filed 19th day of January, 1946, and in said Patent Applications now in course of preparation, and agree to and do hereby grant to Licensee, its successors and assigns, the exclusive right and license to manufacture and sell machines under any Letters Patent owned or controlled by Li-censors, or either of them, which may be granted on applications now or hereafter filed, and disclosing improvements on or relating to said boring machines and similar machines. It is expressly understood by the parties hereto that Licensors do hereby grant an exclusive license to Licensee to manufacture and sell machines covered by this Agreement and that title to said Patent Application, applications now in course of preparation, and any future applications as well as the related patents, when granted, all remain the property of Licensors who retain all rights thereunder not granted to New Britain by this Agreement, including among other things the right to design, manufacture, use and sell the Chapman continuous turning machine now in production; and also special purpose machines, the functions of which are beyond the scope of the boring machine covered by this Agreement and which embody any or all the features incorporated in the machines of the type described on blue print T300 annexed hereto and made a part hereof or incorporate any of the patent and design features which are included in the Patent Application No. 642352 and said patent applications in course of preparation. Licensors further agree that if they develop said special purpose machines they will not license any other manufacturer to manufacture or sell said machines.” . “Licensors, individually and collectively, agree to disclose promptly to Licensee 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, and to render all possible assistance to Licensee in securing for Licensors, at Licensee’s option, patents or other protection on such inventions, designs, and methods and to grant and do thereby grant to Licensee licenses under such secured patents without further royalty payments by Licensee, the expense of such attempts at securing patents or other protection to be borne by Licensee.” . It is conceded that “the claims allowed in patent #2,872,853 (BY Machine) are not readable on Blue Print T-300.” . “WHEREAS, Licensors have been and now are developing Rotary-Cam Actuated Boring Machines, and certain improvements on said machines are shown, described and claimed in Applications for United States Patent, Serial Nos. 642,-352 and 671,477; and “WHEREAS, Licensors did on March 28, 1946, enter into a written agreement, with Licensee granting to Licensee the exclusive right and license to make and sell said Rotary-Cam Actuated Boring Machines, except for some rights retained by Licensors; and “WHEREAS, Licensors represent that except for the exclusive license of March 28, 1946, they have granted no other license in conflict with the license herein granted, and therefore have the right to grant an exclusive license to Licensee to manufacture and sell said Rotary-Cam Actuated Boring Machines, except as hereinafter provided; and “WHEREAS, Licensee is desirous of securing the exclusive right and license to manufacture and sell said Rotary-Cam Actuated Boring Machines, except as hereinafter provided, and Licensee is willing to pay for said exclusive right and license to manufacture and sell said Boring Machines; and “WHEREAS, Licensors are willing to assist Licensee in every way possible in the manufacture and sale of said Rotary-Cam Actuated Boring Machines, including adaptation and application of such machines to customers’ uses; and “WHEREAS, certain conditions have arisen which make it desirable for both parties that said agreement dated the 28th day of March, 1946, between the parties hereto, be amended by substituting therefor the Agreement herein set forth, “Now THEREFORE, in consideration of the premises and of the promises and agreements herein contained, IT IS AGREED between the parties hereto as follows: “1. Licensors individually and jointly agree to and do hereby grant unto Licensee, its successors and assigns, the exclusive right and 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, 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, and agree to, and do hereby grant to Licensee, its successors and assigns, the exclusive right and license to manufacture and sell machines under 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 except that Licensors reserve unto themselves the exclusive right to manufacture, use and sell the Chapman Continuous Turning Machines now in production, and further reserve rights sufficient to enable them to grant to Hoern & Dilts, Inc., a Michigan Corporation, of Saginaw, Michigan, its successors and assigns, a non-exclusive license to manufacture, use and sell Rotary-Cam Actuated Vertical Indexing Type Boring Machines. It is expressly understood by the parties hereto that Licensors do hereby grant an exclusive license to Licensee to manufacture and sell machines covered by this agreement, and that title to said Patent applications and any future apx>lications, as well as the related patents when granted, all remain the property of Licensors who retain all rights thereunder not granted to Licensee by this agreement. “A ‘Rotary-Cam Actuated Contour Type Boring Machine’ shall be considered, for purposes of this agreement, “I. As one having two rotary feed cams arranged to impart to a tool carrier either successive movements in directions at an angle to each other or a compound movement, which is a movement in a direction which is the resultant of movements simultaneously imxiarted to said tool carrier by said two rotary feed cams, and “2. As one having two rotary feed cams arranged to impart to a non-rotatable worlc piece, a simple movement in one direction and to a rotatable tool a movement at an angle to the direction of movement on said work piece. “A ‘Rotary-Cam Actuated Simple Type Boring Machine’ shall be considered, for purposes of this agreement, as one in which each tool carrier is acted upon by only one rotary feed cam and is given only a reciprocating movement or a movement in only one direction. II ■* * Hi “5. Licensors individually and jointly agree to disclose promptly to Licensee any improvements in rotary-cam actuated boring machines of the type herein licensed, made or invented by them, or either of them, and to render all possible assistance to Licensee in securing for Licensors, at Licensee’s option, patents or other protection on such inventions, designs, and methods, and to grant, and do hereby grant to Licensee, licenses under such secured patents, the same as under the applications and patents herein identified, without additional royalty payments by Licensee, the expense of such attempts at securing patents or other protection to be borne by Licensee.” . Paragraph 1(e) provides as follows: “(e) Licensor is the owner of the following United States of America Patent Applications which are now pending; to wit: "( * * *); “Serial No. 400,531 filed December 28, 1953, relating to milling and boring machines.” . “Non-exclusive Zúcense. — Licensor hereby gives and grants to Licensee a nonexclusive license for the life of all of its letters patent and patent rights and ail other rights in this paragraph (3) contained to manufacture, use and sell throughout the world machines embodying mechanisms covered by any and all of the said letters patent and patent rights or by any apxdications now prepared and un-filed, or filed and for which no number has been issued, or covered by any modifications, changes or improvements to any machines, tools, or accessories now owned or hereafter acquired by Licensor, or covered by any drawings, designs, or specifications relating to the so-called Hoern & Dilts machines, whether or not the subject of letters patent, including in such grant, without limiting the generality of the foregoing, but not limited to, the non-exclusive right to use any such mechanisms on any machines manufactured by Licensee, other than HOERN & DILTS machines; it being the intention of the parties hereto that Licensee shall have and hereby is acquiring a non-exclusive license for the life of the said letters patent and patent rights and all other rights in this paragraph (3) contained to manufacture, use and sell throughout the world and will pay royalties to Licensor upon any machines, tools or accessories embodying any of the mechanisms covered by any of the letters patent and patent lights or any other rights in this paragraph (3) contained which are now owned or may be subsequently acquired by Licensor under any applications for letters patent or under any engineering developments, designs, or specifications relating to the said HOERN & DILTS machines or any modifications, changes or improvements to any of the said HOERN & DILTS machines, whether or not the subject of letters patent.” (Emphasis supplied.) The term “letters patent and patent rights” as used in the above-quoted paragraph is identified in paragraph (1), which sets forth by number the various patents and patent applications owned by H & D Inc. Paragraph (1) concludes as follows: “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.’ ” . “(2) Special acknowledgement — Licen-sor hereby acknowledges that The New Britain Machine Company has an exclusive license from Joseph H. Hoern and Carl E. Dilts, as licensors, to manufacture, use and sell products throughout the world embodying mechanisms covered by Letters Patent No. 2,641,146 dated June 9, 1953, and Letters Patent No. 2,659,-961 dated November 24, 1953, as the same relate to non-indexing and non-continuous machines, and as more particular set forth in a certain agreement dated March 28, 1946, as amended October 25, 1950, to which contract reference is hereby made for greater certainty as to the contents thereof; and Licensor further acknowledges that it is not entitled to any royalties hereunder from Licensee for any non-indexing and non-continuous machines manufactured, used or sold embodying any mechanisms within the scope of the said agreement; and Licensor further acknowledges that nothing in this agreement contained shall in any manner affect the said agreement.” . “(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.” . As to any part of the claim that matured after sendee of the complaint of Yeo et al., New Britain’s remedy was first to have filed a timely counterclaim and thereafter to have filed supplemental pleadings. Rule 13(e), Federal Buies of Civil Procedure. . “(f) Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.” Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number. Answer:

songer_appel1_1_2

D

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". INTERNATIONAL CO. OF ST. LOUIS v. SLOAN et al. No. 2006. Circuit Court of Appeals, Tenth Circuit. July 12, 1940. Rehearing Denied Aug. 19, 1940. Writ of Certiorari Denied Nov. 12, 1940. See 61 S.Ct. 142, 85 L.Ed.-. William L. Mason, of St. Louis, Mo. (Mason & Flynn, of St. Louis, Mo., on the brief), for appellant. T. M. Lillard, of Topeka, Kan. (Lillard, Eidson & Lewis, of Topeka, Kan., on the brief), for appellee E. R. Sloan, receiver. George E. Brammer, of Des Moines, Iowa (Joseph I. Brody, Clyde B. Charlton and Louis A. Parker, all of Des Moines, Iowa, on the brief), for appellee Occidental Life Ins. Co. Before BRATTON, HUXMAN, and WILLIAMS, Circuit Judges. BRATTON, Circuit Judge. International Company of St. Louis, hereinafter called claimant, feels aggrieved at the action taken on its claim filed in this proceeding in receivership. The material facts are not in controversy. The Federal Reserve Life Insurance Company, organized under the laws of Kansas, hereinafter called Federal Reserve, was engaged in the life insurance business in Kansas, Missouri, and Indiana; Insurance Investment Corporation, having its principal place of business in Saint Louis, Missouri, was engaged in the business of buying and selling and otherwise dealing in stocks of insurance companies; and Reserve Company, with its principal place of business in Kansas City, Missouri, was likewise engaged in the business of buying and selling and otherwise dealing in stocks of insurance companies. In 1929 Federal Reserve had outstanding 30,000 shares of capital stock of the par value of $10 each, of which Insurance Investment Corporation and Reserve Company owned 5,683 and 8,800 shares, respectively. During that year the Insurance Commissioner of Kansas examined the affairs of Federal Reserve and made a report in which its financial condition was criticized and an impairment of capital and reserves was asserted. To meet that situation, Insurance Investment Corporation made an agreement with Fire Insurance Company of Chicago to advance to Federal Reserve, on behalf of Fire Insurance Company, $300,000 and to take therefor a participating certificate, and to sell to Fire Insurance Company a majority of the outstanding shares of 'stock of the Federal Reserve. Pursuant to such agreement, Insurance Investment Corporation, on November 18, 1929, advanced to Federal Reserve $300,000 and received therefor the participating certificate which contained these provisions: “For Value Received, The Federal Reserve Life Insurance Company, a Kansas Corporation (hereinafter called the ‘Company’) hereby promises to pay to Insurance Investment Corporation, a Delaware corporation, or its assigns, the sum of Three Hundred Thousand Dollars ($300,-000.00) together with interest thereon from the date hereof at the rate of six per cent (6%) per annum, payable semi-annually, out of a fund to be created by the company setting aside semi-annually on the 30th day of June and the 31st day of December, all net surplus gains in excess of Fifty Thousand Dollars ($50,000.00) until all principal and interest due under this obligation is fully paid. Net surplus gains in excess of Fifty Thousand Dollars ($50,000.00) shall mean that if at any time the Company has a net free surplus of Fifty Thousand Dollars ($50,000.00) that all moneys in excess of that sum shall be paid into the fund above specified. “The obligation of the Company hereunder is a contingent liability, not an absolute promise to pay, but is limited to its firm obligation and covenant to apply the said surplus gains to the making of the payments herein provided for and is not an obligation to be paid out of the general assets of the Company. other than the fund mentioned in this certificate.” “In the event of a reinsurance of the business of The Federal Life Insurance Company the reinsuring company shall be bound each six (6) months to pay the savings and profits arising out of the rein-sured business (less such part of such savings and profits as may be payable under prior contracts to other persons or corporations) to the then holder or holders of this certificate or any certificate or certificates issued in lieu of this certificate until the full balance of interest and principal due thereon shall have been paid.” . On the same day, and for a valuable consideration, Insurance Investment Corporation assigned and delivered such certificate to Fire Insurance Company, and also assigned and delivered, or caused to be assigned and delivered, to Fire Insurance Company, 15,100 shares of the capital stock of Federal Reserve, including its own shares and those held by Reserve 'Company. Claimant subsequently acquired and owns the certificate, on which no part of the principal or interest has been paid. In 1935, a stockholder and policyholder of Federal Reserve instituted this proceeding in equity in the United States Court for Kansas and prayed for the appointment of a liquidating receiver. The receiver and Occidental Life Insurance Company, hereinafter called Occidental, entered into a contract dated June 13, 1936, which provided among other things that, subject to the terms and conditions therein specified, and not otherwise, Occidental should reinsure and assume the liability of Federal Reserve under its contracts of insurance which were in force and effect on May 22; that coincident with the approval of the contract, title to all of the assets of Federal Reserve should vest in Occidental; that since such assets at their then value were insufficient in amount to cover the reserve liabilities, a lien of fifty per cent of the net equity should be placed against each policy thus reinsured, with provision that the lien should be adjusted at the times and in the manner therein specified, but in no event should it exceed fifty per cent of such net equity; that all assets conveyed, together with all net gains and profits from the business reinsured and from the assets administered by Occidental, should be covered into a separate fund called Federal Reserve Fund; that such fund should be kept in a separate bank account or accounts and that no investment should be acquired with such fund except with the consent and approval of the court ; and that Occidental should furnish the court an annual accounting of such fund as long as the lien should exist against the policies, but in no event after June ,30, 1951. At no time subsequent to the execution and delivery of the certificate did the books and records of Federal Reserve, or reports or statements published or filed with the insurance department of any state in which it was licensed to do business, show or include such certificate as a liability. Occidental had knowledge at the time of the execution of the contract of the existence of such certificate and of claimant’s asserted ownership of it. The court approved the contract and authorized its consummation. Occidental assumed its liability under the contracts of insurance; the receiver transferred, conveyed and delivered the assets to Occidental; the special fund was created; and the contract has been carried out according to its terms. With the money advanced by Insurance Investment Corporation, in the manner outlined, Federal Reserve purchased from a bank a certificate of deposit which was deposited with the Commissioner of Insurance of Indiana as a part of its reserve supporting its' outstanding policies of insurance in that state. A substantial part of the money was subsequently loanedj the notes and mortgages received therefor were deposited with the Commissioner of Insurance of Indiana, and they subsequently became a part of Federal Reserve Fund. On May 22, 1936, the total amount of required reserve on all policies issued or assumed by Federal Reserve exceeded $7,-500,000, and according to an appraisement made after the approval of the contract, the value of all its assets as of that date was $5,115,738.68. The lien imposed against the net equities of the policies assumed by Occidental, as of such date, amounted to $2,718,120.72; after the application of such lien, the surplus funds amounted to $172,511.67; by order of the court such surplus, or such part of it as might be necessary, was reserved for the payment of receivership expenses; and the expenses of the receivership to December 31, 1938, amounting to $157,896.55, were paid by the receiver with funds furnished to him from the Federal Reserve Fund. Claimant pleaded upon information and belief that profits arising out of the rein-sured business of Federal Reserve in excess of $200,000 had accrued and that profits were constantly and continuously accruing; and it prayed that it be adjudged entitled to a lien upon all such profits superior to that of the policyholders or other parties to the suit. The court disallowed the claim, and the appeal is from that judgment. The parties discuss at length many questions, but it is unnecessary to consider all of them. It was held on a prior appeal in this case that upon the adjudication of insolvency and the appointment of a receiver, the outstanding policies of Federal Reserve were terminated as enforceable obligations for their respective face amounts; that the holders became creditors with the right to participate pro rata in the assets in receivership, but had no other right; and that the effect of the reinsurance agreement was that with the assets in the hands of the receiver, the policyholders acquired new insurance protection which came from Occidental. Hobbs v. Occidental Life Ins. Co., 10 Cir., 87 F.2d 380. In other words, Occidental acquired from the receiver only the assets in his hands, not the policies as binding obligations of insurance for their respective face amounts. Claimant does not assert a lien upon all of the assets which the receiver transferred and conveyed to Occidental. It merely contends that it is entitled to a lien upon the gains'and profits of the reinsured business which have accrued under the management of Occidental. It is a rule of universal acceptation that where a contract is ambiguous or doubtful the intention of the parties is of primary importance in determining their rights. And in the ascertainment of such intention the language of the contract, the background against which it was entered into, and the interpretation which the parties placed upon it’ should be taken into account and given great weight. Federal Reserve was in serious financial difficulty. An examination of its affairs resulted in an official report which asserted impairment of its capital and reserve. The situation was critical. Correction was imperative. The condition could not be corrected by borrowing money if it immediately became a liability. To make the essential repair in the capital and reserve structure it was necessary to have new money in the business without a corresponding liability. There was cause for concern on the part of the stockholders.,, There was motive for them to lend aid. Insurance Investment Corporation, a stockholder, made arrangement to secure $300,000 in money which was to be used and was immediately used to increase the reserve for outstanding policies. But no reference to the certificate, as a liability was made on the books and records or in any subsequent report or publication of Federal Reserve, and it is not suggested that the owner of the certificate objected to such omission at any time during the seven years intermediate the date of the certificate and receivership. The facts and circumstances leading up to and attending the transaction, and the omission of reference to the certificate in the books, records, reports and publications, show clearly and convincingly that it was the intention of the parties that the money should go into the capital and surplus structure of the company, should become subject to the risks and hazards of the business, and should be repaid only in the event there were net gains and profits. The effect of the transaction was to create a relationship between the owner of the certificate and the holders of policies and other creditors substantially analogous to that ordinarily existing between a preferred stockholder and creditors. Hamlin v. Toledo, St. L. & K. C. R. Co., 6 Cir., 78 F. 664, 36 L.R.A. 826; In re Lathrap, 9 Cir., 61 F.2d 37. But claimant'relies strongly upon the language contained in the certificate. It insists that the instrument textually gives it a lien upon the gains and profits which have accrued to the business since Occidental assumed its management. The certificate was addressed to the rights of the parties in three separate and distinct factual situations. The first contemplated a continuation of business on the part of the obligor, and provided that all surplus gains in excess of $50,000 should be paid semi-annually to the holder until the obligation was liquidated in its entirety. That provision indicates a clear purpose to provide that the certificate should constitute a special obligation payable only in the event the company should continue the business and net surplus should accrue. The second contemplated financial difficulty on the part of the obligor, but it’s continuation of the business. It provided that the liability was contingent, not an absolute promise to pay, and was limited to the application of the surplus gains from the special fund referred to, and that the general, assets should not be liable. The third contemplated a discontinuance of the business of the obli-gor, and is the provision to which claimant points with- emphasis. It contemplated a reinsurance of the business, and provided that the reinsuring company should be bound to pay to the holder of the certificate, or any certificate or certificates issued in lieu thereof, the savings and profits arising from the reinsured business, less such part thereof as might be payable under prior contracts to other persons or corporations. It is stipulated that the “prior contracts to other persons or corporations” referred to a participating certificate which Federal Reserve issued to Farmers National Insurance Company of America, of Huntington, Indiana, in 1928, on which the unpaid balance as of May 22, 1936, was in excess of $200,000. But the entire instrument, the purpose for which it was executed, the circumstances attending, surrounding and following its execution, all considered in composite and each given due weight, are strongly indicative of an intent and purpose that this provision should have reference to a voluntary reinsurance of the business. This particular provision, as well as the entire instrument, was silent in respect of the reinsurance of the business in connection with a transfer and conveyance of the assets of Federal Reserve by judicial proceedings. Here the assets passed to Occidental by operation of law, not by mutual consent of the two insurance companies. Gazlay v. Williams, 210 U.S. 41, 28 S.Ct. 687, 52 L.Ed. 950. We think it is clear that the provision has no application whatever to a so-called reinsurance made in such circumstances. The sale and transfer of the assets under order of the court in the receivership proceeding was equivalent in law to a foreclosure of the paramount lien or interest of the policyholders. Since the only right which claimant had was analogous or akin to that of a preferred stockholder, such foreclosure extinguished any claim on its part to the gains and profits thereafter accruing to the business under the ownership and operation of Occidental. The judgment is affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:

songer_casetyp1_7-3-6

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 - property disputes". UNITED STATES ex rel. NEW YORK WAREHOUSE, WHARF & TERMINAL ASS’N, Inc., et al. v. DERN, Secretary of War. No. 5987. Court of Appeals of the District of Columbia. Argued Dec. 4, 1933. Decided Jan. 2, 1934. John Philip Hill, Francis W. Hill, Jr., and Robert F. Cogswell, all of Washington, D. C., and Harper A. Holt, of New York City, for appellants. Leo A. Rober, U. S. Atty., and John J. Wilson, Asst. U. S. Atty., both of Washing-, ton, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices. ROBB, Associate Justice. Appeal from a judgment in the Supreme Court of the District dismissing appellants’ petition for a writ of mandamus to eompel the Secretary of War (1) to cancel lease agreements made between the Secretary and the Mercur Trading Corporation, as lessee; (2) to eject the corporation from the leased property; and (3) to desist from the commercial operation of the premises. The material facts stated in the petition are as follows: In 1918 the United States purchased property (approximately 136 aeres) commonly called the Port Newark Army Supply Base, and constructed thereon extensive warehouses as a terminal storage space for the handling of large quantities of supplies in and around the port of New York en route overseas to the American Expeditionary Forees. Appellants are corporations organized under the laws of the state of Now York, and own and operate extensive warehouses and piers in the vicinity of the supply base, which was leased by the government to the Mercur Corporation. Appellants are engaged in the operation of docks, wharfs, and storehouses, the business in which the Mercur Corporation is engaged, and are therefore in direet competition. The Mercur Corporation, because of the advantageous provisions of the lease agreements, is able to underbid appellants, which agreements it is averred are not lawful, in that the same were not concluded by the President, through the Secretary of War; and for other reasons not necessary to be stated. The original lease to the Mercur Corporation, dated November 30, 1926, and covering a period of ten years, recites that “it is in the interest of the United States to lease the premises known as the Port Newark Army Supply Base,” and that the lease is made under the authority conferred by the act of July 11,1919 (chapter 8, 41 Stat. .104, 129, 10 USCA § 1263), which authorized the President “through the head of any executive department, upon terms and conditions considered advisable by him or such head of department, to sell or lease real property or any interest therein or appurtenant thereto acquired by the United States of America since April 6, 1917, for storage purposes for the use of the Army, which in the judgment of the President or the head of such department is no longer needed for use by the United States of America, and to execute and deliver in the name of the United States and in its behalf any and all contracts, conveyances, or other instruments necessary to effectuate any such sale or lease.” Five supplementary lease agreements were subsequently executed (three in 1927, one in 1928, and one in 1930). The Mercur Corporation was authorized to occupy the leased premises “for terminal, storage warehouse, and/or manufacturing purposes,” with the right to sublet such portion or portions of the property as the lessee might desire. The demurrer interposed to the petition was sustained, and, appellants electing to stand on the petition, final judgment was entered. The first question that arises is whether appellants have a sufficient legal interest in the subject-matter involved as to entitle them to maintain this proceeding. They do not claim to have any interest in the leased property. Their complaint is that the lessee, the Mercur Corporation, their competitor in business, has gained an undue advantage because of the challenged lease agreements. In United States ex rel. Alsop Process Co. v. Wilson, 33 App. D. C. 472, a mandamus proceeding, the relator was a manufacturer of flour bleaching machinery, and sought to compel the Secretary of Agriculture to cancel'an alleged illegal decision to the effect that bleached flour was an adulterated product under the Food and Drug Act. We said (page 478 of 33 App. D. C.) : “Neither the relator' nor its process is mentioned in this decision. The relator is neither the owner nor .the manufacturer of bleached flour. Its sole exeuse for attempting to stay the hand of the Secretary is that, since the promulgation of this decision by the Secretary, it has been unable to sell its patented process and apparatus, owing to the fear of prospective purchasers that, upon the recommendation of the Secretary, they will be prosecuted for manufacturing or selling an adulterated food product.” We further pointed out that the relator as a corporate entity had no interest in the enforcement of duties owing by the Secretary to the publie; that it sought to arrest the operations of an executive department solely because the indirect effect of the promulgation of an opinion by the head of that department had been to cause millers to cease purchasing relator’s machinery; that, relator being neither an owner nor a manufacturer of bleached flour, its legal rights were not involved nor invaded by the action of the Secretary; and that it was a mere volunteer in the proceeding and, as such, without standing. Union Pacific R. R. Co. v. Hall, 91 U. S. 343, 354, 23 L. Ed. 428, and Board of Liquidation v. McComb, 92 U. S. 531, 23 L. Ed. 623, were relied upon by the relator, as they are in the present case. We pointed out that in the Hall Case it was held that merchants in Iowa, having frequent occasion to receive and ship goods over the' Union Pacific Eailroad, might, without the intervention of the Attorney General of the United States, institute a proceeding under an act of Congress which conferred upon the proper circuit court of the United States jurisdiction to hear and determine all eases of mandamus to compel the railroad company to operate its road as required by law. Failure of the railroad company in that regard brought a direct injury to the merchants who were permitted to institute the proceeding. The court went no further than to hold that the writ of mandamus may be issued at the instance of a private relator in all eases “where the defendant owes a duty, in the performance of which the prosecutor has a peculiar interest.” In the MeComb Case the relator -was a holder of bonds direetly affected by the funding act, the carrying out of which he sought to have restrained. In United States ex rel. American Silver Producers’ Ass’n v. Mellon, 59 App. D. C. 24, 32 F.(2d) 415, we again ruled that a corporation or an individual to maintain a mandamus action must have a personal and direct interest in the subject-matter of the litigation, and not merely an indirect or remote interest. In Massachusetts v. Mellon, 262 U. S. 447, 43 S. Ct. 597, 67 L. Ed. 1078, the court ruled that, to invoke the judicial power to disregard a statute as unconstitutional, the party who assails it must show not only that the statute is invalid, but that he has sustained, or is immediately in danger of sustaining, some direct injury as a result of its enforcement. Tested by the rule dedueible from the authorities to which we have alluded, appellants are without standing in this proceeding. Their interest is not personal and direct, but indirect and remote. The act of July 11, 1919 (10 USCA § 1263), authorized the President, “through the head of any executive department, npon terms and conditions considered advisable by him or such 'head of department, to sell or lease real property or any interest therein or appurtenant thereto acquired by the United States of America since April 6, 1917. * * “* ” This statute, therefore, authorized the selling or leasing of the real property within its scope. If appellants’ contention as to interest is sound, it necessarily would follow'that any and all rival manufacturers, in the event of sale or lease to a manufacturer, would have such an interest as to entitle them through mandamus proceedings to challenge the validity of the sale or lease. Sueh a result is not to bo seriously entertained. Without considering other questions suggested by appellee, we affirm the judgment. Affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation - property disputes"? A. disputes over real property (private) B. eminent domain and disputes with government over real property C. landlord - tenant disputes D. government seizure of property - as part of enforcement of criminal statutes E. government seizure of property - civil (e.g., for deliquent taxes, liens) Answer:

sc_decisiondirection

B

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. UNITED STATES v. CONTINENTAL OIL CO. No. 834. Decided May 4, 1964. Solicitor General Cox, Assistant Attorney General Orrick and Robert B. Hummel for the United States. David T. Searls and A. T. Seymour for appellee. Per Curiam. The judgment is vacated and the case is remanded to the United States District Court for the District of New Mexico for a trial on the merits of the case. Poller v. Columbia Broadcasting System, Inc., 368 U. S. 464. Separate Memorandum of Mr. Justice Harlan. This is an appeal by the Government in an antitrust case wherein the District Court entered summary judgment in favor of the defendant-appellee without opinion, findings of fact, or conclusions of law of any kind. The case is here on a typewritten record of some 2,000 pages, consisting of pleadings, briefs, depositions, exhibits, and the transcript of a pretrial conference. The district judge is now deceased. The Court vacates the judgment below and remands the case for trial. Short of its being the law that the summary judgment procedure is wholly unavailable in a government antitrust case — a holding not before nor, as I understand matters, now made — I am unable to say that summary judgment was improvidently granted in this instance without making an examination of the entire record; certainly this disposition should not be made simply on the basis of the Government’s statements that triable issues of fact exist. To examine this large record without any illumination by the court below would place an intolerable burden on this Court. In these circumstances I believe that the proper course is to vacate the judgment below and remand the case to the District Court, with leave to the defendant to renew its motion for summary judgment before another district judge. The Court’s action, which deprives the defendant of that opportunity, seems to me unwarranted. If summary judgment were again granted, the District Court would be expected to furnish a statement of its reasons, including such findings of fact and conclusions of law as might be appropriate. Cf. United States v. El Paso Natural Gas Co., 376 U. S. 651, 662 (concurring-dissenting opinion of Harlan, J.). Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspecifiable Answer: