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lawma-instructions_llama3_16k

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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. UNITED STATES of America, Plaintiff-Appellee, v. Fred LAMBERT, Defendant-Appellant. No. 71-3453. United States Court of Appeals, Fifth Circuit. Dec. 15, 1972. Rehearing En Banc Granted April 17,1973. Thomas C. MacDonald, Jr., (court appointed), Tampa, Fla., for defendant-appellant. John L. Briggs, U. S. Atty., Jacksonville, Fla., Bernard H. Dempsey, Jr., Claude H. Tison, Jr., Asst. U. S. Attys., Tampa, Fla., for plaintiff-appellee. Before JOHN R. BROWN, Chief Judge, TUTTLE and INGRAHAM, Circuit Judges. TUTTLE, Circuit Judge: This appeal involves the question of the applicability of 18 U.S.C. § 1001, which makes it a crime knowingly and willfully to make a false statement in any matter within the jurisdiction of any department or agency of the United States, to statements made to the Federal Bureau of Investigation (hereafter FBI). Appellant Lambert was convicted under this statute and sentenced to two years imprisonment. He appeals from his conviction, contending, among other things, that there was a fatal variance between what the indictment alleged and what was actually proved at trial, and that, in any event, he could not be convicted under this particular statute inasmuch as it has no applicability to statements made to the FBI. We reverse. The case stems from Lambert’s arrest by the Tampa police in the early morning hours of July 31, 1971. What transpired thereafter was the subject of considerable testimony at the trial, but because of the view we take of the case we find it unnecessary to trace in detail the factual circumstances of the arrest. Suffice it to say that Lambert apparently resisted arrest and, either fell or was knocked down; he sustained a broken nose, bruises on his face, and various cuts and abrasions claimed to have been at the hands of the arresting officers who admitted to having struck Lambert with what they called “slapjacks.” Several days later, upon the advice of a friend, Lambert went to the Tampa office of the FBI and filed a written statement in which he purported to recount the events surrounding his arrest, stating that he had been subjected to abusive treatment by the two plain clothes detectives who had arrested him. In his statement to the FBI, insofar as it is pertinent, he averred: “When I came to 218 Beach Place I started to walk into the driveway, at which time the man who had been following me came up to me, showed a badge, and said he was a detective and I was under arrest. I said, ‘You can’t hold me. I haven’t done anything.’ The man then threw me to the pavement, and was joined by another man who said he was a detective. The second man was white, in his 40’s, about 5'11", about 180 lbs., wearing sport shirt and pants. The second man put handcuffs on me and began to twist on the handcuffs so that I was in much pain. “The two men picked me up and placed me in a car that was up the street a short way. I cannot describe the car. I was placed in the back seat. I tried to open the door to get out, at which time both men hit me with slapjacks on the head, face and arms. I was hit many times. I began to bleed from the nose and I was in much pain.” He stated that he was then taken to a hospital for treatment, following which he was “placed in a police wagon and was taken to the Tampa Police Department jail” where he was booked. He concluded his signed statement with the following comment: “I feel that my civil rights have been violated because I was arrested for no reason by two men in plain clothes. The two men fractured and lacerated my nose, as well as injuring my eyes and arms. In view of my condition, I feel that I should have been permitted to stay in the hospital and not have been taken to the police jail to be booked. I feel that my rights were violated by the two men who identified themselves to me as detectives, names unknown to me.” Thereafter, the FBI conducted an investigation, which, it asserts, consumed some “thirty man hours”, and concluded that Lambert’s averment that he had been deprived of his civil rights was untrue and that his statement was false in material respects. As a consequence an indictment was returned against Lambert charging a violation of 18 U.S.C. § 1001 which provides: “Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.” More specifically the indictment charged as follows: “. . . FRED LAMBERT knowingly and wilfully did make and cause to be made a false, fictitious and fraudulent representation as to material facts in a matter within the jurisdiction of the Department of Justice, Federal Bureau of Investigation, an agency of the United States, in that in a written statement signed by the defendant and witnessed by Special Agent John Edward Hegerty, Federal Bureau of Investigation, submitted to the Federal Bureau of Investigation, Fred Lambert stated and represented that he had been severely beaten and subjected to illegal and unnecessary punishment by two members of the Tampa Police Department, Tampa, Florida, in violation of his Civil Rights, where in truth and in fact, as he then knew, he had not been severely beaten and he had not been subjected to illegal and unnecessary punishment and his Civil Rights had not been violated by the two members of the Tampa Police Department. . . .” It is readily apparent that the indictment did not contain the exact words used in Lambert’s statement, and thus failed to charge that the precise statements made by Lambert were false. After the statement had been introduced in evidence and the case was concluded, Lambert accordingly made a motion for judgment of acquittal on the ground that there was a fatal variance between the indictment and the proof. The motion was denied and the jury returned a verdict finding Lambert guilty of the offense as charged. Having reviewed the record, we must conclude that if the indictment had specifically pinpointed the statements that were charged to be false, there is little doubt that the jury would have had adequate evidence upon which to find that Lambert had in fact made false statements to the FBI. However, the indictment did not pinpoint the alleged false statements and this fact gives rise to Lambert’s first point on appeal, i. e., that the trial court erred in not dismissing the prosecution on the ground that whereas the indictment charged Lambert with having falsely stated and represented that the Tampa police officers had “severely beaten” him and subjected him to “illegal and unnecessary punishment”, the actual statement made by Lambert to the FBI, which was introduced in evidence and as to which there is no dispute, mentioned neither a severe beating nor illegal and unnecessary punishment. The government contends, however, that Lambert’s statements assuredly describe a “severe beating” and “illegal and unnecessary punishment.” This may well be, but appellant contends that the argument is irrelevant, for one thing, because in a criminal prosecution the jury ought not be left to ponder such interpretative leaps, and for a second thing, and more importantly, because some of the events described in appellant’s statement actually occurred. It is noted that appellant, in his statement, made six factual averments relating to physical contact. They were: 1) “The man threw me to the pavement . . . ” 2) “This second man put handcuffs on me . . 3) “[The second man] began to twist on the handcuffs . . . ” 4) “Both men hit me with slapjacks on the head, face, and arms.” 5) “I was hit many times.” 6) “The two men fractured and lacerated my nose as well as injuring my eyes and arms.” Of these several statements it is undisputed that the arresting officers wrestled Lambert to the ground and put handcuffs on him (Numbers 1 and 2). It is further undisputed that each of the police officers struck Lambert at least once with a slapjack and that on one occasion the blow from a slapjack glanced off Lambert’s leg and struck him alongside the head (Number 5 and part of Number 4). Nonetheless, the indictment, as phrased, channeled the jury into deciding, not whether some or all of Lambert’s specific averments to the FBI were false (which is the appropriate standard for conviction under this particular statute), but whether the treatment which Lambert received at the hands of the police amounted to a “severe beating” or “illegal and unnecessary punishment.” Of course, that is not what the prosecution was about. We think that in cases such as this, where the issue is whether false statements were made to a governmental agency, it is inappropriate for the prosecutor to put words into the accused’s mouth and to try him, not for what he actually said, but for what the prosecuting attorney says he said. However, we find it unnecessary to decide whether there was such a fatal variance between the indictment and proof as to require a dismissal of the indictment for we are of the view that this indictment must be dismissed for a more fundamental reason. It is our conclusion that 18 U.S.C.A. § 1001, which forms the basis for the conviction here at issue, is not applicable to such statements made by a private citizen to the FBI. In recent years this issue has been the subject of considerable controversy, with cases on both sides of the issue. However, we are inclined to follow the views announced by the Court of Appeals for the Eighth Circuit which, in Friedman v. United States, 374 F.2d 363, 369 (CA 8, 1967), held on facts similar to the ones before us that Section 1001 has no application “where a statement is given to the FBI merely for the purpose of instigating an investigation into the possibility of a violation of the criminal law .” The court’s rationale was that such a statement is not a “matter within the jurisdiction” of the FBI, as that term is used in the statute, because the term “jurisdiction” means something more than the power to investigate; the FBI has no inherent power to grant the relief sought. The court noted that “[n]o one would deny the Government’s right under the statute to protect itself from fraudulent claims and from those who are seeking the grant of governmental privileges under false assertions. When the false statement is made to the agency with the power to allow the privilege or grant the award, jurisdiction of the agency is established so as to warrant a prosecution under § 1001.” But, inasmuch as the FBI has no power “to adjudicate rights, establish binding regulations, compel the action or finally dispose of the problem giving rise to the inquiry” it does not exercise “jurisdiction” over the matter sought to be investigated. Therefore, the court concluded, an indictment does not charge a violation of 18 U.S.C.A. § 1001 when it charges the giving of false information to the FBI relative to a violation of the criminal law. We are not unmindful of the countervailing authority from the Second Circuit. In United States v. Adler, 380 F. 2d 917 (CA 2, 1967) that court explicitly rejected the Friedman rationale and held that the term “jurisdiction” should be given a broad and non-technical meaning. Counsel for the government urges that this view of the statute was subsequently confirmed by the Supreme Court in Bryson v. United States, 396 U.S. 64, 70, 90 S.Ct. 355, 359, 24 L.Ed.2d 264 (1969) in which the court held, in a case involving the National Labor Relations Board, that “[b]ecause there is a valid legislative interest in protecting the integrity of official inquiries [citations omitted], we think the term ‘jurisdiction’ should not be given a narrow or technical meaning for purposes of § 1001.” The court cited the Adler case for that proposition and relegated Friedman to a footnote in which it said: “We have no occasion in the present context either to approve or disapprove Friedman’s holding.” To this point we have considered at some length the niceties of statutory construction, but the underlying question here is whether this statute in all instances is to be read and applied literally. The Adler case implies that it should be, but such a view, in our opinion, is contrary to the weight of authority and, perhaps more important, is at odds with the purpose and intent of this piece of criminal legislation. It is noted that we are dealing with a very broad statute. Were it to be applied in every situation consonant with its literal wording any individual who passed on to a governmental agency the most trivial bit of misinformation would be criminally liable for his statement. Indeed, not only would he be criminally liable, but he would be subject to severe punitive sanctions, more severe, in fact, than those attaching to perjury. Of course, it might be argued that a “trivial” falsehood would not fall within the purview of this statute. However, as to “false, fictitious, or fraudulent statements or representations” generally (the provision under which Lambert was indicted) the statute on its face contains no requirement of materiality. Courts have had to read this requirement into it, thus construing it in a manner different than in accord with its literal language. Brethauer v. United States, 333 F.2d 302 (CA 8, 1964). Moreover, this court and others have refused to apply the statute, though literally it would apply, to cases involving what has come to be known as the “exculpatory no.” See Paternostro v. United States, 311 F.2d 298 (CA 5, 1962) and cases cited therein. In such instances it has been held that where an individual falsely denies the truth of questions submitted to him by government agents, such responses are not “statements” or “representations” within the meaning of Section 1001 and therefore are not subject to criminal prosecution under it. Of course, literally such an answer would be within the statute, for it contains no exception for the “exculpatory no.”' The Paternostro principle was taken a step further by the Court of Appeals for the Ninth Circuit in United States v. Bedore, 455 F.2d 1109 (CA 9, 1972) which held that the giving of a false name to a special agent of the FBI was, like the exculpatory no, not a statement for purposes of Section 1001. The court said: “The statute was not intended to embrace oral, unsworn statements, unrelated to any claim of the declarant to a privilege from the United States or to a claim against the United States, given in response to inquiries initiated by a federal agency or department, except, perhaps, where such a statement will substantially impair the basic functions entrusted by law to that agency.” 455 F.2d at 1111. (emphasis added). Of course, the foregoing cases, involving statements made in response to inquiries by a criminal investigatory agency, do not directly control the disposition of the case before us in which the individual volunteered his complaint to the FBI. However, they serve to illustrate the fact that the courts have been reluctant to apply this harsh and rigorous penal statute literally where to do so would not comport with what must have been Congress’ purpose and intent in enacting the statute. Our view that this criminal provision does not apply to statements such as Lambert’s made to the FBI we think is fully consonant with the legislative intent. However, inasmuch as the legislative history of this particular statute has been set forth in detail by the Supreme Court in United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955) and United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598 (1941) we do not here undertake to repeat it at length. We note only that the statute which, in various forms, has been on the books for more than 100 years was originally designed to protect governmental agencies from fraudulent monetary claims. The statute was amended in 1934 and again in 1948 (to its present form) in order to eliminate the restriction of its scope to situations involving pecuniary or property loss to the government. As to the alteration with which we are concerned in this case the Supreme Court said: “The amendment eliminated the words ‘cheating and swindling’ and broadened the provision so as to leave no adequate basis for the limited construction which had previously obtained.. The statute was made to embrace false and fraudulent statements or representations where these were knowingly and willfully used in documents of affidavits ‘in any matter within the jurisdiction of any department or agency of the United States.’ In this, there was no restriction to cases involving pecuniary or property loss to the government. The amendment indicated the congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described.” United States v. Gilliland, supra at 93, 61 S.Ct. at 522. (emphasis added) In summary, then, it may fairly be said that running through this legislation is the congressional purpose not only to protect the government against false pecuniary claims, but, as well, to protect governmental agencies from perversion of their normal functioning. Clearly Lambert’s statement to the FBI did not comprehend a pecuniary claim against the government. The question then is whether his allegedly falsified report in any sense perverted the normal functioning of the FBI. We think not. Indeed when appellant went into the Tampa office of the FBI, he went to ask that agency to do what it normally does, that is, to investigate. The normal function of the FBI was to ascertain whether Lambert’s statements were true or false and the mere fact that they were, upon investigation, found to be false does not mean, ipso facto, that they worked a perversion of the FBI’s regular business. In reaching this decision we have been influenced to an extent by the important national policy of preserving an open line of communications between private citizens and law enforcement agencies. We do not wholly agree with the conclusion of the court in Adler that “individuals acting innocently and in good faith, will not be deterred from voluntarily giving information or making complaints to the FBI.” 380 F.2d at 922. Moreover, law enforcement efforts may frequently be enhanced by taking affirmative action based on statements on the periphery of truthfulness, or as it were, containing a part truth. As the court in Friedman said: “To construe this statute to embrace individuals who volunteer un-sworn information to the police, even though the information is proved false, we fear would to a degree dry up a prime source of truthful information. When the specter of criminal prosecution hangs over the head of every citizen who reports suspected violations, individuals will naturally hesitate, or even refuse, to provide vital information. They will fear that should their information appear to be false to the police they may be called upon to defend themselves in a criminal prosecution.” 374 F.2d at 369. We are all familiar with the possibilities that arise when an individual makes a complaint concerning law enforcement officers (local or national). He is often met with a difficult or impossible burden of proof. If feelings run high, the ones complained against may feel strong enough of their position to seek an indictment under such a statute as this. Need we speculate on the chilling effect of such punitive possibilities on even the person who is honest and acting in good faith ? We conclude that 18 U.S.C.A. § 1001 has no application to the facts of this case. No crime having been charged, appellant is entitled to a judgment of acquittal. The judgment accordingly is reversed and the case is remanded to the district court with instructions to dismiss the indictment. ON COURT’S OWN MOTION Before JOHN R. BROWN, Chief Judge, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges. BY THE COURT: A majority of the Judges in active service, on the Court’s own motion, having determined to have this case reheard en banc, It is ordered that this cause shall be reheard by the Court en banc on briefs without oral argument. The Clerk will specify a briefing schedule for the filing of supplemental briefs. . This footnoted comment, of course, indicates that the ratio deeidendi of Friedman was never at issue in the Bryson case. We reject the government’s suggestion that Bryson should be read as an implicit, if not explicit, disavowal of the Friedman holding. . Section 1001 provides for a fine of $10,000, five years imprisonment, or both for the making of a false, un-sworn statement. The analogous statute for perjury (18 U.S.C.A. § 1021) provides a maximum penalty of $2,000, five years imprisonment, or both. . We limit our attention to the 1934 amendment which added the proscription against false or fraudulent statements. The 1948 amendment merely effected a housekeeping change which did not substantively alter the 1934 version insofar as it related to false statements. See United States v. Bramblett, supra. . Though we do not so decide, we note that in this context the FBI might not be an “agency” for purposes of Section 1001. Section 6 of Title 18 U.S.C.A., which contains the definition of “agency” as that word is used in the criminal provisions of Title 18, provides: “The term ‘agency’ includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, imless the eon- text shows that such term was intended to he used in a more limited sense.” (emphasis added) Since a primary function of the FBI is to investigate the truth or falsity of complaints made to it by private citizens, it would not be unreasonable to assume that a penal statute such as Section 1001, which is directly concerned with the truth or falsity of any given statement, could not have been intended to embrace the FBI. . We feel that even this source of information might well dry up if some of those persons who act innocently and in good faith are indicted for violation of this serious criminal provision because what they say subsequently turns out to be untrue. The ease before us, we think, furnishes a good example. Although the jury found that Lambert had knowingly and willfully falsified his statement to the FBI, we simply cannot overlook the fact that Lambert indeed was thrown to the ground by the arresting officers and was later struck by them with slapjacks. Undoubtedly his statement greatly exaggerated the seriousness of this treatment, but we are unable to say that he might not himself have believed that he was thus abused. In the heat of the moment a peculiarly excitable individual might well view the incident in a far more serious light than objective analysis would support. 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_adminrev

J

What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TERRY COACH INDUSTRIES, INC., Respondent. No. 22715. United States Court of Appeals Ninth Circuit. May 1, 1969. Allison W. Brown, Jr., Washington, D. C. (argued), Ralph E. Kennedy, Director, NLRB, Los Angeles, Cal., Arnold Ordman, Gen. Counsel, Dominick L. Ma-noli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Franklin C. Milliken, Atty., Washington, D. C., for petitioner. Hugh J. Scallon (argued), Gibson, Dunn & Crutcher, Levy, DeRoy, Geffner & Van Bourg, Los Angeles, Cal., for respondent. Before CHAMBERS and DUNIWAY, Circuit Judges, and VON DER HEYDT, District Judge. The Honorable James A. von der Heydt, United States District Judge for the District of Alaska, sitting by designation. PER CURIAM: On May 3, 1966, a strike occurred at the plant of Terry Coach Industries in El Monte, California. Not all of the company’s employees participated, and the plant was not closed. As might be expected, some friction developed between strikers and non-strikers, and between strikers and third parties having business at the plant. When the strike ended on May 11, the company rehired all but six of the strikers. These six the management believed guilty of serious misconduct during the strike. Subsequently, proceedings were begun before the National Labor Relations Board which resulted in an order that Terry Coach reinstate Willis Smith, one of the six, with full back pay. Terry Coach Industries, Inc., 166 N.L.R.B. No. 76 (June 30, 1967.) The present petition, to enforce that order, followed. The strike in question was economic in nature, and it was stipulated that Smith had not been replaced at the time he sought reinstatement. The Board found as fact certain relatively minor acts of misconduct on Smith’s part, which it concluded did not justify refusing to reinstate him. We agree. However, the Board refused to find as fact certain alleged acts of misconduct of a more serious nature. Thus the issue before us is the 'accuracy of the Board’s findings of fact. The scope of our review in such matters is limited. “The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.” National Labor Relations Act, 29 U.S.C. § 160(e) (1964). While that standard of “substantial evidence” does not make of this court a rubber stamp for approving the Board’s findings, it does mean that where the evidence as a whole will reasonably support the Board’s findings, we may not deny enforcement, even though this court might reach an opposite conclusion were we to determine the matter de novo. N. L. R. B. v. Stanislaus Implement & Hardware Co., 226 F.2d 377, 381 (9th Cir. 1955). This is particularly true of questions involving the credibility of oral testimony. N. L. R. B. v. Luisi Truck Lines, 384 F.2d 842, 846 (9th Cir. 1967). We have examined the record with care, and have concluded, on the record as a whole, that sufficient grounds exist to support the Board’s determination, and to satisy the statutory test of “substantial evidence.” The Board’s order is enforced. Question: What federal agency's decision was reviewed by the court of appeals? A. Benefits Review Board B. Civil Aeronautics Board C. Civil Service Commission D. Federal Communications Commission E. Federal Energy Regulatory Commission F. Federal Power Commission G. Federal Maritime Commission H. Federal Trade Commission I. Interstate Commerce Commission J. National Labor Relations Board K. Atomic Energy Commission L. Nuclear Regulatory Commission M. Securities & Exchange Commission N. Other federal agency O. Not ascertained or not applicable Answer:

sc_decisiondirection

A

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. ARMOUR et al. v. CITY OF INDIANAPOLIS, INDIANA, et al. No. 11-161. Argued February 29, 2012 Decided June 4, 2012 Breyer, J., delivered the opinion of the Court, in which Kennedy, Thomas, Ginsburg, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia and Alito, JJ., joined, post, p. 688. Mark T Standi argued the cause for petitioners. With him on the briefs were Roy T Englert, Jr., Daniel N. Ler-man, Ronald J. Waicukauski, Carol Nemeth Joven, and R. Davy Eaglesfield III. Paul D. Clement.or good the cause for respondents. With him on the brief were George W. Hicks, Jr., Jeffrey M. Har-. ris, and Justin F. Roebel. Briefs of amici curiae urging reversal were filed for the Institute for Justice by William H. Mellor, Robert J. McNamara, Clark M. Neily III, and Jeff Rowes; for the National Association of Home Builders by Ari Pollack, Michael Callahan, Erik G. Moskowitz, Thomas J. Ward, Christopher M. Whitcomb, and Amy C. Chai; and for the National Taxpayers Union by Shay Dvoretzky. Briefs of amici curiae urging affirmance were filed for the International City/County Management Association et al. by Jon Laramore, A. Scott Chinn, and Lisa E. Soronen; and for the International Municipal Lawyers Association by Quin M. Sorenson, Lowell J. Schiller, and Charles W. Thompson, Jr. Joseph D. Henchman filed a brief for the Tax Foundation as amicus curiae. Justice Breyer delivered the opinion of the Court. ■ For many years, an Indiana statute, the “Barrett Law,” authorized Indiana’s cities to impose upon benefited lot own.ers the cost of sewer improvement projects. The Barrett Law also permitted those lot owners to pay either immediately in the form of a lump sum or over time in installments. In 2005, the city of Indianapolis (Indianapolis or City) adopted a new assessment and payment method, the “STEP” plan, and it forgave any Barrett Law installments that lot owners had not yet paid. A group of lot owners who had already paid their entire Barrett Law assessment in a lump sum believe that the City should have provided them with equivalent refunds. And we must decide whether the City’s refusal to do so unconstitutionally discriminates against them in violation of the Equal Protection Clause, Arndt. 14, § 1. We hold that the City had a rational basis for distinguishing between those lot owners who had already paid their share of project costs and those who had not. And we conclude that there is no equal protection violation. I A Beginning in 1889, Indiana’s Barrett Law permitted cities to pay for public improvements, such as sewage projects, by “apportioning]” the costs of a project “equally among all abutting lands or lots.” Ind. Code § 36-9-39-15(b)(3) (2011); see Town Council of New Harmony v. Parker, 726 N. E. 2d 1217, 1227, n. 13 (Ind. 2000) (project’s beneficiaries pay its costs). When a city built a Barrett Law project, the city’s public works board would create an initial lot-owner assessment by “dividing the estimated total cost of the sewage works by the total number of lots.” § 36-9-39-16(a). It might then adjust an individual assessment downward if the lot would benefit less than would others. § 36-9-39-17(b). Upon completion of the project, the board would issue a final lot-by-lot assessment. The Barrett .Law permitted lot owners to pay the assessment either in a single lump sum or over time in installment payments (with interest). The City would collect installment payments “in the same manner as other taxes.” §36-9-37-6. The Barrett Law authorized 10-, 20-, or 30-year installment plans. § 36-9-37-8.5(a). Until fully paid, an assessment would constitute a lien against the property, permitting the city to initiate foreclosure proceedings in case of a default. §§ 36-9~37-9(b), -22. For several decades, Indianapolis used the Barrett Law system to fund sewer projects. See, e. g., Conley v. Brummil, 92 Ind. App. 620, 621, 176 N. E. 880, 881 (1931) (in banc). But in 2005, the City adopted a new system, called the Septic Tank Elimination Program (STEP), which financed projects in part through bonds, thereby lowering individual lot owners' sewer-connection costs. By that time, the City had constructed more than 40 Barrett Law projects. App. to Pet. for Cert. 5a. We are told that installment-paying lot owners still owed money in respect to 24 of those projects. See Reply Brief for Petitioners 16-17, n. 3 (citing City’s Response to Plaintiff’s Brief on Damages, Record in Cox v. Indianapolis, No. 1:09-cv-0435 (SD Ind.), Doc. 98-1 (Exh. A)). In respect to 21 of the 24, some installment payments had not yet fallen due; in respect to the other 3, those who owed money were in default. Reply Brief for Petitioners 17, n. 3. B This case concerns one of the 24 still-open Barrett Law projects, namely, the Brisbane/Manning Sanitary Sewers Project. The Brisbane/Manning Project began in 2001. It connected about 180 homes to the City’s sewage system. Construction was completed in 2003. The Indianapolis Board of Public Works (Board) held an assessment hearing in June 2004. And in July 2004, the Board sent the 180 affected homeowners a formal notice of their payment obligations. The notice made clear that each homeowner could pay the entire assessment — $9,278 per property — in a lump sum or in installments, which would include interest at a 3.5% annual rate. Under an installment plan, payments would amount to $77.27 per month for 10 years; $38.66 per month for 20 years; or $25.77 per month for 30 years. In the event, 38 homeowners chose to pay up front; 47 chose the 10-year plan; 27 chose the 20-year plan; and 68 chose the 30-year plan. And in the first year each homeowner paid the amount due ($9,278 upfront; $927.80 under the 10-year plan; $463.90 under the 20-year plan, or $309.27 under the 30-year plan). App. to Pet. for Cert. 48a. The next year, however, the City decided to abandon the Barrett Law method of financing. It thought that the Barrett Law’s lot-by-lot payments had become too burdensome for many homeowners to pay, discouraging changes from less healthy septic- tanks to healthier sewer systems. See id., at 4a-5a. (For example, homes helped by the Brisbane/ Manning Project, at a cost of more than $9,000 each, were then valued at $120,000 to $270,000. App. 67.) The City’s new STEP method of financing would charge each connecting lot owner a flat $2,500 fee and make up the difference by floating bonds eventually paid for by all lot owners citywide. See App. to Pet. for Cert. 5a, n. 5. On October 31, 2005, the City enacted an ordinance implementing its decision. In December, the Board enacted a further resolution, Resolution 101, which, as part of the transition, would “forgive all assessment amounts ... established pursuant to the Barrett Law Funding for Municipal Sewer programs due and owing from the date of November 1, 2005 forward.” App. 72 (emphasis added). In its preamble, the resolution said that the Barrett Law “may present financial hardships on many middle to lower income participants who most need sanitary sewer service in lieu of failing septic systems”; it pointed out that the City was transitioning to the new STEP method of financing; and it said that the STEP method was based upon a financial model that had “considered the current assessments being made by participants in active Barrett Law projects” as well as future projects. Id., at 71-72. The upshot was that those who still owed Barrett Law assessments would not have to make further payments but those who had already paid their assessments would not receive refunds. This meant that homeowners who had paid the full $9,278 Brisbane/Manning Project assessment in a lump sum the preceding year would receive no refund, while homeowners who had elected to pay the assessment in installments, and had paid a total of $309.27, $463.90, or $927.80, would be under no obligation to make further payments. In February 2006, the 38 homeowners who had paid the full Brisbane/Manning Project assessment asked the City for a partial refund (in an amount equal to the smallest forgiven Brisbane/Manning installment debt, apparently $8,062). The City denied the request in part because “ [refunding payments made in your project area, or any portion of the payments, would establish a precedent of unfair and inequitable treatment to all other property owners who have also paid Barrett Law assessments . . . and while [the November 1, 2005, cutoff date] might seem arbitrary to you, it is essential for the City to establish this date and move forward with the new funding approach.” Id., at 50-51. C Thirty-one of the thirty-eight Brisbane/Manning-Project lump-sum homeowners brought this lawsuit in Indiana state court seeking a refund of about $8,000 each. They claimed in relevant part that the City’s refusal to provide them with refunds at the same time that the City forgave the outstanding project debts of other Brisbane/Manning homeowners violated the Federal Constitution’s Equal Protection Clause, Arndt. 14, §1; see also Rev. Stat. §1979, 42 U. S. C. § 1983. The trial court granted summary judgment in their favor. The State Court of Appeals affirmed that judgment. 918 N. E. 2d 401 (2009). But the Indiana Supreme Court reversed. 946 N. E. 2d 553 (2011). In its view, the City’s distinction between those who had already paid their Barrett Law assessments and those who had not was “rationally related to its legitimate interests in reducing its administrative costs, providing relief for property owners experiencing financial hardship, establishing a clear transition from [the] Barrett Law to STEP, and preserving its limited resources.” App. to Pet. for Cert. 19a. We granted certiorari to consider the equal protection question. And we now affirm the Indiana Supreme Court. II A As long as the City’s distinction has a rational basis, that distinction does not violate the Equal Protection Clause. This Court has long held that “a classification neither involving fundamental rights nor proceeding along suspect lines . . . cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe, 509 U. S. 312, 319-320 (1993); cf. Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 155, 165-166 (1897). We have made clear in analogous contexts that, where “ordinary commercial transactions” are at issue, rational basis review requires deference to reasonable underlying legislative judgments. United States v. Carotene Products Co., 304 U. S. 144, 152 (1938) (due process); see also New Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam) (equal protection). And we have repeatedly pointed out that “[legislatures have especially broad latitude in creating classifications and distinctions in tax statutes.” Regan v. Taxation With Representation of Wash., 461 U. S. 540, 547 (1983); see also Fitzgerald v. Racing Assn, of Central Iowa, 539 U. S. 103, 107-108 (2003); Nordlinger v. Hahn, 505 U. S. 1, 11 (1992); Lehnhausen v. Lake Shore Auto Parts Co., 410 U. S. 356, 359 (1973); Madden v. Kentucky, 309 U. S. 83, 87-88 (1940); Citizens’ Telephone Co. of Grand Rapids v. Fuller, 229 U. S. 322, 329 (1913). Indianapolis’ classification involves neither a “fundamental right” nor a “suspect” classification. Its subject matter is local, economic, social, and commercial. It is a tax classification. And no one here claims that Indianapolis.has discriminated against out-of-state commerce or new residents. Cf. Hooper v. Bernalillo County Assessor, 472 U. S. 612 (1985); Williams v. Vermont, 472 U. S. 14 (1985); Metropolitan Life Ins. Co. v. Ward, 470 U. S. 869 (1985); Zobel v. Williams, 457 U. S. 55 (1982). Hence, this case falls directly within the scope of our precedents holding such a law constitutionally valid if “there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.” Nordlinger, supra, at 11 (citations omitted). And it falls within the scope of our precedents holding that there is such a plausible reason if “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993); see also Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78 (1911). Moreover, analogous precedent warns us that we are not to “pronoune[e]” this classification “unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” Carotene Products Co., supra, at 152 (due process claim). Further, because the classification is presumed constitutional, the “ ‘burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.’” Heller, supra, at 320 (quoting Lehnhausen, supra, at 364). B In our view, Indianapolis’ classification has a rational basis. Ordinarily, administrative considerations can justify a tax-related distinction. See, e. g., Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 511-512 (1937) (tax exemption for businesses with fewer than eight employees rational in light of the “ [administrative convenience and expense” involved); see also Lehnhausen, supra, at 365 (comparing administrative cost of taxing corporations versus individuals); Madden, supra, at 90 (comparing administrative cost of taxing deposits in local banks versus those elsewhere). And the City’s decision to stop collecting outstanding Barrett Law debts finds rational support in related administrative concerns. The City had decided to switch to the STEP system. After that change, to continue Barrett Law unpaid-debt collection could have proved complex and expensive. It would have meant maintaining an administrative system that for years to come would have had to collect debts arising out of 20-plus different construction projects built over the course of a decade, involving monthly payments as low as $25 per household, with the possible need to maintain credibility by tracking down defaulting debtors and bringing legal action. The City, for example, would have had to maintain its Barrett Law operation within the City Controller’s Office, keep files on old, small, installment-plan debts, and (a City official says) possibly spend hundreds of thousands of dollars keeping computerized debt-tracking systems current. See Brief for International City/County Management Association et al. as Amici Curiae 13, n. 12 (citing Affidavit of Charles White ¶13, Record in Cox, Doc. No. 57-3). Unlike the collection system prior to abandonment, the City would not have added any new Barrett Law installment-plan debtors. And that fact means that it would have had to spread the fixed administrative costs of collection over an ever-declining number of debtors,, thereby continuously increasing the per-debtor cost of collection. Consistent with these facts, the director of the City’s Department of Public Works later explained that the City decided to forgive outstanding debt in part because “[t]he administrative costs to service and process remaining balances on Barrett Law accounts long past the transition to the STEP program would hot benefit the taxpayers” and would defeat the purpose of the transition. App. 76. The four other members of the Board have said the same. See Affidavit of Gregory Taylor ¶6, Record in Cox, Doc. No. 57-5; Affidavit of Kipper Tew ¶6, ibid., Doc. No. 57-6; Affidavit of Susan Schalk ¶6, ibid., Doc. No. 57-7; Affidavit of Roger Brown ¶6, ibid., Doc. No. 57-8. The rationality of the City’s distinction draws further support from the nature of the line-drawing choices that confronted it. To have added refunds to forgiveness would have meant adding yet further administrative costs, namely, the cost of processing refunds. At the same time, to have tried to limit the City’s costs and lost revenues by limiting forgiveness (or refund) rules to Brisbane/Manning homeowners alone would have led those involved in other Barrett Law projects to have justifiably complained about unfairness. Yet to have granted refunds (as well as providing forgiveness) to all those involved in all Barrett Law projects (there were more than 40 projects) or in all open projects (there were more than 20) would have involved even greater administrative burden. The City could not just “cut . . . checks,” post, at 691 (Roberts, C. J., dissenting), without taking funding from other programs or finding additional revenue. If, instead, the City had tried to keep the amount of revenue it lost constant (a rational goal) but spread it evenly among the apparently thousands of homeowners involved in any of the Barrett Law projects, the result would have been yet smaller individual payments, even more likely to have been too small to justify the administrative expense. Finally, the rationality of the distinction draws support from the fact that the line that the City drew — distinguishing past payments from future obligations — is a line well known to the law. Sometimes such a line takes the form of an amnesty program, involving, say, mortgage payments, taxes, or parking tickets. E. g., 26 U. S. C. § 108(a) (1)(E) (2006 ed., Supp. IV) (federal income tax provision allowing homeowners to omit from gross income newly forgiven home mortgage debt); United States v. Martin, 523 F.. 3d 281, 284 (CA4 2008) (tax amnesty program whereby State newly forgave penalties and liabilities if taxpayer satisfied debt); Horn v. Chicago, 860 F. 2d 700, 704, n. 9 (CA7 1988) (city parking ticket amnesty program whereby outstanding tickets could be' newly settled for a fraction of amount specified). This kind of line is consistent with the distinction that the law often makes between actions previously taken and those yet to come. C Petitioners’ contrary arguments are not sufficient to change our conclusion. Petitioners point out that the Indiana Supreme Court also listed a different consideration, namely, “financial hardship,” as one of the factors supporting rationality. App. to Pet. for Cert. 19a. They refer to the City’s resolution that said that, the Barrett Law “may present financial hardships on many middle to lower income participants who most need sanitary sewer service in lieu of failing septic systems.” App. 71. And they argue that the tax distinction before us would not necessarily favor low-income homeowners. We need not consider this argument, however, for the administrative considerations we have mentioned are sufficient to show a rational basis for the City’s distinction. The Indiana Supreme Court wrote that the City’s classification was “rationally related” in part “to its legitimate interests in reducing its administrative costs.” App. to Pet. for Cert. 19a (emphasis added). The record of the City’s proceedings is consistent with that determination. See App. 72 (when developing transition, the City “considered the current assessments being made by participants in active Barrett Law projects”)- In any event, a legislature need not “actually articulate at any time the purpose or rationale supporting its classification.” Nordlinger, 505 U. S., at 15; see also Fitzgerald, 539 U. S., at 108 (similar). Rather, the “burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Madden, 309 U. S., at 88; see Heller, 509 U. S., at 320 (same); Lehnhausen, 410 U. S., at 364 (same); see also Allied Stores of Ohio, Inc. v. Bowers, 358 U. S. 522, 530 (1959) (upholding state tax classification resting “upon a state of facts that reasonably can be conceived” as creating a rational distinction). Petitioners have not “negative[dj” the Indiana Supreme Court’s first listed justification, namely, the administrative concerns we have discussed. Petitioners go on to propose various other forgiveness systems that would have included refunds for at least some of those who had already paid in full. They argue that those systems are superior to the system that the City chose. We have discussed those, and other possible, systems earlier. Supra, at 682-683. Each has advantages and disadvantages. But even if petitioners have found a superior system, the Constitution does not require the City to draw the perfect line nor even to draw a line superior to some other line it might have drawn. It requires only that the line actually drawn be a rational line. And for the reasons we have set forth in Part II-B, supra, we believe that the line the City drew here is rational. Petitioners further argue that administrative considerations alone should not justify a tax distinction, lest a city arbitrarily allocate taxes among a few citizens while forgiving many similarly situated citizens on the ground that it is cheaper and easier to collect taxes from a few people than from many. Brief for Petitioners 45. Petitioners are right that administrative considerations could not justify such an unfair system. But that is not because administrative considerations can never justify tax differences (any more than they can always do so). The question is whether reducing those expenses, in the particular circumstances, provides a rational basis justifying the tax difference in question. In this case, “in the light of the facts made known or generally assumed,” Carotene Products Co., 304 U. S., at 152, it is reasonable to believe that to graft a refund system onto the City’s forgiveness decision could have (for example) imposed an administrative burden of both collecting and paying out small sums (say, $25 per month) for years. As we have said, supra, at 682-684, it is rational for the City to draw a line that avoids that burden. Petitioners, who are the ones “attacking the legislative arrangement,” have the burden of showing that the circumstances are otherwise, i. e., that the administrative burden is too insubstantial to justify the classification. That they have not done. Finally, petitioners point to precedent that in their view makes it more difficult than we have said for the City to show a “rational basis.” With but one exception, however, the cases to which they refer involve discrimination based on residence or length of residence. E. g., Hooper v. Bernalillo County Assessor, 472 U. S. 612 (state tax preference distinguishing between long-term and short-term resident veterans); Williams v. Vermont, 472 U. S. 14 (state use tax that burdened out-of-state car buyers who moved in state); Metropolitan Life Ins. Co. v. Ward, 470 U. S. 869 (state law that taxed out-of-state insurance companies at a higher rate than in-state companies); Zobel v. Williams, 457 U. S. 55 (state dividend, distribution system that favored long-term residents). But those circumstances are not present here. The exception consists of Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U. S. 336 (1989). The Court there took into account a State Constitution and related laws that required equal valuation of equally valuable property. Id., at 345. It considered the constitutionality of a county tax assessor’s practice (over a period of many years) of determining property values as of the time of the property’s last sale; that practice meant highly unequal valuations for two identical properties that were sold years or decades apart. Id., at 341. The Court first found that the assessor’s practice was not rationally related to the county’s avowed purpose of assessing properties equally at true current value because of the intentional systemic discrepancies the practice created. Id., at 343-344. The Court then noted that, in light of the State Constitution and related laws requiring equal valuation, there could be no other rational basis for the practice. Id., at 344-345. Therefore, the Court held, the assessor’s discriminatory policy violated the Federal Constitution’s insistence upon “equal protection of the law.” Id., at 346. Petitioners argue that the City’s refusal to add refunds to its forgiveness decision is similar, for it constitutes a refusal to apply “equally” an Indiana state law that says that the costs of a Barrett Law project shall be equally “apportioned.” Ind. Code § 36-9-39-15(b)(3). In other words, petitioners say that even if the City’s decision might otherwise be related to a rational purpose, state law (as in Allegheny) makes this the rare case where the facts preclude any rational basis for the City’s decision other than to comply with the state mandate of equality. Allegheny, however, involved a clear state-law requirement clearly and dramatically violated. Indeed, we have described Allegheny as “the rare case where the facts precluded” any alternative reading of state law and thus any alternative rational basis. Nordlinger, supra, at 16. Here, the City followed state law by apportioning the cost of its Barrett Law projects equally. State law says nothing about forgiveness, how to design a forgiveness program, or whether or when rational distinctions in doing so are permitted. To adopt petitioners’ view would risk transforming ordinary violations of ordinary state tax law into violations of the Federal Constitution. * * * For these reasons, we conclude that the City has not violated the Federal Equal Protection Clause. And the Indiana Supreme Court’s similar judgment is Affirmed. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspecifiable Answer:

songer_genstand

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 civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. 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". KAHL v. UNITED STATES. No. 4580. United States Court of Appeals Tenth Circuit. May 9, 1953. Rehearing Denied May 27, 1953. Bruce Kistler, Denver, Colo., for appellant. Harry G. Foreman, Norman, Okl. (Robert E. Shelton, U. S. Atty., Oklahoma City, Okl., on the brief), for appellee. Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges. MURRAH, Circuit Judge. This is an appeal from a judgment denying a motion to vacate under Title 28 U.S.C.A. § 2255. The indictment returned in the Western District of Oklahoma was intended to charge a conspiracy to commit the offense of “causing or attempting to cause” the escape of named prisoners, including the petitioner, from the Federal Reformatory at El Reno, Oklahoma, in violation of Title 18 U.S.C.A. § 252 (now § 752). Upon a plea of guilty, the petitioner was sentenced to a term of three years authorized by § 252. Upon the hearing of the motion to vacate, it was apparently conceded, and the trial court held, that the facts alleged in the indictment do not charge a valid conspiracy under § 252. This is so because § 252 applies only to prison officials and outsiders, and is inapplicable to inmates. The trial court took the view however that the indictment nevertheless charged a valid conspiracy under Title 18 U.S.C.A. § 88 (now § 371) to commit an offense against the United States, to-wit to escape or attempt to- escape from a penal institution in violation of Title 18 U.S.C.A. § 753(h) (now § 751). The court accordingly corrected its judgment to impose a sentence of two years, the maximum authorized by § 88. On appeal the petitioner concedes the firmly established concept carried over into Rule 7(c) of the Fed.Rules of Crim.Proc., 18 U.S.C.A., to the effect that error in the citation or omission of the statute alleged to have been violated is not grounds for dismissal “if the error or omission did not mislead the defendant to his prejudice.” It is earnestly contended, however, that the indictment is fatally defective because, given the liberal construction accorded under the rule, and having in mind the constitutional prerequisites, it does not attempt to charge a conspiracy to violate § 753(h), and does not have the substantial effect of doing so. The appellant points to the critical words, “whoever escapes or attempts to escape” in old § 753(h) and “causing or attempting to cause the escape of them” used in the indictment to read upon old § 252, and insists that the charging words in the indictment do not with sufficient clarity apprise him of the nature of the charge against him so that he will not be mislead or prejudiced. It is suggested that a conspiracy to escape or attempt to escape from a federal penal institution condemned under § 753(h) is one thing and a conspiracy to cause or attempt to cause the escape from a federal penal institution is quite another thing; that while it is unlawful to conspire to escape or attempt to escape, it is not unlawful to conspire to cause or attempt to cause the-escape of oneself. It may well be that the rhetorical variance in the challenged words of the indictment and those of the escape statute, standing alone, would tend to mislead the accused to his prejudice. But the indictment does not stop there. In meticulous and prolix detail the indictment charged that the six named defendants, “ * * * did unlawfully conspire, combine, confederate and agree together and with each other to the effect that they would procure various and sundry weapons and other substances designed for the purpose of, and capable of killing, injuring or disabling any officer, agent or employee of said penal institution who would offer resistance to their escape from said prison, and that by means of such weapons would thereupon overpower certain employees at said institution and by means thereof would effect the escape of them the said above named defendants from said institution and that said purpose would further be effected by the procuring of orders or call slips which would permit them to call at the doctor’s office within said institution, which orders or call slips were procured for the purpose and with the intent of promoting said unlawful conspiracy.” The indictment then went on to allege that for the. purpose of effecting the scheme and design, the petitioner did certain enumerated overt acts. The office of an indictment or information is to state concisely and definitely the essential facts of the offense charged, Rule 7(c) Fed.Rules of Cr.Proc.; and a plea of guilty to an indictment admits all facts well pleaded, waives any defect in form, and is a confession of guilt. Lindsay v. United. States, 10 Cir., 134 F.2d 960, certiorari denied 319 U.S. 763, 63 S.Ct. 1316, 87 L.Ed. 1714; Weatherby v. United States, 10 Cir., 150 F.2d 465; Thornburg v. United States, 10 Cir., 164 F.2d 37. At the time the acts alleged in the in-, dictment were committed,_ § 88 of Title 18 U.S.C.A. made it unlawful to conspire to “commit any offense against the United States”. If, therefore, the indictment charges a conspiracy to violate any valid law of the United States with sufficient clarity to apprise the accused of the nature of the charge so that he can intelligently defend against it and plead it in bar to a future prosecution, it is sufficient even though it may refer to erroneous statutes and contain extraneous statements of the pleader. United States v. Crummer, 10 Cir., 1945, 151 F.2d 958; Smith v. United States, 10 Cir., 1944, 145 F,2d 643; Mitchell v. United States, 10 Cir., 1944, 143 F.2d 953. Viewed in its entirety and given its ordinary meaning, we think the language of this indictment met those requirements. It is said that the sentence imposed, being in excess of the maximum authorized by the applicable statute, and the excess portion being inseparable from the valid portion, the entire sentence is void. 24 C.J.S., Criminal Law, § 1584, pages 112— 114. Since United States v. Pridgeon, 153 U.S. 48, 14 S.Ct. 746, 751, 38 L.Ed. 631, it has been almost uniformly held that “a sentence is legal so far as it is within the provisions of law and the jurisdiction of' the court over the person and offense, and only void as to the excess, when such excess is separable, and may be dealt with without disturbing the valid portion of the sentence.” Where, however, the unauthorized portion of the sentence is not separable from the valid portion and cannot be dealt with separately, the whole sentence has been held to be void, and the prescribed procedure has historically been to discharge the prisoner on a writ subject to the right of the sovereign to recharge and the court to resentence within the provisions of the law. Biddle v. Thiele, 8 Cir., 1926, 11 F.2d 235. However, since Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392, the remedy for a sentence void in whole or in part is to apply to the court for vacation of the sentence and proper resentence in accordance with the statute under which the accused is adjudged guilty. United States v. Lynch, 7 Cir., 1947, 159 F.2d 198. This exclusive remedy was recognized and adopted in Title 28 U.S. C.A. § 2255 by expressly providing that where “a prisoner in custody under sentence of a court * * * claiming the right to be released upon the ground * * that the sentence was in excess of the maximum authorized by law * * * may move the court * * * to vacate, set aside or correct the sentence.” And, “If the court finds * * * that the sentence imposed was not authorized by law or otherwise open to collateral attack * * * ” it shall “vacate and set the judgment aside and shall discharge the prisoner or re-sentence him or grant a new trial or correct the sentence as may appear appropriate * * * without requiring the production of the prisoner at the hearing.” This rule was intended to clarify and simplify the procedure employed in the ancient common law writs of coram nobis and habeas corpus, and to the extent applicable, to supplant them. See Reviser’s Notes under Title 28 U.S.C.A. § 2255, page 763 ; and see Barrett v. Hunter, 10 Cir., 180 F.2d 510, annotation, 20 A.L.R.2d 976. We think the trial court followed the prescribed procedure. The petitioner was not prejudiced thereby, and the judgment is affirmed. Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_appnatpr

0

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. John SINCLAIR, et al., Appellants, v. Richard G. KLEINDIENST, et al. No. 82-1970. United States Court of Appeals, District of Columbia Circuit. Argued May 19, 1983. Decided June 24, 1983. Elizabeth M. Schneider, New York City, with whom Richard Chused, Washington, D.C., was on the brief, for appellants. David G. Lubell, New York City, also entered an appearance for appellants. John D. Bates, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees. Before WALD and MIKYA, Circuit Judges, and MacKINNON, Senior Circuit Judge. Opinion for the Court filed by Senior Circuit Judge MacKINNON. MacKINNON, Senior Circuit Judge: In 1973, appellants Sinclair, Plamondon and Forrest sued two Attorney Generals, the Director and three unnamed agents of the FBI, and the President of the United States claiming damages for alleged violation of their constitutional and statutory rights arising out of certain electronic telephone surveillance of the Black Panther Party in California in the year 1969. Over the years, decisions of the district court and this court have resulted in the dismissal of all claims against the original defendants. However, during the pendency of those proceedings, a second set of electronic surveil-lances involving the White Panther Party in Ann Arbor, Michigan during 1970 and 1971 was discovered. As a result of such discovery plaintiffs moved to amend their complaint and add claims against the three special agents of the FBI who allegedly participated in the White Panther Party electronic surveillances. The district court denied plaintiffs’ motions to amend the complaint. This court reversed that decision and remanded the case with instructions that plaintiffs be allowed to amend their complaint to name the three special agents as defendants and to include claims relating to the White Panther Party surveillance. Sinclair v. Kleindienst, 645 F.2d 1080, 1085-86 (D.C.Cir.1981). Following the amendment to the complaint, the three FBI agents moved to dismiss the action on various grounds. The plaintiffs opposed the motions for dismissal and, pursuant to 28 U.S.C. § 1406(a) (1976), moved to have all three cases transferred to the United States District Court for the Eastern District of Michigan. The district court dismissed the Plamondon and Forrest actions for, inter alia, failure to state a claim upon which relief could be granted, ruled that transfer of the Sinclair cause to Michigan was not in the interest of justice, and dismissed the Sinclair claim. Sinclair v. Kleindienst, No. 610-73 (D.D.C. June 4, 1982); JA 21-22. Plaintiffs Plamondon and Forrest appeal the court’s dismissal of their action and each plaintiff appeals the denial of his § 1406(a) motion to transfer. The court dismissed the cause of action by Plamondon and Forrest for failure to state claim. Fed.R.Civ.P. 12(b)(6). Our examination of the amended complaint reveals that there are general allegations sufficient to give adequate notice of the alleged unlawful acts which form the basis of each plaintiffs’ claims. We accordingly decide that the amended complaint does state a cause of action and that the dismissal should be reversed. By way of support for this disposition, we rely upon Supreme Court authority which holds that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,101-102, 2 L.Ed.2d 80 (1957) (footnote omitted). The rule that the allegations of the complaint must be construed liberally and most favorably to the pleader is so well recognized that no authority need be cited. The claim by the government that the complaint does not contain specific allegations of the incidents involving the individual defendants and the precise violations claimed falls short of asserting supportable grounds for dismissal. The Federal Rules of Civil Procedure do not require a claimant to set out the precise facts on which the claim is based. All that is required is “a short and plain statement of the claim” that will give the defendant fair notice of the plaintiff’s claim and the grounds upon which it rests. Fed.R.Civ.P. 8(a)(2). “Notice pleading” is sufficient. Conley v. Gibson, supra, 355 U.S. at 47-48, 78 S.Ct. at 102-103. We find that Forrest and Plamondon have set forth sufficient allegations to give the defendants notice of potentially viable claims of constitutional and statutory violations arising from allegedly illegal wiretaps conducted by the three defendants. We do not consider the complaint to be a model for the future but we do find it to be sufficient. The trial court also denied Sinclair’s motion to transfer which was based on 28 U.S.C. § 1406(a). This statute provides: The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. The court refused to transfer because, it stated, this was an “old case” and the new defendants were not added until five years after the complaint was filed. We do not consider that these factors justify denying the motion to transfer. While the original case involving the Black Panther Party was filed in 1973, the case involving the White Panther Party was not discovered until later. Upon discovery of the new claims, plaintiffs moved to amend the complaint within a reasonable amount of time. By order of this court, the three FBI agents were added as defendants in 1981. The lapse of time between the filing of the original action, the discovery of the current defendants, and the actual amendment of the complaint is not entirely attributable to the plaintiffs and is not a reason to deny the motion to transfer. In our opinion the requested transfer of the cause of action would be “in the interest of justice.” Refusal to transfer spells the end to the action, while transfer would not prejudice the defendants’ position on merits. The Supreme Court has inferred a congressional purpose underlying section 1406(a) favoring the transfer of cases when procedural obstacles “impede an expeditious and orderly adjudication ... on the merits.” Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67, 82 S.Ct. 913, 915-16, 8 L.Ed.2d 39 (1962). The procedural obstacles which may be removed by a transfer include the lack of personal jurisdiction, improper venue and statute of limitations bars. Dubin v. United States, 380 F.2d 813, 816 (5th Cir.1967) (footnote omitted) (“[Section] 1406 operates when there is an obstacle — either incorrect venue, absence of personal jurisdiction, or both — to a prompt adjudication on the merits in the forum where originally brought.”) Transfer is particularly appropriate where, as here, without a transfer the cause of action would be barred by the running of the applicable statute of limitations. Burnett v. New York Central Railroad Co., 380 U.S. 424,430, 85 S.Ct. 1050,1055,13 L.Ed.2d 941 (1965) (It is in “the interests of justice” to transfer a case rather than dismiss when refiling of the action in the proper venue would be barred by applicable statutes of limitations.). It is clear that regardless of the exact date upon which this action would be deemed to have accrued, it is now too late for plaintiff to institute a new cause of action in Michigan based upon the White Panther Party surveillances. In addition, it appears that transfer would enable the plaintiff to obtain personal jurisdiction over the three FBI agents. Overby v. Johnson, 418 F.Supp. 471 (E.D. Mich.1976) (the Michigan long-arm statute provides for limited personal jurisdiction over- non-resident defendants whose acts within the state result “in an action for tort.” M.C.L. § 600.705(2) (1976). Federal statutory claims are torts within the meaning of the state long-arm statute.). Cf. Black v. Rasile, 113 Mich.App. 601, 318 N.W.2d 475, 476 (Mich.App.1980) (“[T]he phrase ‘action for tort’ in M.C.L. § 600.-705(2) ... should be construed as including statutory causes of action .... ”). While this district court does not have personal jurisdiction over the defendants, it appears likely that personal jurisdiction could be obtained in Michigan. Transfer would, therefore, make an adjudication on the merits of plaintiff’s claims possible. Because the alleged illegal wiretapping occurred in Michigan, it may also be easier to find evidence and witnesses in that area. Moreover, venue would be proper in Michigan. See 28 U.S.C. § 1391(e) (1976). Applying the traditional factors considered when ruling on a motion to transfer, we conclude that the Sinclair case should be transferred. In our judgment both venue and jurisdiction are proper in Michigan and the matter can be more efficiently litigated in that jurisdiction. Since we have found that the dismissal of the Plamondon and Forrest causes of action was improper, and both of those appellants have also moved for transfer to the Eastern District of Michigan, we find that the same factors that dictate transfer of Sinclair’s action apply also to the actions by Plamon-don and Forrest. Thus, we order the transfer of all three cases to the Eastern District of Michigan. Conclusion For reasons set forth above it is hereby: ORDERED and ADJUDGED, that the dismissal of the causes of action by appellants Plamondon and Forrest for failure to state a claim upon which relief could be granted is reversed and the district court is instructed to reinstate the causes of action; and it is further ORDERED and ADJUDGED that the dismissal of the Sinclair cause of action is hereby reversed, and it is further ORDERED and ADJUDGED that the district court is hereby instructed to transfer the Sinclair, Plamondon and Forrest causes of action to the United States District Court for the Eastern District of Michigan. It is FURTHER ORDERED that the Clerk shall issue the mandate forthwith. Judgment accordingly. . The district court stated at the outset of its memorandum accompanying the order of dismissal that it lacked personal jurisdiction over the defendants. In the absence of personal jurisdiction, however, the district court could not properly consider any further action in the case, with the exception of ruling upon the motion to transfer under 28 U.S.C. § 1406(a). Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 915, 8 L.Ed.2d 39 (1962). . The defendants would not be barred from raising any defense or submitting any motions in the transferee court which would have been proper in the transferor court. While the three FBI agents may move for summary judgment on the basis of qualified immunity, they have not done so yet and therefore that issue is not before this court. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:

songer_state

41

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". CLIFTON MFG. CO. v. UNITED STATES. No. 3510. Circuit Court of Appeals, Fourth Circuit. April 2, 1935. W. A. Sutherland, of Atlanta, Ga. (Joseph B. Brennan, Edward R. Kane, Samuel Nesbitt Evins, Sutherland, Tuttle & Brennan, and Jones, Evins, Powers & Jones, all of Atlanta, Gá., on the brief), for appellant. Frank J. Wideman, Asst. Atty. Gen. (Sewall Key, Carlton Fox, and J. Louis Monarch, Sp. Assts. to Atty. Gen., and Charles C. Wyche, U. S. Atty., of Greenville, S. C., on the brief), for the United States. Before PARKER and SOPER, Circuit Judges, and HAYES, District Judge. SOPER, Circuit Judge. Clifton Manufacturing Company, a South Carolina corporation, brought an action in the District Court under section 24 (20) of the Judicial Code, as amended by the Act of February 24, 1925, 43 Stat. 972, 28 USCA § 41 (20), for the refund of income and profit taxes for the fiscal year ending March 31, 1918, contending that the assessment and collection of the taxes, when made, were barred by the statute of limitations. The taxpayer, in its bill of complaint, prayed that certain tax waivers, executed by its officers after the period. of limitations had expired, be declared void upon the ground that they had been obtained through false representations and mutual mistake. The District Judge held (3 F. Supp. 508) that the assessment and collection of the taxes were not barred, and that the waivers were valid. This court, 70 F.(2d) 102, affirmed the decree of the District Court with regard to the period of limitations, following the decisions of the Ninth Circuit in Zellerbach Paper Co. v. Helvering, 69 F.(2d) 852, and National Paper Products Co. v. Helvering, 69 F.(2d) 857; but the Supreme Court, Zellerbach Paper Co. v. Helvering, 293 U. S. 172, 183, 186, 55 S. Ct. 127, 79 L. Ed. —, reversed the decrees in these cases and remanded the pending case to this court in order that the question of the validity of the waivers might be determined. The taxpayer filed its return on May 27, 1918, under the Revenue Act of 1917 (40 Stat. 300), for the fiscal year ending March 31, 1918, showing a tax liability of $171,002.96. The Revenue Act of 1918, 40 Stat. 1057, became a law on February 24, 1919, with retroactive provisions as of January 1, 1918; and thereafter, to wit, on April 29, 1919, the taxpayer filed an additional return for the same period showing an additional tax liability of $50,638.75, which was duly paid. On May 25, 1926, another assessment was made, setting forth an additional deficiency amounting, with interest, to $38,488.07, which the taxpayer paid under protest on October 15, 1926. This last-mentioned assessment, the Supreme Court said, was levied after the expiration of the five-year period of limitations, provided by section 250 .(d) of the Revenue Act of 1918 (40 Stat. 1057, 1083), holding that the period should be computed from May 28, 1918, the date of the first return, and not from April 29, 1919, the date of the additional return. On September 24, 1926, after the expiration of the period of limitations as determined by the Supreme Court, the Collector of Internal Revenue demanded the payment of $130,777.27, being the amount, with interest, of an assessment made in May, 1921, and the taxpayer paid this sum under protest on October 15, 1926. With reference to a large part of the sum so paid, a claim in abatement was filed in July, 1921. It is agreed that the filing of this claim in abatement precludes a recovery of so much of the taxes as was covered by the claim, and that if the taxpayer is entitled to recover at all in' this case, the judgment should be for $57,265.76, with interest from October 15, 1926. On June 25, 1923, more than five years after the first return, the taxpayer executed a waiver effective for one year from date, wherein it consented to a determination, assessment, and collection of the taxes for the year 1918, under section 250 (d) of the Revenue Act of 1921, 42 Stat. 227, 265. Thereafter, other waivers were executed on January 19, 1924, December 4, 1924, and November 18, 1925, at which time the Revenue Act of 1924, 43 Stat. 253, was in effect, containing similar provisions as to waivers in sections 277 (a) (3) and 278 (c), 26 USCA §§ 1057 (a) (3), 1060 note. The taxpayer contends that under these facts, the waivers were without validity. It is not disputed that at the time they were executed, both the officers of the taxpayer and the Commissioner were under the impression that the statutory period of limitations had not expired, and that otherwise the waivers would neither have been requested nor given. The first waiver was given in response to a letter of the Commissioner of June 21, 1923, which, referring to a proposed additional assessment for the year 1918, requested that the form of waiver inclosed be- executed and returned, in order that the interests of the United States might not be jeopardized pending the consideration of a brief of the -taxpayer filed on March 5, 1923. It is contended that this letter involved the misrepresentation, on the part of the United States, that the period of limitations had not expired, whereby the taxpayer was misled, and executed the waivers under a mistake of law; or, if this view is not tenable, that the waivers were' executed under a mutual mistake in respect to the taxpayer’s antecedent and existing legal rights; and finally, that the waivers were given in ignorance of the right said to have been waived. If any of these grounds can be sustained, it is argued that the waivers were invalid and should be canceled. We are unable to reach the conclusion that the statements in the Commissioner’s letter amounted to such a misrepresentation as to entitle the taxpayer to cancellation. The taxpayer relies on the statement of the rule laid down in Pomeroy’s Equity Jurisprudence, § 847, and in Williston on Contracts, § 1591, to the general effect that where a mistake of one party as to the legal effect of a transaction is induced, procured, aided, or accompanied by inequitable conduct of the other party, even though no fraud or deception is intended, equitable relief will be granted. In the pending case, the request of the Commissioner, that the first waiver be executed in order that the interests of the government might not be prejudiced pending the consideration of the taxpayer’s brief, implied that the period of limitations had not then expired; but this letter was innocently written, for not only the taxpayer, but also the officials of the government, were under the belief that an assessment and collection of the tax could still legally be made. The letter did not contain any incorrect statement as to the time when the return was filed, or as to any other fact entering into a calculation of the period of limitation. The taxpayer had precisely the same knowledge of all the relevant facts as the government itself; and there was no circumstance, such as a lack of knowledge on the part of the taxpayer as to the filing date of the return, leading it to rely on the government’s request as an assertion that the period of limitations had not expired. The case of Panther Rubber Mfg. Co. v. Commissioner (C. C. A.) 45 F.(2d) 314, upon which the taxpayer relies, turns on such a fact. It is settled beyond possibility of dispute that a waiver given under section 250 (d) of the Revenue Act of 1921 is not invalid merely because it was executed after the expiration of the period of limitations. Stange v. United States, 282 U. S. 270, 51 S. Ct. 145, 75 L. Ed. 335; Burnet v. Chicago Railway Equipment Co., 282 U. S. 295, 299, 51 S. Ct. 137, 75 L. Ed. 349; W. P. Brown & Sons Lumber Co. v. Burnet, 282 U. S. 283, 287, 51 S. Ct. 140, 75 L. Ed. 343; McDonnell v. United States, 288 U. S. 420, 53 S. Ct. 410, 77 L. Ed. 869; Helvering v. Newport Co., 291 U. S. 485, 488, 54 S. Ct. 480, 78 L. Ed. 929. The waivers in the pending case were therefore not ineffectual simply because they were executed too late. Moreover, the belief, on the part of the Commissioner, that the period ran from the filing of the supplemental rather than from the filing of the original return, was not unreasonable, in view of the diversity of opinion amongst the courts themselves when the question reached them, the Fifth, Sixth and Eighth circuits entertaining one opinion, and the Fourth and Ninth circuits another. See Zellerbach v. United States, 293 U. S. 172, 176, 55 S. Ct. 127, 79 L. Ed. —. The Commissioner was guilty of no inequitable or unfair conduct in requesting the waiver; on the contrary, it was entirely proper for him to request and obtain it in the absence of a final determination that the collection of the deficiency was barred. Burnet v. Chicago Railway Equipment Co., 282 U. S. 295, 303, 51 S. Ct. 137, 75 L. Ed. 349. Hence the suggestion that there was misrepresentation attended by inequitable conduct on the part of the Commissioner must fail; but the taxpayer further contends that if this view is taken, the transaction was entered into under a mutual mistake of law, giving ground for equitable relief, since the private existing legal rights of the taxpayer were concerned. The difficulty of dealing with the effect of a mistake of law is thus summarized in Wil-liston on Contracts, § 1581: “There is no portion of the law of mistake more troublesome than that relating to mistake of law. It is impossible to coordinate the cases so as to produce satisfactory results, because the rule itself distinguishing mistake of law from mistake of fact is founded on no sound principle. Ignorance of law does not excuse one who has violated a prohibition of the law from the'penalties that the law imposes. This is a necessary rule not only of the law of crimes and torts, but it is generally true also that a contract forbidden by law, or a contract to do an act forbidden by law, is none the less unenforceable because the parties were ignorant of the law or made a mistake in regard to it, though this principle is not without exception. Such a rule is necessary to enforce the orders of society; but the only bearing that' it has on the reformation or rescission of contracts, or the recovery of payments made under a mistake is when the contract or payment is tainted with illegality. * * * But the injustice of some of the results produced thereby (i. e. by the rule that a mistake of law affords no ground for relief), has led to an increasing number of exceptions which have to a considerable extent destroyed the rule, and often make it difficult to determine in what cases it may still be thought applicable. The only way apparent for the law on the subject to obtain uniformity and certainty is by the gradual broadening of these exceptions until they so far coalesce that courts will venture to put mistakes of law and of fact on the same footing.” Such an exception, for instance, has been firmly established in the rule that a mistake as to the meaning of an instrument which the parties have executed, is ground for reformation, although the interpretation or construction of a contract is a question of law. Philippine Sugar, etc., Co. v. Government of Phil. Islands, 247 U. S. 385, 386, 389, 38 S. Ct. 513, 62. L. Ed. 1177; Williston on Contracts, § 1585; Pomeroy, Equity Jurisprudence, 845. It is difficult to see any reasonable distinction between the basis for this rule and that for which the taxpayer here contends, namely, that where parties enter into a transaction under a mutual mistake of law as to their private rights, relief from injustice caused thereby will be granted; for, in the latter case, it may often occur that except for the mistake, the transaction would not have been undertaken at all. The Supreme Court itself has at least suggested that where the mistake relates to the existing legal rights, interests, and* relation of the parties, resulting from antecedent transactions, it may, under proper circumstances, be ground for cancellation of instruments ■ which they have executed. Chicago, M. & St. P. R. Co. v. Des Moines Union Ry. Co., 254 U. S. 196, 218, 41 S. Ct. 81, 65 L. Ed. 219. As to a mistake of this sort, Williston says, “Contracts,” § 1589: “An exception has been made to the rule denying relief for mistake of law governing a situation prior to the bargain, where the mistake relates to the private rights of the parties as distinguished from a mistake as to the general law. Lord Westbury, in a leading English case, took this distinction. It is said, Tgnorantia juris' haud excusat;’ but in that maxim, the word ‘jus’ is used in the sense of denoting general law, the ordinary law of the country. But when the word ‘jus’ is used in the sense of denoting a private right, that maxim has no application. Private right of ownership is a matter of fact; it may be the result also of matter of law; but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is, that that agreement is liable to be set aside as having proceeded upon a common mistake. “The only merit of this distinction be- ■ tween private right and general law is that it enables a court of equity to give relief in a majority of cases where the parties to a transaction assumed as a basis for it a certain legal situation. Almost always such an assumption is based on a rule of law affecting the relative rights of the parties. Their mistake may be ignorance of a most fundamental principle of general law, but if the effect of that general rule is to vary their private rights, they come within the exception.” See, also, Pomeroy, Equity Jurisprudence, § 849. For cases in which this exception to the general rule as to mistakes of law has been applied, see the cases in the notes to the texts cited, and particularly Reggio v. Warren, 207 Mass. 525, 535, 93 N. E. 805, 32 L. R. A. (N. S.) 340, 20 Ann. Cas. 1244; Renard v. Clink, 91 Mich. 1, 3, 51 N. W. 692, 30 Am. St. Rep. 458; State v. Paup, 13 Ark. 129, 56 Am. Dec. 303; Stoeckle v. Rosenheim, 10 Del. Ch. 195, 87 A. 1006; Baker v. Massey, 50 Iowa, 399; Burton v. Haden, 108 Va. 51, 60 S. E. 736, 15 L. R. A. (N. S.) 1038; Cincinnati, I. & W. R. Co. v. Indianapolis Union R. Co. (C. C A.) 36 F.(2d) 323; Blakemore v. Blakemore, 44 S. W. 96, 19 Ky. Law Rep. 1619. It will be observed, however, from an examination of the cases that in all of them relief was based upon some substantial injustice which otherwise would have occurred, as in the surrender of a valuable interest, without compensation, or the payment of money without consideration; and it may be fairly said that at the heart of the rule wjiich permits equitable relief from the results of a mistake of law or of fact is found the fundamental principle of equity, that no one shall be allowed to enrich himself unjustly at the expense 'of another; or, as it has been put in England, relief from mistakes of law will be granted if there is any equitable ground that makes it, under the particular facts of the case, inequitable that the parties who receive the money should retain it. Williston on Contracts, § 1582. The real question then in the pending case is whether such injustice would result from the government’s retention of the money paid by the taxpayer as would justify the cancellation of the waivers. In our opinion, the answer should be in the negative. It is of great significance that the taxpayer was in truth indebted to the United States for taxes in the amount which it paid. If it should be relieved from this payment, it would be merely because of the failure of the United States to press its claim with the promptness considered reasonable by Congress. Thus the situation differs widely from the decided cases in which a failure to rescind a transaction would have entailed an unjust enrichment of the party against whom relief was sought. Some weight may be given to the circumstance that on March 5, 1923, within the period of limitations, the taxpayer filed a brief and requested a reconsideration of its case, an action that' may have contributed to the failure of the government to proceed more promptly. It is true that the Commissioner’s request for a waiver did not come until after the period had expired, but proceedings to collect the tax may well have been taken within the statutory period had the delay occasioned by the filing of the taxpayer’s brief not taken place. The Supreme Court has not looked with favor upon the efforts of taxpayers to rescind waivers filed after the expiration of the period of limitations. In all of the cases hereinbefore cited, in which the validity of such waivers' was sustained, it is probable that both parties were under the impression that the period had not expired when the waivers were executed. This seems to be quite clear in the case of Burnet v. Chicago Railway Equipment Co., 282 U. S. 295, 303, 51 S. Ct. 137, 75 L. Ed. 349. Amongst the reasons given by the taxpayer for the invalidity of the waiver there under consideration was that it had been secured by duress. The Commissioner was of the opinion that the period had' not expired, and suggested a waiver so as to make unnecessary the imposition of a jeopardy assessment. Although the period of limitations had in fact expired, the court held that a waiver given under such circumstances was not invalid. The decision does not expressly show whether the taxpayer was also of the opinion that the period of limitations had not expired when the waiver was given; but its vigorous defense of the case indicates that it shared the opinion of the Commissioner. This case alone seems to be a sufficient answer to the taxpayer’s argument herein that the representation that the period of limitations had not expired, to be gathered from the Commissioner’s request for a waiver, was ground for the cancellation of the waiver. The case also shows that in the opinion of the court the circumstances did not disclose that the taxpayer had been unjustly treated so as to make the waiver inoperative; and to this extent supports the view we now hold in the pending case that no such injustice to the taxpayer has been proved as would warrant the cancellation of the waivers on the ground of a mutual mistake of law. Finally, there is no basis for the taxpayer’s contention that without the intervention of equity- the waivers were invalid at law because they wer& given in ignorance of the right to which the waivers related. As we have pointed out, the taxpayer was fully acquainted with all the relevant facts; and it must be assumed that he was cognizant of his rights under the law. It is only when circumstances of the kind hereinbefore described are found, that ignorance of the law may be taken into account. The entire discussion by. the taxpayer of the principles underlying relief in equity from the consequences of a mistake of law would otherwise have been unnecessary. The judgment of the District Court is affirmed. 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_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. LIBERTY NAT. BANK OF SOUTH CAROLINA, AT COLUMBIA, et al. v. McINTOSH, Comptroller of Currency, et al. McINTOSH, Comptroller of Currency, et al. v. LIBERTY NAT. BANK OF SOUTH CAROLINA, AT COLUMBIA, et al. (Circuit Court of Appeals, Fourth Circuit. January 11, 1927.) Nos. 2558, 2569. 1. Banks and banking <@=>248(2) — Comptroller of Currency properly appointed receiver and assessed stockholders on assuming jurisdiction of national bank after another bank repudiated contract for liquidation (National Bank Act June 30, 1876, §§ I, 2, 3 [Comp. St. §§ 9807, 9826, 9827]). Under National Bank Act June 30, 1876, §§ 1, 2, 3 (Comp. St'. §§ 9807, 9826, 9827), Comptroller of Currency properly appointed receiver, and assessed shareholders of national bank on assuming jurisdiction of the affairs thereof, after another bank had repudiated contract entered into for liquidation of its affairs. 2. Banks and banking <§=>248(2)— Comptroller of Currency’s jurisdiction in respect to liquidation of national banks is exclusive. Jurisdiction of Comptroller of Currency in respect to all matters properly within bis discretion relative to liquidation of national banks is exclusive, and his action therein is not subject to review. 3. Banks and banking <@=>248(2) — Decisions of Comptroller of Currency are not subject to collateral attack, nor is his assessment against shareholders reviewable, in absence of fraud. Decisions of Comptroller of Currency relative to liquidation of national banks are not subject to collateral attack, nor is his assessment against shareholders, and amount thereof open to review, in absence of fraud. 4. Banks and banking <@=>287(3) — Receiver, taking possession of assets of national bank on appointment by Comptroller of Currency, assumes control thereof as officer of United States. Where Comptroller of Currency appoints a receiver of a national bank, receiver takes possession of assets of bank and assumes control of its operation, not as agent of bank, but as officer of the United States. 5. Appeal and error <@=>447 — Trial court held to have improperly granted injunction pending appeal from decree denying injunction, in absence of peculiar circumstances warranting it (Judicial Code, § 129 [Comp. St. § 1121]). Trial court held to have improperly granted' injunction pending appeal from decree refusing to enjoin Comptroller of Currency from collecting assessment against shareholders of national bank, since, although sueh appeal is authorized under Judicial Code, § 129 (Comp. St. § 1121), effect of granting injunction operates as securing relief denied on original application, which is abuse of discretion, in absence of peculiar circumstances warranting it. Appeals from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Ernest F. Cochran, Judge. Suit by the Liberty National Bank of South Carolina, at Columbia, and others against J. W. McIntosh, as Comptroller of the Currency of the United States, and another. Prom a decree denying an injunction, plaintiffs appeal; and from a subsequent order, enjoining and restraining defendants pending the appeal, defendants separately appeal. Affirmed as to first appeal, and reversed as to second appeal. D. W. Robinson and William M. Shand, both of Columbia, S. C. (Benet, Shand & McGowan, of Columbia, S. C., and George Bell Timmerman, of Lexington, S. C., on the brief), for plaintiffs. R. Beverley Herbert, of Columbia, S. C., and John K. Shields; of Tate, Tenn., for defendants. Before WADDILL, ROSE, and PARKER, Circuit Judges. WADDILL, Circuit Judge. These two causes grow out of proceedings to liquidate the affairs of the Liberty National' Bank of South Carolina, at Columbia, and were argued together in this court, and will be disposed of in one opinion. The Liberty National Bank of South Carolina, at Columbia, hereinafter referred to as 'the Liberty Bank, filed its bill and amended bill in equity in the first-named cause in the court below, praying that the action of the Comptroller of the Currency, named as a defendant therein, in appointing the eodefendant, Malcolm S. McConihe receiver of said bank, be declared void, and that the attempted levy and collection of an assessment on the shareholders of said bank by the defendants, in their official capacity, be enjoined and restrained. The bill briefly alleged that the Liberty Bank had entered into voluntary liquidation under contract with the National Loan & Exchange Bank of Columbia (hereinafter referred to as the Exchange Bank), which latter bank was to act as liquidator of the former, assuming to pay certain liabilities, and to be reimbursed by the Liberty Bank for any deficit. The original contract between the two banks was regularly entered into on the 23d of October, 1923, and pursuant to a subsequent resolution of the board of directors, and by agreement between the banks clause 6 was added thereto. By the agreement thus entered into, the Liberty Bank transferred all of the assets of every kind of the bank to the Exchange Bank, the Exchange Bank guaranteeing payment to the depositors of the Liberty Bank of the amount of their deposits therein, and also other obligations of the Liberty Bank for bills payable and rediscounts at the close of business on the 22d day of October, 1923, as shown by Exhibit A attached to the contract, with a proviso that the Exchange Bank did not guarantee any liability of said Liberty Bank to its stockholders, or any other liabilities of said Liberty Bank except those thereinbefore set forth. Under this contract the Exchange Bank at once possessed itself of all the assets and effects of the Liberty Bank, including its banking house, and proceeded to administer and liquidate the assets' of the bank as rapidly as in its-judgment was deemed advisable and advantageous, and it was provided that, after reimbursing itself for all expenses, not, however, to include commissions to the Exchange Bank (the latter bank making no charge for its services in the administration and liquidation of the affairs of the Liberty Bank and collecting and converting its assets into cash), together with all the advancements made on account of said Liberty Bank, and of all indebtedness of the Liberty Bank to the Exchange Bank of every character, and that the residue of the assets of said Liberty Bank should be turned over to it for distribution among its stockholders. Provision also was made for the liquidation and winding up of the affairs of the Liberty Bank by and under the supervision and direction of the Exchange Bank, but the Liberty Bank reserved the right, through its appropriate committees and representatives, to consult and advise daily with the Exchange Bank as to the administration and liquidation of the assets of the Liberty Bank, and also reserved the right to direct in writing the proper disposition of certain of its bills receivable and ehoses in action as it might be advised to, and the books of the Exchange Bank were to be open to the inspection of a representative of the Liberty Bank. It was ‘further provided that the Exchange Bank should not be liable to the Liberty Bank for any losses in connection with the liquidation and collection of the assets of the latter bank conveyed and transferred to it, except such as arose from gross negligence on its part or its agents. The Liberty Bank stipulated that it would save harmless the Exchange Bank from and against any and all losses, should there., be any, which the Exchange Bank might sustain on account of the failure to realize from the assets and property of the Liberty Bank sufficient to reimburse the Exchange Bank for all amounts which it might expend in carrying out the provisions of the contract, and upon final completion of the liquidation to pay any such deficiency to said Exchange Bank. The bill further charged that the .Comptroller was cognizant of and approved the ’contract of liquidation, and that thereafter the Exchange Bank, not having lived up to its contract, sought to have the Comptroller assume jurisdiction of the affairs of the Liberty Bank, and to appoint a receiver to take charge, which the Comptroller at first refused to do, but subsequently did, and ordered an assessment of $250,000 against the share- . holders of the Liberty Bank for the purpose of meeting its obligations, when the amount so due, in addition to the indebtedness ascertained by the Comptroller in favor of the Exchange Bank, to wit, $453,008.10, was not in excess of $6,000. The Liberty Bank also denied its liability to the Exchange Bank for the sum so adjudged against it, as it did the power of the Comptroller to make such' adjudication and assessment against shareholders, and insisted that such adjudication and assessment could only be made by a court of competent jurisdiction having authority to wind up the affairs and assess shareholders in insolvent national banks in liquidation. On the filing of the bill, the court awarded a rule against the defendants to show cause of July 27th why the interlocutory injunction should not be issued as prayed for, whereupon the defendant Comptroller of the Currency specially appeared for the purpose of contesting the jurisdiction of the court. The said defendant Comptroller and his codefendant, the receiver, upon the court’s overruling the plea to the jurisdiction, each moved the court to dismiss the bill for lack of equity, and the receiver duly made return to the said rule, showing his appointment and what he had done thereunder, with affidavits and records in support thereof. From said report it appears that assets came into his hands as follows: Good ........................ $ 138,453.93 Doubtful ..................... 63,980.69 Worthless .................... 844,719.48 ■Total.....................$1,047,154.10 From the first two items, the receiver hoped to realize $164,865.68. The receiver denied that his appointment was because of solicitation or importunity of the Exchange Bank, but was solely the result of a long and careful investigation and examination by the Comptroller of the affairs of the Liberty Bank, and, having become satisfied of its insolvency, the receiver was appointed, and the Comptroller thereafter directed the assessment of the shareholders to cover the indebtedness of the Liberty Bank. On the 28th of July, the court, having overruled the objection to the jurisdiction of the court, entered an .order declining to enjoin the Comptroller from exercising the pow-° ers conferred upon him by law, and denied the injunction asked for to restrain the receiver from proceeding with the collection of the shareholders’ assessments theretofore ordered by the Comptroller. From this action the appeal in the first-named cause, No. 2558, was taken. On the 4th of August, 1926, the Liberty _ Bank applied to the District Court of the United States for an order enjoining and restraining the defendants from further proceeding to enforce and collect the assessment previously made against the shareholders of the Liberty Bank, pending the appeal in the first cause, which was granted, and from this last-named order an appeal was taken by the Comptroller of the Currency and the receiver theretofore appointed by him for the Liberty Bank, which constitutes the last named cause No. 2569, and the two will be considered in the order named. Case No. 2558 involves a general consideration of the National Bank Act, particularly as respects the power and authority of the Comptroller of the Currency to appoint receivers for insolvent national banks, and assess shareholders in such institutions after liqidation proceedings have been inaugurated by the bank. The Liberty Bank insists that the right of the Comptroller to appoint a receiver only exists prior to the liquidation proceedings, and thereafter receivers are appointed and shareholders assessed not by the Comptroller, but by a court of equity of competent jurisdiction. Whatever may have been the law prior to the amendment of the National Bank Act of June 30, 1876, 19 JStat. 63, it would seem since that date there should be but little trouble to meet and dispose of the questions presented in this record. Section 1 of the act (Comp. St. § 9826) provides “* * * Whenever the Comptroller shall become satisfied of the insolvency of a national banking association, he may, after due examination of its affairs, * * * appoint a receiver, who shall proceed to close up such association, and enforce the personal liability of its shareholders, as provided in section fifty-two hundred and thirty-four [Rev. St. § 5234, now Comp. St. § 9821] of said statutes.” Section 2 of the act of 1876 (Comp. St. § 9807) provides that, when any national banking association’shall have gone into (voluntary) liquidation under the provisions of section 5220, R. S. (Comp. St. § 9806), the individual liability of shareholders provided for by R. S. § 5151 (Comp. St. § 9689) may be enforced by any creditor, by a bill in the nature of a creditor’s bill in the District Court of the district in which the association may have been located. Section 3 of the act of 1876 (Comp. St. § 9827) provides that, when the Comptroller has appointed a receiver and shall have paid the creditors in full and redeemed the circulating notes, then a meeting of the shareholders shall be called who shall decide whether the liquidation shall be completed by the receiver or an agent appointed by the shareholders. It will be observed that by the first section of the amended act (which it may be said in passing is one of far reaching importance to the national government and the public, and in which the Comptroller of the Currency is granted almost imperialistic powers) there is placed apparently no limitation to what he may do when the proper conditions arise for the exercise of the authority and discretion reposed in him. In a word, whenever he becomes, after due examination of its affairs^ satisfied of the insolvency of a national banking association, he may appoint a receiver, who shall proceed to close up the business of such association, and enforce the personal liability against shareholders as prescribed by law. This act can have but one meaning, and having regard to the importance of its subject-matter, and the delicate duties to be performed, positive and quick action, when found necessary, is contemplated looking to the winding up and closing of insolvent national banks. The convenience of large numbers of the public perhaps affected by what is to be done, and the serious disturbance of business conditions liable to be involved, would seem to justify and warrant this grant of power to an official of the dignity and importance of the Comptroller of the Currency. The third section of the amended act gives further color to this view, in that it provides that when creditors, through the Comptroller’s receiver, have been paid in full, and the bank’s circulating notes redeemed, the institution shall be returned to the control of its stockholders. Conceding that the second section of the amendatory act of 1876, on which the relief sought by the Liberty Bank is largely based, may give color to the claim made, in that it provides that when a national banking association shall have gone into voluntary liquidation, the individual liability of shareholders (Rev. Stat. § 5151; Comp. St. § 9689) may be enforced by any creditor by a bill in the nature of a creditor’s bill in the District Court of the district in which the association is located. But we have no such ease here, and no proceedings have been instituted, or any receiver asked for, and we believe we are not called upon to pass on the relative powers and authority of the Comptroller and the courts, in an insolvency proceeding against a bank in liquidation under section 2 of the amended act. To accept the Liberty Bank’s contention would be in effect to take away from the Comptroller of the Currency authority to act in the proper winding up of all insolvent national banking institutions, by the mere act or attempted act of those in charge ■of such institutions to inaugurate liquidation proceedings. This surely could not have been the purpose of the act, and to give it such an interpretation would not only do violence to its manifest meaning, but weaken the whole national banking system, and bring about a ■condition of uncertainty and chaos in connection with this most important branch of the government’s business. Ample authority will be found to make clear the purposes of the National Banking Act, and to fully and clearly show the power and authority of those charged with its administration, especially that of the Comptroller of the Currency. His jurisdiction in respect to all matters properly within his discretion is exclusive, and he is in respect thereto in no manner amenable to any court, nor is his action subject to review therein. “The bank is not considered as a private corporation, whose principal object is individual trade and individual profit; but as a public corporation, created for public and national purposes.” Chief Justice Marshall, in Osborn v. United States Bank, 9 Wheat. 860, 6 L. Ed. 204. “Our conclusions, upon principle and authority, are that Congress, having power to create a system of national banks, is the judge as to the extent of the powers which should be conferred upon such banks, and has the sole power to regulate and control the exercise of their operations; that Congress has directly dealt with the subject of insolvency of such banks by giving control to the Secretary of the Treasury and the Comptroller of the Currency, who are authorized to suspend the operations of the banks and appoint receivers thereof when they become insolvent, or when they fail to make good any impairment of capital.” Mr. Justice Shiras, in Easton v. Iowa, 188 U. S. 238, 23 S. Ct. 293, 47 L. Ed. 452. “The receiver is the instrument of the Comptroller. He is appointed by the Comptroller, and the power of appointment carries with it the power of removal. It is for the Comptroller to decide when it is necessary to institute proceedings against the stockholders to enforce their personal liability, and whether the whole or a part, and if only a part, how much, shall be collected. These questions are referred to his judgment and discretion, and his determination is conclusive. The stockholders cannot controvert it. It is not to be questioned in the litigation that may ensue. He may make it at such time as he may deem proper, and upon such data as shall be satisfactory to him.” Mr. Justice Swayne in Kennedy v. Gibson, 75 U. S. (8 Wall.) 505, 19 L. Ed. 476. The decisions of the Comptroller of the Currency are not subject to collateral attack, nor is his assessment against shareholders, and the amount thereof open to review; but, on the contrary, neither the bank nor the shareholders, clearly in the absence of fraud charged and proved, are entitled to a judicial determination of any question involved in his decision either as to the solvency, the sum due creditors and the amount of assessments as ordered, such matters one and all being exclusively within the judgment and discretion of therComptroller, and as to which he acts in a quasi judicial capacity. Kennedy v. Gibson, supra, 75 U. S. 498, 19 L. Ed. 476; Casey v. Galli, 94 U. S. 673, 24 L. Ed. 168; United States v. Knox, 102 U. S. (12 Otto) 422, 26 L. Ed. 216; Richmond v. Irons, 121 U. S. 27, 7 S. Ct. 788, 30 L. Ed. 864; Schrader v. Bank, 133 U. S. 67, 10 S. Ct. 238, 33 L. Ed. 564; Bushnell v. Leland, 164 U. S. 684, 17 S. Ct. 209, 41 L. Ed. 598; Hightower v. Bank, 263 U. S. 351, 44 S. Ct. 123, 68 L. Ed. 334; Deweese v. Smith (8th C. C. A.) 106 F. 438, 66 L. R. A. 971. Moreover, upon the Comptroller appointing a receiver of a national bank, the receiver takes possession of the assets of the bank, and assumes control of its operation, not as agent of the bank, but as an officer of the United States. He executes bond to the United States for the faithful performance of his duties, and pays to the Treasurer of the United States the moneys collected, and makes to the Comptroller under whose supervision and control he disburses the funds to the credit of the insolvent bank, a full report of his acts and doings in the premises. In re Chetwood, Pet’r, 165 U. S. 443, 458, 17 S. Ct. 385, 41 L. Ed. 782; United States v. Weitzel, 246 U. S. 533, 38 S. Ct. 381, 62 L. Ed. 872, and eases cited in each opinion. Coming to the consideration of the second case, No. 2569, it is confined within a comparatively narrow compass, and really involves the question of the right to appeal from an order refusing to grant an injunction. What court should exercise this power — that is, the court that declined the injunction, or the one to which the appeal is proposed to be taken, and what is the authority of courts acting in such circumstances ? The relief asked is based upon a written motion made by the parties who failed to secure an injunction, to preserve the status quo, and stay the proceedings sought to be enjoined. Whatever the proposed action may be termed technically, at least it is but an application to grant an appeal from an order refusing an injunction, which in effect seeks to stay or enjoin the doing of something when nothing has been done. The novelty of this situation would seem to be a sufficient answer to the same, save that the statute (Judicial Code, 1911, § 129, with amendments Rose’s Fed. Pro. Sees. [3d Ed.] § 612, Hopkins’ Judicial Code [2d Ed.] §■ 129), in terms provide for such an appeal. Provision for appeals from orders refusing injunctions was apparently first made by Act Feb. 18, 1895 (28 Stat. 666). By subsequent Act of June 6, 1900 (31 Stat. 660), and a still later Act of April 14, 1906 (34 Stat. 116), the provision for appeals from orders refusing injunctions was omitted, and next appeared in Judicial Code 1911, § 129 (36 Stat. 1134 [Comp. St. § 1121]), and has remained substantially as at present, though this section has several times been amended. Just the proper procedure for taking appeals from orders refusing to grant injunc< tions, and whether the same should be granted by the trial or the appellate courts, has brought about some divergence of views on the subject. In the railroad tax eases from North Carolina, the District Court sought to afford the relief granted by postponing the day on which the order declining the injunction should have effect, leaving a reasonable time to apply to the Supreme Court for an appeal, if such action should be thought proper. Southern Railway Co. and Other Railroads v. Watts et al., 259 U. S. 576, 42 S. Ct. 585, 66 L. Ed. 1071. The Supreme Court concluded that as it was a matter of which the District Court was advised, and that tribunal was not, the District Court should act upon the application. The case was proceeded with on that theory, the District Court allowing the appeal, which operated in effect to grant the injunction originally asked for, by suspending the collection of the taxes involved pending decision on the merits, and the action of the lower court was subsequently affirmed. The precise conditions were recently before the Supreme Court in the case of Virginian Railway Co. v. United States, and United States v. Virginian Railway Co., 47 S. Ct. 222, 71 L. Ed. —, decided December 13, 1926, and in the latter case, the District Court took the same action that it did in the North Carolina tax cases; that is, granted the appeal from an order declining an injunction. The Supreme Court quite fully reviewed the whole subject of procedure, and held that that court and the District Court alike had the right to grant or refuse the appeal, and that in the particular ease it should have been refused, and not granted, especially as the effect of granting the same operated not only to secure the relief that had been denied on the application for injunction, but because it stayed the enforcement of the order of the Interstate Commerce Commission, which had received the sanction of the District Court by declining the injunction. This decision in the Virginian Railway Cases seems conclusive of this case, as there is nothing peculiar in the circumstances here that calls for the granting of the relief sought in the circumstances. The Comptroller of the Currency had issued an order to proceed with the winding up of the affairs of the insolvent bank, by appointing a receiver and ordering the necessary assessment against the shareholders of the bank, and, the District Court having declined to enjoin this action because of the authority vested in the Comptroller, there was no reason why the court’s action and that of the Comptroller in such circumstances should be stayed. We are not prepared to say that there may not be cases in which the stay should be had, and the appeal granted, but we assume the decision in the Virginian Railway Co. Cases to mean that at least there should be special or unusual conditions making such course proper and necessary at the stage the same was asked for here. Hence we hold that the granting of an appeal from the order refusing the injunction, in the circumstances, was an unwise exercise of the discretion reposed in the court. . Case No. 2558 — Decree affirmed as to matter appealed from. Case No. 2569 — Decree reversed as to matter appealed from. 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

18

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". LOUISVILLE TRUST COMPANY, and Citizens Fidelity Bank and Trust Company, Joint Administrators with the Will Annexed of the Estate of John A. O’Brien, Deceased, Plaintiffs-Appellees, v. Patricia R. SMITH, Defendant-Appellant. No. 14628. United States Court of Appeals Sixth Circuit. Oct. 13, 1961. Walter B. Smith, Louisville, Ky., for defendant-appellant, Patricia R. Smith. Irvin Marcus, R. Lee Blackwell, Bullitt, Dawson & Tarrant, Louisville, Ky., for plaintiff-appellees, Louisville Trust Co. and Citizens Fidelity Bank & Trust Co., joint administrators with the will annexed of the estate of John A. O’Brien, deceased. Before CECIL, WEICK and O’SULLIVAN, Circuit Judges. PER CURIAM. The order of the District Court, from which this appeal was taken, granted plaintiffs’ motion for leave to file an amended reply to defendant’s counterclaim; granted plaintiffs’ motion for summary judgment on defendant’s counterclaim and denied defendant’s motion for leave to file an amended counterclaim. The District Court has not yet made any disposition of plaintiffs’ claim for relief set forth in their complaint which is still pending in that court. Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C. provides the only manner in which the court may direct the entry of a final judgment upon one or more, but less than all claims for relief in an action, namely, upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. The District Court made no such express determination and direction. Without such determination and direction the action was not terminated as to any of the claims for relief and the order appealed from is subject to revision at any time before the entry of judgment adjudicating all of the claims. The order was not, therefore, a final order, but is interlocutory in nature. New Amsterdam Casualty Co. v. United States, 5 Cir., 272 F.2d 754; Gilbertson v. City of Fairbanks, 9 Cir., 253 F.2d 231, 10 Alaska 458. No appeal may be prosecuted from the order until it has become final. 28 U.S.C. § 1291. The motion to dismiss is granted and the appeal is dismissed for lack of jurisdiction. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:

sc_respondent

170

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. GREENE et al. v. LINDSEY et al. No. 81-341. Argued February 23, 1982 Decided May 17, 1982 Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, Powell, and Stevens, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 456. William L. Hoge III argued the cause and filed a brief for appellants. Robert Frederick Smith argued the cause for appellees. With him on the brief was Barry L. Master. Lynn E. Cunningham, filed a brief for the Antioch School of Law et al. as amici curiae urging affirmance. David M. Madway filed a brief for the National Housing Law Project as amicus curiae. Justice Brennan delivered the opinion of the Court. A Kentucky statute provides that in forcible entry or de-tainer actions, service of process may be made under certain circumstances by posting a summons on the door of a tenant’s apartment. The question presented is whether this statute, as applied to tenants in a public housing project, fails to afford those tenants the notice of proceedings initiated against them required by the Due Process Clause of the Fourteenth Amendment. I Appellees Linnie Lindsey, Barbara Hodgens, and Pamela Ray are tenants in a Louisville, Ky., housing project. Appellants are the Sheriff of Jefferson County, Ky., and certain unnamed Deputy Sheriffs charged with responsibility for serving process in forcible entry and detainer actions. In 1975, the Housing Authority of Louisville initiated detainer actions against each of appellees, seeking repossession of their apartments. Service of process was made pursuant to Ky. Rev. Stat. § 454.030 (1975), which states: “If the officer directed to serve notice on the defendant in forcible entry or detainer proceedings cannot find the defendant on the premises mentioned in the writ, he may explain and leave a copy of the notice wdth any member of the defendant’s family thereon over sixteen (16) years of age, and if no such person is found he may serve the notice by posting a copy thereof in a conspicuous place on the premises. The notice shall state the time and place of meeting of the court.” In each instance, notice took the form of posting a copy of the writ of forcible entry and detainer on the door of the tenant’s apartment. Appellees claim never to have seen these posted summonses; they state that they did not learn of the eviction proceedings until they were served with writs of possession, executed after default judgments had been entered against them, and after their opportunity for appeal had lapsed. Thus without recourse in the state courts, appellees filed this suit as a class action in the United States District Court for the Western District of Kentucky, seeking declaratory and injunctive relief under 42 U. S. C. § 1983. They claimed that the notice procedure employed as a predicate to these eviction proceedings did not satisfy the minimum standards of constitutionally adequate notice described in Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950), and that the Commonwealth of Kentucky had thus failed to afford them the due process of law guaranteed by the Fourteenth Amendment. Named as defendants were the Housing Authority of Louisville, several public officials charged with responsibility over particular Louisville public housing projects, Joseph Greene, the Jefferson County Sheriff, and certain known and unknown Deputy Sheriffs. On cross-motions for summary judgment, the District Court granted judgment for appellants. In an unreported opinion, the court noted that some 70 years earlier, in Weber v. Grand Lodge of Kentucky, F. & A. M., 169 F. 522 (1909), the Court of Appeals for the Sixth Circuit had held that constructive notice by posting on the door of a building, pursuant to the predecessor statute to §454.030, provided an adequate constitutional basis upon which to commence an eviction action, on the ground that it was reasonable for the State to presume that a notice posted on the door of the building in dispute would give the tenant actual notice in time to contest the action. Although the District Court recognized that “conditions have changed since the decision in Weber. . . and . . . that there is undisputed testimony in this case that notices posted on the apartment doors of tenants are often removed by other tenants,” App. 41-42, the court nevertheless concluded that the procedures employed did not deny due process in light of the fact “that posting only comes into play after the officer directed to serve notice cannot find the defendant on the premises,” id., at 42. The Court of Appeals for the Sixth Circuit reversed the grant of summary judgment in favor of appellants and remanded the case for further proceedings. 649 F. 2d 425 (1981). Acknowledging that its decision in Weber directed a contrary result, the Court of Appeals examined the doctrinal basis of that decision, and concluded that it rested in part on distinctions between actions in rem and actions in personam that had been drawn in cases such as Pennoyer v. Neff, 95 U. S. 714 (1878); Huling v. Kaw Valley Railway & Improvement Co., 130 U. S. 559 (1889); Arndt v. Griggs, 134 U. S. 316 (1890); Ballard v. Hunter, 204 U. S. 241 (1907); and Longyear v. Toolan, 209 U. S. 414 (1908), and that had been substantially undercut by intervening decisions of this Court. In overruling Weber, the Court of Appeals cited International Shoe Co. v. Washington, 326 U. S. 310 (1945), Mullane, supra, and Shaffer v. Heitner, 433 U. S. 186 (1977), as cases calling for a more realistic appraisal of the adequacy of process provided by the State. Turning to the circumstances of this case and the procedures contemplated by § 454.030, the Court of Appeals noted that while there may have been “a time when posting provided a surer means of giving notice than did mailing, [t]hat time has passed. The uncontradicted testimony by process servers themselves that posted summonses are not infrequently removed by persons other than those served constitutes effective confirmation of the conclusion that notice by posting ‘is not reasonably calculated to reach those who could easily be informed by other means at hand,’ ” 649 F. 2d, at 428, quoting Mullane, supra, at 319. The court held, therefore, that the notice provided pursuant to § 454.030 was constitutionally deficient. We noted probable jurisdiction, 454 U. S. 938 (1981), and now affirm. II A “The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U. S. 385, 394 (1914). And the “right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest,” Mullane, supra, at 314. Personal service guarantees actual notice of the pendency of a legal action; it thus presents the ideal circumstance under which to commence legal proceedings against a person, and has traditionally been deemed necessary in actions styled in personam. McDonald v. Mabee, 243 U. S. 90, 92 (1917). Nevertheless, certain less rigorous notice procedures have enjoyed substantial acceptance throughout our legal history; in light of this history and the practical obstacles to providing personal service in every instance, we have allowed judicial proceedings to be prosecuted in some situations on the basis of procedures that do not carry with them the same certainty of actual notice that inheres in personal service. But we have also clearly recognized that the Due Process Clause does prescribe a constitutional minimum: “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U. S., at 314 (emphasis added). It is against this standard that we evaluate the procedures employed in this case. B Appellants argue that because a forcible entry and detainer action is an action in rem, notice by posting is ipso facto constitutionally adequate. Appellees concede that posting has traditionally been deemed appropriate for in rem proceedings, but argue that detainer actions can now encompass more than the simple issue of the tenant’s continued right to possession, and that they therefore require the more exacting forms of notice customarily provided for proceedings in personam. Appellants counter by conceding that if the particular detainer proceeding was one in which the landlord sought to recover past due rent, personal service would be required by Kentucky law, but argue that such claims are unusual in such proceedings, and that in the case before us the landlord claimed only a right to recover possession. Tr. of Oral Arg. 19-21. As in Mullane, we decline to resolve the constitutional question based upon the determination whether the particular action is more properly characterized as one in rem or in personam. 339 U. S., at 312. See Shaffer v. Heitner, supra, at 206. That is not to say that the nature of the action has no bearing on a constitutional assessment of the reasonableness of the procedures employed. The character of the action reflects the extent to which the court purports to extend its power, and thus may roughly describe the scope of potential adverse consequences to the person claiming a right to more effective notice. But “ ‘[a]ll proceedings, like all rights, are really against persons.’” In this case, appellees have been deprived of a significant interest in property: indeed, of the right to continued residence in their homes. In light of this deprivation, it will not suffice to recite that because the action is in rem, it is only necessary to serve notice “upon the thing itself.” The sufficiency of notice must be tested with reference to its ability to inform people of the pendency of proceedings that affect their interests. In arriving at the constitutional assessment, we look to the realities of the case before us: In determining the constitutionality of a procedure established by the State to provide notice in a particular class of cases, “its effect must be judged in the light of its practical application to the affairs of men as they are ordinarily conducted.” North Laramie Land Co. v. Hoffman, 268 U. S. 276, 283 (1925). It is, of course, reasonable to assume that a property owner will maintain superintendence of his property, and to presume that actions physically disturbing his holdings will come to his attention. See Mullane, supra, at 316. The frequent restatement of this rule impresses upon the property owner the fact that a failure to maintain watch over his property may have significant legal consequences for him, providing a spur to his attentiveness, and a consequent reinforcement to the empirical foundation of the principle. Upon this understanding, a State may in turn conclude that in most cases, the secure posting of a notice on the property of a person is likely to offer that property owner sufficient warning of the pendency of proceedings possibly affecting his interests. The empirical basis of the presumption that notice posted upon property is adequate to alert the owner or occupant of property of the pendency of legal proceedings would appear to make the presumption particularly well founded where notice is posted at a residence. With respect to claims affecting the continued possession of that residence, the application of this presumption seems particularly apt: If the tenant has a continuing interest in maintaining possession of the property for his use and occupancy, he might reasonably be expected to frequent the premises; if he no longer occupies the premises, then the injury that might result from his not having received actual notice as a consequence of the posted notice is reduced. Short of providing personal service, then, posting notice on the door of a person’s home would, in many or perhaps most instances, constitute not only a constitutionally acceptable means of service, but indeed a singularly appropriate and effective way of ensuring that a person who cannot conveniently be served personally is actually apprised of proceedings against him. But whatever the efficacy of posting in many cases, it is clear that, in the circumstances of this case, merely posting notice on an apartment door does not satisfy minimum standards of due process. In a significant number of instances, reliance on posting pursuant to the provisions of §454.030 results in a failure to provide actual notice to the tenant concerned. Indeed, appellees claim to have suffered precisely such a failure of actual notice. As the process servers were well aware, notices posted on apartment doors in the area where these tenants lived were “not infrequently” removed by children or other tenants before they could have their intended effect. Under these conditions, notice by posting on the apartment door cannot be considered a “reliable means of acquainting interested parties of the fact that their rights are before the courts.” Mullane, 339 U.S., at 315. Of course, the reasonableness of the notice provided must be tested with reference to the existence of “feasible and customary” alternatives and supplements to the form of notice chosen. Ibid. In this connnection, we reject appellants’ characterization of the procedure contemplated by §454.030 as one in which “ ‘posting’ is used as a method of service only as a last resort.” Brief for Appellants 7. To be sure, the statute requires the officer serving notice to make a visit to the tenant’s home and to attempt to serve the writ personally on the tenant or some member of his family. But if no one is at home at the time of that visit, as is apparently true in a “good percentage” of cases, posting follows forthwith. Neither the statute, nor the practice of the process servers, makes provision for even a second attempt at personal service, perhaps at some time of day when the tenant is more likely to be at home. The failure to effect personal service on the first visit hardly suggests that the tenant has abandoned his interest in the apartment such that mere proforma notice might be held constitutionally adequate. Cf. Mullane, 339 U. S., at 317-318. As noted by the Court of Appeals, and as we noted in Mullane, the mails provide an “efficient and inexpensive means of communication,” id., at 319, upon which prudent men will ordinarily rely in the conduct of important affairs, id., at 319-320. Notice by mail in the circumstances of this case would surely go a long way toward providing the constitutionally required assurance that the State has not allowed its power to be invoked against a person who has had no opportunity to present a defense despite a continuing interest in the resolution of the controversy. Particularly where the subject matter of the action also happens to be the mailing address of the defendant, and where personal service is ineffectual, notice by mail may reasonably be relied upon to provide interested persons with actual notice of judicial proceedings. We need not go so far as to insist that in order to “dispense with personal service the substitute that is most likely to reach the defendant is the least that ought to be required,” McDonald v. Mabee, 243 U. S., at 92, in order to recognize that where an inexpensive and efficient mechanism such as mail service is available to enhance the reliability of an otherwise unreliable notice procedure, the State’s continued exclusive reliance on an ineffective means of service is not notice “reasonably calculated to reach those who could easily be informed by other means at hand.” Mullane, supra, at 319. III We conclude that in failing to afford appellees adequate notice of the proceedings against them before issuing final orders of eviction, the State has deprived them of property without the due process of law required by the Fourteenth Amendment. The judgment of the Court of Appeals is therefore Affirmed. “Posting” refers to the practice of placing the writ on the property by use of a thumbtack, adhesive tape, or other means. App. 74, 77 (deposition of process servers). Appellants describe the usual method of effecting service pursuant to § 454.030 in the following terms: “The officer of the court who is charged with serving notice in a forcible entry and detainer action, usually a Jefferson County Deputy Sheriff, takes the following steps in notifying a tenant. First, the officer goes to the apartment in an effort to effectuate personal in-hand service. Second, if the named tenant is absent or will not appear at the door, personal in-hand service is made on any member of the tenant’s family over sixteen years of age. Finally, if no one answers the door, a copy of the notice is posted on the premises, usually the door.” Brief for Appellants 3. The Court of Appeals concluded that “[Requiring Kentucky to provide notice by mail when personal service proves infeasible will not be overly burdensome. The cost will be minimal, and the state’s conceded interest in providing a summary procedure for settlement of landlord-tenant disputes will not be seriously circumscribed.” 649 F. 2d, at 428. The court then noted with approval the provisions of the New York counterpart of § 454.030, which provides that when notice is served by posting, a copy of the petition must be sent by registered or certified mail within a day of the posting. Ibid., citing Velazquez v. Thompson, 451 F. 2d 202, 205 (CA2 1971). Shaffer v. Heitner, 433 U. S. 186, 207, n. 22 (1977), quoting Tyler v. Court of Registration, 175 Mass. 71, 76, 55 N. E. 812, 814 (Holmes, C. J.), writ of error dism’d, 179 U. S. 405 (1900). The dissent directs our attention to the “nature and purpose,” of Kentucky’s forcible entry and detainer action. Post, at 457. Such proceedings are designed to offer an expeditious means of determining who is entitled to retain possession of an apartment. But that hardly explains why we may dispense with the constitutional requirement of adequate notice. After all, detainer proceedings, while in some sense “summary,” are proceedings in which issues of fact and law are to be resolved, and important interests in property determined. We can agree with the dissent’s observation that the “means chosen for making service of process . . . must be prompt and certain.” Ibid. But it is difficult to see how, from the perspective of the landlord, any of the likely supplements to the form of service currently provided under § 454.080 will render the procedure markedly less prompt or certain. More significantly, from the perspective of the tenant, it is difficult to see how a means of serving process that fails to afford actual notice in a “not insubstantial” number of cases can be deemed either prompt or certain. The Mary, 9 Cranch 126, 144 (1815). As we noted in Mullane: “The ways of an owner with tangible property are such that he usually arranges means to learn of any direct attack upon his possessory or proprietary rights. Hence, . . . entry upon real estate in the name of law may reasonably be expected to come promptly to the owner’s attention. ... A state may indulge the assumption that one who has left tangible property in the state either has abandoned it, in which case proceedings against it deprive him of nothing,... or that he has left some caretaker under a duty to let him know that it is being jeopardized.” 339 U. S., at 316. Of course, the Mullane discussion of the special notice rules with respect to proceedings affecting property ownership focused on the forms of notice that might be appropriate as a supplement to the direct disturbance of the property itself. But where the State has reason to believe the premises to be occupied or under the charge of a caretaker, notice posted on the premises, if sufficiently apparent, is itself a form of disturbance, likely to come to the attention of the occupants or the caretaker. The depositions before the District Court included the following statements by the process servers: “The children — we had problems with children. They would take [the writs] off. “They never took them off when we were present, but we, you know, assume — the Housing Authority told us that they would take them off, so we always put them up high.” App. 74. “Q. Did you ever see kids pulling them off? “A. Yes. “Q. You did? “A. Uh-huh. “Q. Did you see many? “A. No, not too many. I did see it in one place over there. “Q. Where was that? “A. Village West. “Q. How many times did you see that happen? “A. Well, probably a couple of times.” Id., at 80. “Q. . . . Were you aware of there being any problem with children ripping the Writs off? “A. Oh, we had plenty of trouble. “Q. You had trouble? “A. With kids, yeah. Yeah. “Q. Did you ever see kids ripping them off? “A. Yeah. I have seen them take them off of the door and I would go back and tell them to put it back. They don’t know. They didn’t know. They just— “Q. Were there any particular places where you saw kids ripping them off the doors? “A. Well most of that was in Village West.” Id., at 82. Id., at 76 (deposition of process server). The dissent apparently wishes to dispute the District Court’s finding that “notices posted on apartment doors are often removed,” and farther questions our reliance on the observation in Mullane that the mails are a reliable means of communication — in light of its own observation that “unattended mailboxes are subject to plunder.” Post, at 460. The dissent misconstrues the constitutional standard. In light of the findings of the courts below, we hold only that posted notice pursuant to § 454.030 is constitutionally inadequate. It is not our responsibility to prescribe the form of service that the Commonwealth should adopt. But even conceding that process served by mail is far from the ideal means of providing the notice the Due Process Clause of the Fourteenth Amendment requires, we have no hesitation in concluding that posted service accompanied by mail service, is constitutionally preferable to posted service alone. “Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.” 339 U. S., at 318. See Schroeder v. City of New York, 371 U. S. 208, 213 (1962). Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:

songer_stpolicy

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Edward S. WATTS et al., Appellants, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellee. No. 23608. United States Court of Appeals Fifth Circuit. Aug. 10, 1967. Rehearing Denied Sept. 20, 1967. Sidney Stahl, William Van Dercreek, Ray Besing, Geary, Brice & Lewis, Dallas, Tex., for appellants. Monroe E. Clinton, John B. Webster, Dallas, Tex., Harry G. Silleck, Jr., Thomas W. Evans, New York City, for appellee, Nixon, Mudge, Rose, Guthrie & Alexander, New York City, of counsel. Before GEWIN, COLEMAN, GOLDBERG, Circuit Judges. GOLDBERG, Circuit Judge. This is a class action brought by eight individuals and a corporation (the Holders), who hold 5y2% subordinated income debentures due January 1, 2033, on behalf of all other holders, against the Missouri-Kansas-Texas Railroad (Katy). The Debenture is an unconditional promise to pay 5y2% interest out of income as defined in Article 2 of the Indenture, dated January 1, 1958, made and entered into between the Katy and the New York Trust Company (now the Chemical Bank New York Trust Company) as trustee. The Holders allege that the value of the outstanding debentures is $58,000,000, and that the Katy owes approximately $8,000,000 in current and accumulated unpaid interest. The Holders allege further that the Katy has realized certain gains, including gain from the sale of land ($5,634,389), from income tax refunds ($2,229,858), and from cancellation of indebtedness by the Katy’s acquisition of its own debentures at less than their face value ($14,704,-990), which sums should have been credited as “available income” (a term of art defined in the Indenture; see footnote 2, supra), and used to pay the interest obligation owing on the Debentures. The Katy’s answer interposed two defenses relevant here: first, that the Holders’ pleadings had failed to meet certain conditions precedent for main-taming the suit (see footnote 4, infra), and second, that the Interstate Commerce Commission, and not the district court, had primary jurisdiction of this action. The district court granted the Katy’s motion for judgment on the pleadings (F.R.Civ.P. 12(e)), and it dismissed the cause, without stating its reasons. The Holders appeal. We reverse the district court and hold that the suit may now be maintained, and that jurisdiction over it should be retained by the district court while the questions in the case which concern the Katy’s accounting practices are referred to the Interstate Commerce Commission under the primary jurisdiction doctrine. I. Standing to sue. The Katy argues that the Holders, in order to bring this action, must satisfy Section 6.06 of the Indenture, which requires notice to the trustee, demand upon the trustee to sue by bondholders who hold 25 per cent of the aggregate principal amount of the outstanding bonds, and refusal to sue by the trustee, before the bondholders themselves can sue. With these conditions the Holders have not complied. The Holders rely on Section 6.07 of the Indenture. They argue that Section 6.07 is an exception to Section 6.06, and permits suits by individual bondholders on the “unconditional and absolute” obligation to pay principal and interest, as they become due. We agree with the Holders. The result is compelled by the wording and construction of the Indenture, especially in the light of the long history of cases which reach the same result. It is common for indentures to restrict suit by bondholders unless conditions similar to those in Section 6.06 are met. These restrictions are justified where they prevent rash, precipitate, or harassing suits by bondholders who disrupt corporate affairs by seeking to reach and deal with the security underlying the bond obligations. No such justification exists where a bondholder seeks merely to collect the interest or principal due and owing him under the bond. Courts have recognized this distinction and have limited “no-action clauses” as the provisions setting forth the restrictions on suit are often called) so that they do not restrict suits by individual bondholders for interest or principal due and owing. In Noble v. European Mortgage and Investment Corp., 1933, 19 Del.Ch. 216, 165 A. 157, the Court had before it provisions virtually identical to those in this case. The opinion states in part: “So far as the literal language of the instrument goes, the compulsion upon the bondholders to act first through the trustee is confined only to remedies ‘under or upon this indenture.’ The complainants are not seeking to pursue any rights under the indenture. The last paragraph of the quoted excerpt is quite clear in reserving to the bondholders complete liberty of action to enforce all payments due them whether for principal or coupons so long as the procedure they adopt is not under the indenture. Restrictions of the character found in this indenture are not to be extended by implication. They are effective only so far as they are clear and reasonably free from doubt. * * * Being restrictive of the common law rights of creditors, they are to be strictly construed. * * * The complainants hold interest coupons which are in default. Under the terms of the indenture itself they can assert with respect to such coupons the right of payment and can bring an action to enforce the same. The complainants are creditors, therefore, who possess a right to enforce immediate payment of coupons overdue without recourse to the trustee. * * * This gives them a status entirely unaffected by any supposed limitations which the indenture might be thought to impose upon their right to seek to enforce payment of the principal of the bonds.” 19 Del. Ch. at 221, 165 A. at 159. Halle v. Van Sweringen Corp., 1936, 7 W.W.Harr. 491, 37 Del. 491, 185 A. 236. See Putnam v. Pittsburgh R. Co., 1938, 330 Pa. 210, 199 A. 211; Japha v. Delaware Valley Utilities Co., 1940, 1 Terry 599, 40 Del. 599, 15 A.2d 432. Birn v. Childs Co., Sup.Ct.1942, 37 N.Y.S.2d 689, was a suit to enforce a covenant in the indenture which required the corporation to pay certain sums into a sinking fund. The New York Supreme Court distinguished that case from cases like the present: “This suit is one for the enforcement of a covenant of the indenture, the sinking fund provision, and is not one to enforce payment of the debentures or their coupons, and it thus falls within the scope of [the section of the indenture with requirements similar to those of Section 6.06 here].” 37 N.Y.S. 2d at 696. See Betts v. Massachusetts Cities Realty Co., 1939, 304 Mass. 117, 23 N.E.2d 152. Another major reason for limitation and strict construction of no-action clauses has been the desire to keep the bond, or debenture, negotiable. This aspect of the problem is discussed in Mendelson v. Realty Mortgage Corp., 1932, 257 Mich. 442, 445, 241 N.W. 154, 155: “The rule invoked by defendant has its limitations, 3 R.C.L. 871, which need not be discussed because it is a fact, recognized alike by business and the law, that a bond and its securing mortgage have different functions, are governed by different legal principles, and, for some purposes at least, are separate contracts. * * * If it were not so, there would be no negotiable bonds except by accident, because provisions found in practically all trust mortgages would destroy negotiability. * * * Primarily, a bond is a contract to pay; the mortgage is a separate contract to secure payment. The provisions of the mortgage are incorporated into the bond only in so far as, by proper language, they are made part of the bond and the holder thereby is given notice of them. * * * The incident of negotiability in bonds necessary to enable the business of the country to be transacted and the protection of the bondholder from conditions in a mortgage which he ordinarily does not see, and which are not set out in the bond which he does see, have properly inclined the courts to a struct construction of language which attempts to modify the obligation of and rights under a bond by incorporation in it, through reference, of provisions of the mortgage.” The New York cases have taken this line. Cunningham v. Pressed Steel Car Co., 1933, 238 App.Div. 624, 265 N.Y.S. 256, aff’d per curiam, 1934, 263 N.Y. 671, 189 N.E. 750; Medwin v. 11 West Forty-Second Street, Inc., 1941, 261 App.Div. 721, 27 N.Y.S.2d 551; Lubin v. Pressed Steel Car Co., N.Y.City Ct.1933, 146 Misc. 462, 263 N.Y.S. 433. In Guardian Depositors Corp., v. David Stott Flour Mills, Inc., 1939, 291 Mich. 180, 188, 289 N.W. 122-123, Chief Justice Butzel discusses this problem with candor: “I cannot agree that the reference to the clause referring the bondholder to the trust mortgage in order to ascertain the terms and conditions upon which the bonds were issued and secured is obscure or indefinite. It is inconspicuous because grouped with matters not controlling the right to sue on the bond, but it distinctly refers to the trust mortgage and the ‘terms and conditions on which said bonds are issued and secured.’ We have consistently held that reference in the bond to the mortgage for other conditions was sufficient. * * * “It seems that similar wording in a bond that refers to a mortgage forbidding an action by an individual bondholder has been upheld by both State and Federal decisions in the numerically larger number of cases and jurisdictions where the question has arisen. On the other hand, such mere reference has been held insufficient by the court of New York and Illinois. The two viewpoints are irreconcilable as will be shown by the large number of decisions collated in 108 A.L.R. 88. The Federal courts and probably a numerical majority of the State courts also have carried the doctrine of constructive notice to the ultimate extreme in an endeavor to enforce no-action provisions in the trust instruments. Other cases indicate such reluctance to interfere with the normal right of the bondholder to bring his action that what would be sufficient incorporation by reference in all other instances has been deemed insufficient to incorporate provisions of the mortgage restraining suit on the bonds. * * * Manifestly, both procedures are open to criticism. It seems, however, the more reasonable, ethical and business-like approach is to demand that the restriction upon the right to sue for payment of the note or bond on maturity should appear upon the face thereof. “By thus requiring express notice on the bond, we preclude repeated litigation to determine whether the referential langauge in any kind of bond issue is adequate or not. We eliminate once for all the vexing problem of negotiable corporate bonds, which is not questioned in the instant case. In coming to this conclusion, we need not discuss the prohibitory language of the indenture in the instant case which is believed by some of us to be insufficient to prevent suit on the bond.” The Katy argues a constricted construction of the Debentures and Indenture in order to position the Holders in judicial immobility. It seeks to distinguish the obligation in the debenture here in question, which is to pay interest only when there is “available income”, as defined in Section 2 of the Indenture (see footnote 2, supra), from cases where “a liquidated amount of principal or interest is due and owing” (emphasis added). The Katy argues that Section 6.07 applies only to “unconditional” obligations to pay, and concludes that the duty to pay interest year-by-year is not “unconditional” under these Debentures because the obligation is contingent on there being “available income” as defined by the Indenture. The railroad’s brief states “Section 6.07, relied on by [the Holders] * * *, comes into play if the fixed principal becomes due and is unpaid, or if the fixed interest for the last year of Debentures’ life is due and unpaid, or perhaps if the Officers’ Certificate for any year shows sufficient available income to pay interest but the same is not in fact paid on the following April 1.” By this argument the unqualified terms of 6.07 are read out of it. It is made to lie fallow and jejune, with effect only in the year 2033 or “perhaps” if the officers of the company certify that there is “available income” sufficient to pay interest and then do not pay it. This argument is, as the Holders point out, “indeed * * * a safe and comfortable position” for the Katy. But the argument is unreasonable, especially in the light of the past cases. The Katy does not sit in such a catbird seat. The mere fact that “available income” is defined in the Indenture and not the Debentures does not mean that the right to receive interest is a right arising from the Indenture and calling for a lawsuit only under 6.06. In this situation the rights of the Holders are not subordinate to provisions in the Indenture. The suit stricture in Section 6.06 is on the enforcement of the indenture, but the promise to pay interest out of income is a Debenture obligation and not an Indenture right or duty. The right to sue for interest to the year 2033 and “perhaps” to periods when the Katy’s officers felt like paying dividends, would run counter to the common law and would erode, if not destroy, the negotiability of the bonds. Strictures such as these must be viewed as strids and not chasms. The obligation to pay interest out of income is unconditioned, unstinted, and continuous; the language of Section 6.07 is too broad and general to permit the strained or naive interpretation called for by the Katy. Numerology holds no magic, but it is not merely astrological to point out that when Section 6.07, following 6.06, states: “Nothing contained in this Indenture nor the Debentures shall affect or impair the obligation of the company, which is unconditional and absolute [to pay interest and principal] * * *, or shall affect or impair the right of any holder * * * to receive payment * * * or to institute suit for the enforcement of such payment * * Section 6.07 does not parrot or restate 6.06, but creates a clear exception to it relating to different circumstances. A sodality among Holders is appropriate in enforcing rights in the security for the benefit of the many in order to prevent atomization and fission of the company. But such a unitary concept is not relevant to a simple suit for debt. Suit here is on the Debentures, and not the Indenture. In addition, as discussed more fully in Part II, the securities here in question were issued pursuant to 49 U.S.C.A. § 20b, a 1948 amendment to the Interstate Commerce Act, 62 Stat. 162. The Congressional Declaration of Purpose of the Act states in part: “[I]t is hereby declared to be in aid of the national transportation policy of the Congress, as set forth in the preamble of the Interstate Commerce Act, as amended, in order to promote the public interest in avoiding the deterioration of service and the interruption of employment which inevitably attend the threat of financial difficulties and which follow upon financial collapse and in order to promote the public interest in increased stability of values of railroad securities with resulting greater confidence therein of investors, to assure, insofar as possible, continuity of sound financial condition of common carriers subject to part I of said Act, to enhance the marketability of railroad securities impaired by large and continuing accumulations of interest on income bonds and dividends on preferred stock and to enable said common carriers, insofar as possible, to avoid prospective financial difficulties, inability to meet debts as they mature, and insolvency.” 62 Stat. 162-163; 1948 U.S. Code Congressional Service, p. 170. The very statute which authorized these Debentures sought to enhance marketability of railroad securities. As we have discussed, courts have consistently held that the negotiability, and therefore the marketability, of securities is reduced when no-action clauses are construed to limit suits upon interest obligations. If we here held that a suit for interest due, which is the “unconditional and absolute” right of the Holders under Section 6.07, would almost invariably necessitate a suit under 6.06 merely because “available income” is defined in the Indenture, we would render 6.07 worthless. This interpretation would sap what marketability these securities have and would disdain the national policy behind them. We need not hold that a no-action clause which clearly applied would be invalid. We do hold that in order to raise the issue of the validity of 6.06 in an action for interest due and owing, that section would have to be applicable by some more obvious route than the tortuous and dimly marked path argued for here by the Katy. To reach the question of the validity of collectivization of remedies in a suit like the present, the taint must plainly appear on the debentures. II. Primary jurisdiction. As we have held that the Holders may now sue the Katy for interest which the Holders claim is due and owing, we proceed to the question of what forum or forums the suit should continue in. The Katy argues that the Interstate Commerce Commission should decide the issues calling for the interpretation of its Accounting Classifications, which are, as noted above, incorporated into the procedure for determining “available income.” (See footnote 3, supra). We agree. This action concerns more than the two parties, and “enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body * * *.” United States v. Western Pacific R. Co., 1956, 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126, 132. The decision of these issues by a court and jury would endanger the uniform application of the Interstate Commerce Act and would waste the opportunity to use the experience and expert knowledge of the Interstate Commerce Commission in interpreting regulations which it promulgated to serve policies which it is charged to pursue. The Supreme Court, in Kansas City S. R. Co. v. United States, 1913, 231 U.S. 423, 34 S.Ct. 125, 58 L.Ed. 296, recognized the value of, and indeed, the necessity for, the uniform system of accounting exacted of the railroads by the Commission. In that case, the railroad had spent large sums on improving its lines by replacing certain steeply graded track-age with trackage of a gentler grade. These improvements were financed by successive bond issues as money was required. The railroad also had outstanding an issue of preferred stock, which paid dividends only out of current earnings. The railroad wished to charge the entire sum spent on the improvements to “Additions and Betterments,” which was a capital account. The Commission, on the other hand, held that its accounting procedures required the railroad to deduct from the cost of improvements the estimated replacement cost of the portions of track abandoned, and to charge this replacement cost, less salvage, to the operating expenses account of that year. The railroad attacked the reasonableness of the accounting regulations, and complained that such a great current expense would cut down earnings and prohibit payment of dividends on bonds and preferred stock. Without such payments, the railroad argued, its credit would be impaired, and it would no longer be able to float the succeeding bond issues needed for further improvements. The Supreme Court sustained the questioned accounting regulations of the Commission and emphasized the importance of their uniformity: “The very object of a system of accounts is to display the pertinent financial operations of the company, and throw light upon its present condition. If they are to truly do this, the form must correspond with the substance. In order that accounts may be standardized, it is necessary that the accounts of the several carriers shall be arranged under like headings or titles; and it is obviously essential that charges and credits shall be allocated under the proper headings, — the same with one carrier as with another. Unless ‘Additions and Betterments,’ on the one hand, and ‘Operating Expenses,’ on the other, are to indicate the same class of entries upon the books of one carrier that they indicate upon the books of other carriers, there is no possibility of standardization. So far as such uniformity requirements control or tend to control the conduct of the carrier in its capacity as a public servant engaged in interstate commerce, they are within the authority constitutionally conferred by Congress upon the Commission. There is no direct interference with the internal affairs of the corporation; and if any such interference indirectly results, it is only such as is incidental to the lawful control of the carrier by the Federal authority, and to this the rights of stockholders and bondholders alike are necessarily subject. ****** “ * * * [I]t will be observed that § 20, as originally enacted, authorized the Commission ‘in its discretion, for the purpose of enabling it the better to carry out the purposes of this act, [to] prescribe * * * a period of time within which all common carriers subject to the. provisions of this act shall have, as near as may be, a uniform system of accounts, and the manner in which such accounts shall be kept.’ Congress, when it enacted the Hepburn act in 1906, must have known that the Commission had not as yet found occasion to enforce this provision; and at the same time may be deemed to have contemplated that the authority then for the first time conferred upon the Commission to determine and prescribe the maximum rates to be charged by the carriers for the services to be performed by them furnished a new and more cogent reason for establishing a uniform system of accounts. “Plainly, the lawmaking body recognized the essential distinctions- between property accounts and operating accounts, between capital and earnings; it recognized that the practice of different carriers varied in respect of these matters; and that no system of supervision and regulation would be complete without requiring the accounts of all the carriers to speak a common language.” 231 U.S. at 441— 443, 34 S.Ct. at 130, 58 L.Ed. at 303-304. The Court recognized that the Commission had control over the accounting structure of the railroads, and that this control was vital to proper ratemaking under the Hepburn Act. The issuance of the Debentures here in question demonstrates the full control of i;he Commission over the financial structure of the railroad. On July 15, 1958, the Commission, pursuant to its authority under 49 U.S.C.A. § 20b of the Interstate Commerce Act approved the application of the Katy to “alter and modify” its seven per cent cumulative preferred stock by replacing such preferred stock with 5% per cent 75-year income debentures upon which the interest obligation was not fixed, but was payable only out of such “available income” as the Katy had each year. Missouri-Kansas-Texas Railroad Securities Modification, 1958, 295 I.C.C. 759. The Commission found the modification under § 20b to be in the public interest, to be in the best interests of the carrier, of the holders of all classes of its stock, and of the holders of the obligations affected by the modification, and not adverse to any creditor not directly affected by the modification. These findings are required by § 20b (2) (b)(d). Cf. Schwabacher v. United States, 1948, 334 U.S. 182, 68 S.Ct. 958, 92 L. Ed. 1305. In addition, under § 20b(5), the Commission’s authority was “exclusive and plenary”; and the parties were “relieved from the operation of all restraints, limitations, and prohibitions of law, Federal, State, or Municipal, insofar as [might] * * * be necessary to enable them to make and carry into effect the alteration or modification so approved * * Cf. Schwabacher v. United States, supra. By § 20b(8), “the Commission may from time to time, for good cause shown, make such supplemental orders in the premises as it may deem necessary and appropriate.” The bonds approved by the Commission change the interest-paying obligation from the seven per cent cumulative requirement to a 5% per cent figure payable only out of “available income,” a term defined by reference to the Accounting Classifications of the Commission. The Commission found that the use of the contingent interest feature was important to the financial structure and outlook of the Katy. The Commission stated, 255 I.C.C. at 776: “The public is primarily interested in the maintenance of adequate rail services and sound financial conditions of the carriers. Obviously, the replacement of applicant’s preferred stock and the high dividend accumulation thereon with contingent interest debentures, certificates retirable only from earnings of the company, and common stock would improve its earnings before fixed and contingent charges and its credit rating, and therefore would be in the public interest.” While the doctrine of primary jurisdiction is not of antiquity, it has a respectable geneology and is almost as old as the first of the administrative agencies to which it entrusts reference. In Texas & P.R.C. v. Abilene Cotton Oil Co., 1907, 204 U.S. 426, 440-441, 27 S.Ct. 350, 355, 51 L.Ed. 553, 559, Mr. Justice (later Chief Justice) White said for the Court: “For if, without previous action by the Commission, power might be exerted by courts and juries generally to determine the reasonableness of an established rate, it would follow that, unless all courts reached an identical conclusion, a uniform standard of rates in the future would be impossible, as the standard would fluctuate and vary, dependent upon the divergent conclusions reached as to reasonableness by the various courts called upon to consider the subject of an original question. Indeed, the recognition of such a right is wholly inconsistent with the administrative power conferred upon the Commission, and with the duty, which the statute easts upon that body, of seeing to it that the statutory requirement as to uniformity and equality of rates is observed.” Explaining the history and development of the doctrine, the Court in United States v. Western P. R. Co., supra, said through Mr. Justice Harlan: “The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. ‘Exhaustion’ applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. ‘Primary jurisdiction,’ on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special confidence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. * * * “No fixed formula exists for applying the doctrine of primary jurisdiction. In every ease the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation. These reasons and purposes have often been given expression by this Court. In the earlier cases emphasis was laid on the desirable uniformity which would obtain if initially a specialized agency passed on certain types of administrative questions. * * * More recently the expert and specialized knowledge of the agencies involved has been particularly stressed. See Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576. The two factors are part of the same principle, ‘now firmly established, that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.’ Id. 342 U.S. at pages 574, 575, 72 S.Ct. at page 494. “The doctrine of primary jurisdiction thus does ‘more than prescribe the mere procedural timetable of the lawsuit. It is a doctrine allocating the law-making power over certain aspects’ of commercial relations. ‘It transfers from court to agency the power to determine’ some of the incidents of such relations.” 352 U.S. at 63-65, 77 S.Ct. at 165, 1 L.Ed.2d at 132-133. In Thompson v. Texas Mexican R. Co., 1946, 328 U.S. 134, 66 S.Ct. 937, 90 L.Ed. 1132, the Texas Mexican Railway had an agreement with the Brownsville Railroad permitting Brownsville to' use certain Texas Mexican tracks. Either party could terminate the agreement upon twelve months’ notice. Brownsville went into reorganization in 1933. In 1940 Texas Mexican gave notice of termination of the agreement, but after the 12 months had elapsed, the trustee of the Brownsville continued to use the Texas Mexican tracks, and the latter sued for an injunction. The Supreme Court held that primary jurisdiction resided in the Commission to determine the rights of the parties. The Court reasoned that the Commission controlled the reorganization under § 77 of the Bankruptcy Act, 11 U.S.C.A. § 205; and controlled questions of trackage rights and abandonment of lines under §§ 5(2) and 1(18) of the Interstate Commerce Act, 49 U.S.C.A. §§ 5(2), 1(18). The Court thus emphasized that all of the questions there in issue had been committed by statute to the Commission. Mr. Justice Douglas stated for the Court: “ * * * [I]n a long line of cases beginning with Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co. * * * [supra], it has been held that where the reasonableness or legality of the practices of the parties was subject to the administrative authority of the Interstate Commerce Commission, the court should stay its hand until the Commission had passed on the matter. * * * That course is singularly appropriate here. It is the function of the Commission to determine the terms and conditions under which trackage rights are acquired. If the parties were allowed to by-pass the Commission and litigate the question in the courts, the power to fix the rental under trackage agreements would be shifted from the Commission to the courts and juries. * * * [I]t is one of the Commission’s high functions to protect the public interest against unfair or oppressive financial practices which in the past led to such great havoc and disaster. That policy would be undermined if the carriers could repair to courts for determination of the conditions under which trackage rights could be secured. Then jury verdicts or settlements would take the place of the expert and informed judgment of the Commission.” 328 U.S. at 147-148, 66 S.Ct. at 945, 90 L.Ed. at 1141. Professor Jaffe, in considering the question of what issues should be referred to an agency under the doctrine of primary jurisdiction, states: “The answer, I think, should be grounded in the notion of statutory purpose. If ‘expertise’ be a relevant datum implied in the statutory scheme, it is yet no more relevant than the statute (and the total legal situation in which it is found) makes it. It is undoubtedly an implied aspect of the statutory purpose that a specialized administrative tribunal has been created to deal with problems in a certain area; statutes setting up agencies may be assumed to focus the solution of the problem in terms of the development of special competence. But a grant of power implies a limit, and the simultaneous grant of jurisdiction to the courts or a failure to abolish jurisdiction potentially conflicting may indicate where that limit is. The statutory purpose is seldom sufficiently explicit to resolve the conflict. It becomes necessary to construct a system not in the unmediated term of the dominance of a presumed expertness but in terms of what is necessary to make all the prescribed procedures workable. This system must perforce include concurrent judicial remedies so far as they are taken to survive.” Jaffe, Primary Jurisdiction, 77 Harvard L.Rev. 1037, 1041 (1964). The railroad industry is integrally regulated by the Commission. The economics of railroading, especially in this era of competition from truck and airplane, is not simplistic. Its congeries have exquisitely tangled complexities. At the very least, with the aid of the Commission this problem will be deciphered consistently with all other similarly situated problems. The logoriph of the 144 pages of Accounting Procedures (see footnote 13, infra) will be uniformly solved. We do not suggest that the necessary computations are purely esoteric or arcane to courts, but we know that the Commission has insights and experience denied judges. The subleties of railroad financing, encased in jargon and tucked into the interstices of the administrative scheme, may escape us. The answer to the question of what is income, if given by us, could destroy or impair the rate-making or capital structures of the Katy, whereas the statutory scheme comprehensively commits their superintendent to the Commission. Income relates to rates, and rates relate to competition. The capital structure was designed to add to the length and fullness of days for the Katy. Control over these matters has been ceded to the Commission, in order that an informed, uniform, consistent policy may result. The piecemeal, sporadic decisions by courts should not interfere with or bypass these statutory schemes. Far East Conference v. United States, 1952, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576; Thompson v. Texas Mexican R. Co., supra; Carter v. American Telephone & Telegraph Co., 5 Cir. 1966, 365 F.2d 486, cert. denied 385 U.S. 1008; Maddock & Miller, Inc. v. United States Lines, 2 Cir. 1966, 365 F.2d 98; River Terminals Corp. v. Southwestern Sugar & Molasses Co., 5 Cir. 1958, 253 F.2d 922, remanded on other grounds, 1959, 360 U.S. 411, 79 S.Ct. 1210, 3 L.Ed.2d 1334. See 3 Davis, Administrative Law § 19.01 esp. at 5 (1958). Compare United States v. Radio Corp. of America, 1959, 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354. The Holders argue that they do not here attack the validity or reasonableness of the Commission’s Accounting Procedures. They also argue, citing Great Northern R. Co. v. Merchants’ Elevator Co., 1922, 259 U.S. 285, 42 S.Ct. 477, 66 L.Ed. 943, and Louisiana & A. R. Co. v. Export Drum Co., 5 Cir. 1966, 359 F.2d 311, that the accounting regulations, principles, and practices are clear and easily comprehensible by laymen. These related arguments are of no avail to the Holders. Attacks on the reasonableness of agency regulations are, of course, not the only justifications for exercise of primary jurisdiction. Questions of the interpretation and applicability of statutes and regulations, and other claims which require “the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body” are proper subjects of primary jurisdiction. What is involved is not the narrow matter of challenges against specific regulations or practices, but the broader issue of “protection of the integrity of a regulatory scheme.” Maddock & Miller, Inc. v. United States Lines, supra, 365 F.2d at 101. In addition, the interpretation of the Accounting Procedures is not as simple a matter as Holders contend. In another part of their brief, Holders describe the trial of the lawsuit as they envision it: “From a reading of the Complaint, it is clear that the sole ultimate issue between the parties is whether or not the Appellee wrongfully diverted income of the company to the retained income or surplus account, rather than applying such income to the ‘Available Income’ account. That issue will then, in turn, depend upon whether or not Appellee can justify its use of the income by recognized accounting procedures, either as published in the Accounting Classification of the I.C.C., or in accordance with generally accepted principles of accounting. The determination of the ultimate issue and the subsidiary issue mentioned is a determination of facts. These facts will be established by evidence of the books and records of the company, and the testimony of expert acounting witnesses.” [emphasis added.] The issues involve not only legal interpretation, but factual issues and mixed questions of fact and law involving application of the accounting standards to the facts found). In Great Northern, supra, Mr. Justice Brandéis distinguished between questions answerable by courts and questions properly invoking primary jurisdiction. He said: “When the words of a written instrument are used in their ordinary meaning, their construction presents a question solely of law. But words are used sometimes in a peculiar meaning. Then extrinsic evidence may be necessary to determine the meaning of words appearing in the document. This is true where technical words or phrases not commonly understood are employed, or extrinsic evidence may be necessary to establish a usage of trade or locality which attaches provisions not expressed in the language of the instrument. Where such a situation arises, and the peculiar meaning of words, or the existence of a usage, is proved by evidence, the function of construction is necessarily preceded by the determination of the matter of fact. Where the controversy over the writing arises in a case which is being tried before a jury, the decision of the question of fact is left to the jury, with instructions from the court as to how the document shall be construed if the jury finds that the alleged peculiar meaning or usage is established. But where the document to be construed is a tariff of an interstate carrier, and before it can be construed it is necessary to determine upon evi- ■ denee the peculiar meaning of words or the existence of incidents alleged to be attached by usage to the transaction, the preliminary determination must be made by the Commission; and not until this determination has been made can a court take jurisdiction of the controversy. If this were not so, that uniformity which it is the purpose of the Commerce Act to secure could not be attained. For the effect to be given the tariff might depend, not upon construction of the language, — a question of law, — but upon whether or not a particular judge or jury had found, as a fact, that the words of the document were used in the peculiar sense attributed to them, or that a particular usage existed.” 259 U.S. at 291-292, 42 S.Ct. at 479, 66 L.Ed.at 946-947. The rationale for prior referral of issues to the Commission set forth by Mr. Justice Brandéis applies here. For example, one of the items which the Holders seek to classify as “available income” is a $5,634,389 gain on the sale of land. Account 519 of the Commission accounting regulations covers sale of land. It reads in part: “519 Miscellaneous Income. (a) This account shall include all items, not provided for elsewhere, properly creditable to income accounts during the current year. Among the itmes which shall be included in this account are: * * * Profit from sale of land used for transportation purposes, of noncarrier property, and of securities acquired 'for investment purposes. * * * (b) When the profit from sale of land, noncarrier property, or investment securities other than temporary cash investments, or from the reacquisition of the company’s own bonds, is so material in amount that its inclusion in income account would distort and impair the significance of net income for the year, such profit shall be credited to the appropriate retained income account.” The questions of materiality of income and distortion or impairment of the significance of income are mixed questions of fact and law which require the insights and experience of the Commission for a solution consonant with a unified national policy. Our railroads have suffered fiscal fiascos and redoubtable returns to solvency under the aegis of the Commission. More particularly, the highs and lows of the Katy’s history must have militated in favor of the financial schematics used here by the Commission. The reasons for that use have been accumulated over years of regulation of railroads in general and the Katy in particular. Such reasons are the essence of the specialized knowledge of the Commission, but they are only surmisable by us. “Questions which the courts call ‘law’ may appropriately be determined in the first instance by courts, because uniformity may be secured through review by a single Supreme Court, but the unifying influence of that Court can reach neither factual determination nor the exercise of specialized judgment.” 3 Davis, Administrative Law § 19.02 at 8 (1958). The invocation of primary jurisdiction turns on the facts of the individual case, as noted above. This case involves a great deal more than an attack by one shipper on the reasonableness or interpretation of the tariff for one commodity. Whatever the decision here, the questions of the case penetrate to the center of the Katy’s finances. All aspects of its economy will be affected by the outcome: its ability to meet its financial obligations both senior and junior to those of the Holders, its prospects for raising more public money in the future, the base upon which all of its rates to all of its shippers are determined, and its ability to compete not only with other railroads, but with other modes of transportation. The claims pressed by the Holders are large enough to affect substantially all of the factors here mentioned. Of course the extent of the possible damage is not a reason for deciding in the Katy’s favor but it is a reason for placing the decision in the hands of those charged by Congress to supervise these matters. Administrative agencies are not only adjudicators, but advisers and planners. We are neither narcissistic nor allergic to informed advice. We welcome the opportunity to gain the Commission’s knowledge. The Court’s ultimate decision here will be an informed and understanding one, abating or minimizing the dissonances which might otherwise tamper with national policy here sought to be vindicated. In sum, we hold that plaintiffs may maintain the present suit in district court, but that the district court must refer the questions concerning the Accounting Procedures to the Interstate Commerce Commission. We hold further that the district court should retain jurisdiction over the cause, holding it in abeyance pending the referral to the Commission. E. g., Louisville & N. R. Co. v. Knox Homes Corp., 5 Cir. 1965, 343 F.2d 887. Reversed and remanded. . Seven of the individuals and the corporation are citizens of Washington. The eighth is a citizen of West Virginia. . The Missouri-Kansas-Texas Railroad is incorporated in Missouri, with its principal place of business in Texas. The railroad is popularly known, and is referred to here, as the Katy, from the quasi-acronymic use of the first two letters of the last two words in its name: Kansas-Texas. . Article 2 reads in part: “Section 2.01. So long as there are any Outstanding Debentures, Available Income of the Company shall be determined for each calendar year, beginning with the calendar year 1958, not later than March 20 of the following year. All computations of Available Income shall be on a calendar year basis and all such computations, together with all computations in respect of other accounting terms used herein, shall (to the extent not otherwise expressly provided herein) be made in accordance with accounting performed pursuant to the Accounting Classfieations of the Interstate Commerce Commission or other Federal authority having similar jurisdiction in the premises at the time in force, or, to the extent not so governed, in accordance with generally accepted principles of accounting: provided, however, that accruals for income taxes shall always be deducted before arriving at Income Available for Fixed Charges whether or not such Accounting Classifications so provide. For the purposes of this Article Two, ‘wholly owned subsidiaries’ shall mean corporations engaged primarily in transportation, all of the voting stock of which, except directors’ qualifying shares, is owned directly or indirectly by the Company during the entire year in question.” . “Section 6.06. No holder of any Debenture or coupon issued hereunder shall have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law for the enforcement of this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (1) such holder previously shall have given to the Trustee written notice of default and of the continuance thereof, and (2) the holders of not less than 25% in aggregate principal amount of the Outstanding Debentures shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name, and shall have offered to the Trustee reasonable indemnity or security against the costs, expenses and liabilities to be incurred therein or thereby, and (3) the Trustee after receipt of such notice, request and offer of indemnity shall have unreasonably neglected or refused to institute any such action, suit or proceeding, and (4) no directions inconsistent with such written request shall have been given the Trustee pursuant to Section 6.09 of this Article Six; it being understood and intended, and being expressly covenanted by the taker and holder of every Debenture issued hereunder with every other taker and holder and the Trustee, that no one or more holders of Debentures or coupons shall have any right in any manner whatever by virtue or by availing of any provisions of this Indenture to affect, disturb or prejudice the rights of the holders of any other of such Debentures or coupons or to obtain or seek to obtain priority over or preference to any other such holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all holders of oustanding Debentures and coupons. For the protection and enforcement of the provisions of this Section 6.06 each and every Debenture holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.” . “Section 6.07. Nothing contained in this Indenture or in the Debentures shall affect or impair the obligation of the Company, which is unconditional and absolute, to pay the principal of and interest on the Debentures as therein promised, or shall affect or impair the right of any holder of a Debenture to receive payment of the principal of and interest on such Debenture on or after the respective due dates thereof, or to institute suit for the enforcement of such payment on or after such respective dates.” . The relevant provisions in Noble are as follows: “No holder of any bond or coupon issued hereunder shall have any right to institute any action or proceeding at law or in equity upon or in respect of this indenture, or for the execution of any trust or power hereof, or for any other remedy under or upon this indenture, without having given to the Trustee written notice of a default hereunder and of its continuance as herein-above provided, nor unless also the holders of twenty-five per cent (25%) in amount of the bonds then outstanding hereunder, shall have made written request of the Trustee to act hereunder and have afforded it reasonable opportunity so to act, nor unless also they shall have offered security satisfactory to the Trustee against all costs, expenses and liabilities. Such notification, request and offer of indemnity are declared to be conditions precedent in every case to the obligation of the Trustee to take any action on account of any default under this indenture, and to any action or cause of action by any holder under said bonds and coupons and this indenture, it being understood that no one or more holders of bonds and coupons shall by his or their action disturb the lien of this indenture, or enforce any right hereunder, and that all proceedings at law or in equity shall, subject to the provisions of Section 2 of Article IV hereof and of Section 1 of this Article VI, be had for the equal benefit of all holders of outstanding bonds and coupons. “Nothing in this Section or elsewhere in this indenture or in the bonds or in the coupons attached thereto shall affect or impair the obligation of the Company, which is unconditional and absolute, to pay the principal and interest of the bonds to the respective holders of the bonds and to the respective holders of the coupons attached thereto, at the respective due dates in such bonds and coupons stated, nor affect or impair the right of action, wlich is also absolute and unconditional, of such holders to enforce such payment.” 19 Del.Ch. at 219, 165 A. at 158. . The court had this to say about the validity of no-action clauses: “Restrictive or no-action clauses have been inserted in corporate mortgages and trust indentures for years. In so far as they prevent individual holders from getting special advantages for themselves and protect the rights and security of all holders as a class, and also in so far as they afford the trustee notice and an opportunity for examination, they serve a highly useful purpose and have been uniformly sustained, even though sometimes said to be not favored and to be strictly construed, but no case has been cited or found which holds that such a clause prevents such a suit as is here brought under such circumstances as are here disclosed.” 37 N.Y.S.2d at 696. . The Katy’s brief notes that it does not claim that the ICC has primary jurisdiction to enforce the contracts here in question, but merely to decide “questions involving its own [accounting] regulations.” . Senior to this preferred stock was $59,-112,019 of unmatured funded debt and $34,951,369 of equipment obligation. Junior to the preferred stock was 808,971 shares of no-par common with a stated value of $84.42 per share. 295 I.C.C. at 760. . That the interpretation of “available income” is important to obligations both senior and junior to the bonds in issue can be seen from Section 2.03 of the Indenture : “Section 2.03. Available Income for each calendar year, computed in accordance with Sections 2.01 and 2.02 of this Article Two, shall be applied or set aside or made available on April 1 of the following year, to the extent that the same shall suffice therefor, for the following purposes and in the following order: (1) If the Board of Directors of the Company shall so determine, to the creation of, or to the credit of, a Capital Fund to be applied to, or to provide for, or to reimburse the treasury of the Company for, payments which shall become due subsequent to January 1, 1958 on or for (A) Capital Investments included within the accounts of the Interstate Commerce Commission’s Uniform System of Accounts presently entitled Hoad and Equipment Property, Improvements on Leased Property, and Miscellaneous Physical Property, and numbered Accounts 731, 732 and 737, or such substituted accounts as may at the time be in effect, but including in such Capital Investments initial and principal payments upon equipment leased under equipment trusts or purchased under conditional sale agreements only to the extent that such payments during any calendar year shall exceed depreciation of all equipment charged against income for such calendar year, or (B), expenditures of wholly owned subsidiaries of the Company which, if made directly by the Company for the same purposes in respect of its own properties, would be chargeable to said accounts; provided, however, that (1) the amount set aside in the Capital Fund out of Available Income for any calendar year shall not exceed the sum of $2,000,000 or 2y¡% of the Railway Operating Revenues of the Company and its wholly owned subsidiaries for such calendar year, whichever is the greater, plus the amount, if any, by which Available Income applicable to such Capital Fund for the last preceding calendar year shall have been less than the maximum amount permitted for the Capital Fund for such year; and (ii) the amount of the Capital Fund which shall be unused or unappropriated at any one time shall not exceed $4,000,000; (2) Subject to the limitations set forth in Section 2.05 of this Article Two, any then remaining Available Income for such calendar year shall be applied, or set aside for application during the then current calendar year, to the payment into any contingent sinking fund or sinking funds, which may be either cumulative or noncumulative, of. amounts provided for in respect of any securities or obligations now or hereafter issued or incurred by the Company which may require such payment out of such remaining Available Income; (3) Any then remaining Available Income for such calendar year shall be applied on such April 1 to the payment of the instalment of interest on the then outstanding Debentures payable on that date; (4) Any then remaining Available Income for such calendar year shall be applied on such April 1 to the payment of unpaid accumulated interest, if any on the outstanding Debentures; (5) Any then remaining Available Income for such calendar year shall be applied on such April 1 to the payment of amounts, if any, which shall then be required by the terms of the Sinking Fund provided for in Section 3.02 of Article THREE hereof ; and (6) Any then remaining Available Income for such calendar year may be applied at any time and from time to time for any proper corporate purpose of the Company. . In United States v. R.C.A., the Court held that the Federal Communications Act had not so displaced the Sherman Act that primary jurisdiction over antitrust issues had to be given the Federal Communications Commission in an antitrust action against R.C.A. The Court said in part: “While the television industry is also a regulated industry, it is regulated in a very different way. That difference is controlling. Radio broadcasters, including television broadcasters * * * are not included in the definition of common carriers in § 3(h) of the Communications Act, 47 U.S.C. § 153(h), as are telephone and telegraph companies. Thus the extensive controls, including rate regulation, of Title II of the Communications Act, 47 U.S.C. §§ 201-222, do not apply. Television broadcasters remain free to set their own advertising rates. As this Court said in Federal Communications Com. v. Sanders Bros. Radio Station, 309 U.S. 470, 474, 60 S.Ct. 693, 84 L.Ed. 869. ‘In contradistinction to communication by telephone and telegraph, which the Communications Act recognizes as a common carrier activity and regulates accordingly in analogy to the regulation of rail and other carriers by the Interstate Commerce Commission, the Act recognizes that broadcasters are not common carriers and are not to be dealt with as such. Thus the Act recognizes that the field of broadcasting is one of free competition. The sections dealing with broadcasting demonstrate that Congress has not, in its regulatory scheme, abandoned the principle of free competition as it has done in the case of railroads * * * “Thus there being no pervasive regulatory scheme, and no rate structures to throw out of balance, sporadic action by federal courts can work no mischief. The justification for primary jurisdiction accordingly disappears.” 358 U.S. at 348-350. 79 S.Ct. at 466, 3 L.Ed.2d at 364-365. . United States v. Western P. R. Co., supra, 352 U.S. at 64, 77 S.Ct. at 165, 1 L.Ed.2d at 132. . The Accounting Classifications of the Commission referred to in the Indenture appear at 49 C.F.R. Part 10, entitled Uniform System of Accounts for Railroad Companies. They comprise 144 pages. Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_classact

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether the case is described in the opinion as a class action suit. If so, the opinion should specifically indicate that the action was filed as a representative of a class or of "all others similarly situated". Joanne GLUS et al., Plaintiffs, v. G. C. MURPHY COMPANY, Defendant, Appellee-Cross Appellant, and Retail, Wholesale and Department Store Union, Local # 940, Defendant, and International Union of Wholesale and Department Store Union, AFL-CIO, Defendant, Appellant-Cross Appellee. Nos. 76-1864, 76-1865. United States Court of Appeals, Third Circuit. Argued Feb. 22, 1977. Decided Aug. 8, 1977. As Amended Nov. 9, 1977. Robert Markewich, Markewich, Rosenhaus, Markewich & Friedman, New York City, for Joanne Glus et al., plaintiffs. J. M. Maurizi, Balzarini, Walsh & Maurizi, Pittsburgh, Pa., for appellant-cross appellee, Intern. Union of Wholesale and Dept. Store Union, AFL-CIO. Robert H. Stevenson, Anderson, Moreland & Bush, Pittsburgh, Pa., for appelleecross appellant, G. C. Murphy Co. Before ADAMS, BIGGS and HUNTER, Circuit Judges. OPINION OF THE COURT BIGGS, Circuit Judge. This case raises a number of difficult questions regarding contribution between the defendants in actions brought under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq. and the Equal Pay Act of 1963 (Equal Pay Act), 29 U.S.C. §§ 201 et seq. I. FACTS The appeal and cross-appeal before us began as a class action brought by 19 named plaintiffs on behalf of all females in the employ of appellee-cross appellant G. C. Murphy Co. (Murphy) since 1964. Named as defendants were Murphy; the Retail, Wholesale and Department Store Union, Local # 940 (Local 940); and the International Union of Wholesale and Department Store Union, AFL-CIO (International). In the first count of their complaint plaintiffs alleged, inter alia, that Murphy, Local 940, and the International had violated Title VII by maintaining under collective bargaining agreements entered into by the defendant labor organizations and Murphy separate job classifications, pay scales, and seniority systems for male and female employees of Murphy’s McKeesport, Pennsylvania, warehouse. In the second count of their complaint plaintiffs alleged that Local 940 and the International violated their duty of fair representation imposed upon them by the National Labor Relations Act and the Labor-Management-Relations Act in acquiescing and joining in the discriminatory practices which formed the basis of their Title VII complaint. After Murphy, the International and Local 940 filed answers to the plaintiffs’ complaint. Murphy filed a cross claim on August 19, 1971, for a judgment that if there be liability to the plaintiffs the defendant labor organizations were solely liable and that judgment be entered for Murphy over and against Local 940 and the International for any amount recovered by the plaintiffs against Murphy. The basis of Murphy’s cross claim was that the allegedly discriminatory practices were the result of demands made by the unions in the course of collective bargaining and were acceded to in good faith by Murphy. On July 14,1972 the district court granted class status and certified the class as being “all females who were employed at the G. C. Murphy Company warehouse and who were included in the unit covered by the labor union contracts at any time between July 1, 1965 and June 30, 1971.” At the same time the court approved a notice of settlement between Murphy and the plaintiffs. The court further ordered a hearing concerning the proposed settlement on October 2, 1972 which “any person may attend to inform the Court of any matter pertaining to these proceedings . . . .” The terms of the settlement provided that Murphy would pay $548,000 to the plaintiffs and an additional $100,000 in attorneys’ fees to plaintiffs’ counsel. The payment was to be made in three instalments with 6 per cent interest on the deferred payments. Also, pursuant to the settlement agreement plaintiffs amended their complaint to include a claim only against Murphy for violation of the Equal Pay Act of 1963. (68a). $100,000 of the $548,000 settlement was allocated to the Equal Pay Act claim. The remaining $448,-000 was allocated to the Title VII claim. A hearing was held on October 2, 1972 concerning the proposed settlement. Present at the hearing, in addition to plaintiffs’ and Murphy’s counsel, was Joseph M. Maurizi, Esquire, a member of the bar, representing both Local 940 and the International. The Court inquired whether there was any objection to the settlement. Mr. Maurizi did not object. Murphy proceeded on its claim for contribution, and ultimately settled its claim against Local 940 for $4,146, the total amount in Local 940’s treasury. Trial was held on the remaining issue, Murphy’s claim for contribution against the International and Teamster’s Local 249. Upon the conclusion of the trial the district court found both Murphy and the International equally responsible for the complained of sex discrimination. The district court based its finding on evidence that the International participated in the collective bargaining of the 1965 and 1968 contracts through one Burberg, the International Representative. Burberg, as the “International Representative” signed the collective bargaining agreement; and also participated in Local 940’s affairs including grievance procedures. With regard to Burberg’s participation in the negotiations of the discriminatory agreements the district court found: “Burberg may be appropriately characterized as the most experienced person on the Union’s side of the 1965 and 1968 negotiating table. (Tr. 204) [410a]. It may also be concluded that because Local 940 did not have an attorney who participated in the 1965 and 1968 negotiations, the union turned to Burberg for counseling on the legality of the negotiations. (Tr. 206, 268) [413a, 475a]. The attorney counseling Murphy at the contract negotiations occasionally met privately with Burberg to discuss union matters. (Tr. 206) [413a]. And during the negotiations, union officials would privately consult Burberg for his opinion on the various aspects of the negotiations (Tr. 268) [475a], and Burberg’s opinion generally was adopted by the union at the negotiation table.” 141a-142a.* * The district court further found Burberg to be acting within the scope of his agency or representative status of the International. 142a-145a. The court determined that Murphy and the Labor organizations, the International and Local 940, which had settled, were equally at fault, and so apportioned the Title VII share of the settlement with the plaintiffs. 176a. The district court excluded the $100,000 from the amount to be allocated for contribution ruling that a labor organization could not be liable under the Equal Pay Act. The court found the settlement between Murphy and the plaintiffs to span a period of time beginning July 1, 1965 and ending June 30, 1971, a period of 72 months. 177a. The court found the union collectively liable for $224,-000, 50% of the plaintiffs’ $448,000 Title VII recovery. Id. The International’s share of the responsibility for the Title VII recovery was 6%2 since it was for 67 months of the 72 month period that the International and Local 940 represented Murphy’s employees. Id. Thus, the International’s liability for the Title VII claim was $208,444, or 67/72’s of $224,000. Id. For the purpose of contribution attorneys’ fees were apportioned. The district court determined that of the $100,-000 attorneys’ fees $81,752 was attributable to the Title VII claims. This was done by taking the ratio of the Title VII recovery, or $448,000, to total recovery, or $548,000, and the total amount of attorneys’ fees: Title VII Recovery ($448,000) = Title VII Attorneys’ Fees Total Recovery ($548,000) Total Attorneys’ Fees ($100,000) Id. The International’s contribution to the attorneys’ fees for the Title VII recovery was based on the same percentage, 67/72 used to determine its Title VII contribution. Thus, the court below found the International liable for $38,039, 67/72’s of $40,876, 50% of the Title VII attorneys’ fees, or $38,039. Credited against the International’s liability was the $4,146 settlement Murphy received from Local 940. A judgment in favor of Murphy and against the International was entered in the sum of $242,337 on April 29, 1976. II. ISSUES OF LAW A. Introduction The International in its appeal and Murphy in its cross-appeal have raised a number of questions regarding the disposition of the case in the district court. The first issue raised on appeal by the International concerns the question of whether the district court had subject matter jurisdiction over Murphy’s claim for contribution from the International under Title VII. The International contends that since it had not been named by the plaintiffs in their complaint to the Equal Employment Opportunity Commission (EEOC) the district court lacked subject matter jurisdiction to proceed with Murphy’s cross-claim. This problem recently came to the attention of this Court in Canavan v. Beneficia1 Finance Corp., 553 F.2d 860 (3d Cir., filed Mar. 23,1977). Although the Canavan Court discussed various theories of jurisdiction it was not able on the record before it to reach full resolution of the jurisdictional issue. Murphy in its cross-appeal has raised the issue of whether the district court erred in refusing to allow contribution for its liability under the Equal Pay Act of 1963, 29 U.S.C. §§ 201 et seq. B. Jurisdictional Issue We begin with the well established doctrine that the requirements set forth in 706(f)(1) of Title VII are jurisdictional. See Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 246 n. 8 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975). It is also established doctrine that a charge must be filed against a party with the EEOC before an action in the district court can be commenced. Id.; EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1092-93 (6th Cir. 1974); Le Beau v. Libbey-Owens-Ford Co., 484 F.2d 798, 799 (7th Cir. 1973); Textile Workers, Local 179 v. Federal Paper Stock Co., 461 F.2d 849, 851 (8th Cir. 1972); Jefferson v. Peerless Pumps Hydrodynamic, 456 F.2d 1359 (9th Cir. 1972); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). The International .argues that the district court was without jurisdiction to hear Murphy’s cross-claim for contribution because the plaintiff failed to charge the International before the EEOC. Murphy disputes this contention on three grounds. 1) The International was, in fact, named in the plaintiff’s charge to the EEOC; 2) It was unnecessary for the plaintiffs to name the International because a charge was filed against the International’s agent Local 940; and 3) The Federal Rules of Civil Procedure confers jurisdiction upon the district court to hear Murphy’s cross-claim. We turn first to the opinion of the district court. The district court held that it had subject matter jurisdiction over Murphy’s cross-claim for contribution against the International relying upon Torockio v. Chamberlain Mfg. Co., 51 F.R.D. 517 (W.D.Pa.1970), written by then District, now Circuit, Judge Weis. In Torockio, plaintiff charged in a complaint to the EEOC that her employer and union local engaged in sex discrimination. She ultimately brought suit in district court against the local and the employer. The employer sought to add either under F.R. Civ.P. 14 or 19 as a defendant the international union which was signatory to the labor contract which was an important aspect of the • plaintiff’s case. The International, through the Local, objected to its addition into the proceedings because it had not been named in the complaint to the EEOC. The district court, although recognizing the line of cases holding that plaintiff cannot sue under Title VII unless the defendant had been charged in a complaint to the EEOC, nevertheless ordered the International joined. The court noted: “There can be no quarrel with the desirability of such a procedure or the necessity of enforcing compliance by the parties. The situation presented here, however, is somewhat different. It is not the plaintiffs who seek to join the additional party; it is one of the defendants which was not given or could not be given such a right before the Commission. In essence, the question is whether the Civil Rights Act by implication deprives the defendants of their very valuable rights under the Federal Rules of Civil Procedure to have a resolution of all facets of the dispute in one proceeding — the ‘just, speedy and inexpensive determination of every action’ as Rule 1 phrases it. “We find nothing in the Civil Rights Act which would supplant the Rules of Civil Procedure in suits under the Act which are in the courts. $ if: sfc $ $ sfc “We conclude, therefore, that there is no conflict between the jurisdictional requirements of the Act requiring the plaintiff to name all potential defendants as respondents in the administrative proceedings and the Rules of Civil Procedure which allow the defendants to bring appropriate parties into the case once suit has been filed in the district court.” Id. at 518-519. The district court in the instant case reasoned that if the plaintiffs failed to name the International in its complaint under Torockio Murphy could have impleaded the International. The court noted that Murphy, like the employer in Torockio, was unable to join the International as a party before the EEOC, and concluded, “The fact that the International may have not been named before the EEOC does not preclude this court from exercising subject matter jurisdiction over it where its joinder could be accomplished through Rule 14 if it had not been named as a defendant and, more importantly, where its presence is essential to the disposition of the remaining issue in this lawsuit — Murphy’s right of contribution from the International.”3 *** It seems almost unnecessary to state that the Federal Rules of Civil Procedure cannot be used to expand the subject matter jurisdiction of the district courts. See F.R.Civ.P. 82 which provides that the Federal Rules of Civil Procedure “shall not be construed to extend or limit the jurisdiction of the United States district courts . . .” We have great difficulty with a statutory scheme of federal subject matter jurisdiction being construed as to make it consistent with the Federal Rules of Civil Procedure. We recognize, as did Judge Weis in his opinion in Torockio, that there is a great interest in “a resolution of all facets of the dispute in one proceeding.” Torockio, supra, at 519. However, as the Supreme Court has cautioned: “ ‘The value of efficiency in the disposition of law suits by avoiding multiplicity may be readily conceded, but that is not the only consideration a federal court should take into account in assessing the presence or absence of jurisdiction.’ ” Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 2420, 49 L.Ed.2d 276 (1976), quoting Kenrose Mfg. Co. v. Fred Whitaker Co., 512 F.2d 890, 894 (4th Cir. 1972). At oral argument Murphy’s counsel attempted to characterize the district court’s jurisdiction over its cross claim as “ancillary jurisdiction.” We take it that counsel considered that there was jurisdiction as between Murphy and the International or the plaintiffs and the International because it arose from the same transaction as did the plaintiffs’ claim against Murphy for which there was subject matter jurisdiction. Murphy’s contention seems to be an attempt to deduce a theoretical foundation for finding subject matter jurisdiction without direct reliance upon the Federal Rules. Although subject matter jurisdiction cannot be expanded by the Federal Rules it is well established that the doctrine of ancillary jurisdiction may be applied to a cross-claim brought pursuant to F.R.Civ.P. 13(g) or impleader under F.R.Civ.P. 14. Ancillary jurisdiction is based upon the concept that once the court has jurisdiction over the claim it may also adjudicate claims arising from the same transaction or occurrence without an independent basis for jurisdiction. We cannot at this time rest our decision on ancillary jurisdiction for two reasons. First, in, Aldinger v. Howard, supra, the Supreme Court cast grave doubts whether ancillary jurisdiction may be extended to situations where there is no independent basis for subject matter jurisdiction over a party. We recognize, however, that Aldinger did deal with pendent jurisdiction and could be constructed as being limited to 42 U.S.C. § 1983, 28 U.S.C. § 1343(3) contexts. Second, this case does not present either of the typical situations for ancillary jurisdiction. First, it was the plaintiffs that named the International in their complaint and not Murphy impleading under Rule 14. Second, if the International was improperly brought into the action by the plaintiffs, it is doubtful whether the International could be considered a “co-party” for the purposes of F.R.Civ.P. 13(g). We cannot accept ancillary jurisdiction as applicable in the instant case and in our opinion the Federal Rules of Civil Procedure cannot expand the jurisdiction of the district court. It is necessary, therefore, to consider Murphy’s contention that the district court had subject matter jurisdiction over its cross-claim against the International on the grounds that the International had, in fact, been named in the plaintiffs’ complaint to the EEOC. Murphy also argues that it was necessary for the plaintiffs to name the International because a charge was filed with the EEOC against the International’s agent Local 940. We first address ourselves to Murphy’s contention that, in fact, the International had been named in the plaintiffs’ complaint to the EEOC. In its opinion, the district court discussed this issue but was unable to reach a satisfactory resolution of the dispute, deciding instead that it was unnecessary for the International to be charged. The district court made no finding of fact as to whether the International was named in the charge to the EEOC. (132a). It is well established appellate procedure that when a district court fails to make a necessary finding of fact the Court of Appeals will be required to remand the case unless an alternative means to reach a full resolution is available. See 5A Moore’s Federal Practice, 152.06[2]. Since, as indicated above, this Court disagrees with the district court’s resolution of the jurisdictional issue, we believe that the factual dispute should be resolved by the district court, unless other grounds set out hereinafter suffice. Murphy next argues that it was unnecessary for the plaintiffs to name International in a complaint to the EEOC because they filed a charge against Local 940, who, Murphy contends is an agent of the International. The district court reached Murphy’s argument based on the agency theory but concluded it was unable to base jurisdiction on agency. See 133a-134a. The district court stated that it would not be necessary to name a party before the EEOC if 1) there was substantial, if not complete identity of the parties, or 2) the unnamed had an opportunity to actually engage in the conciliation process. The court found neither exception present in the instant case. While we can perceive no fault in the findings, we conclude that sole reliance upon such factors is too strict. See Canavan v. Beneficial Finance Corp., supra. We believe that the jurisdictional requirements for bringing suit under Title VII should be liberally construed. See Canavan v. Beneficial Finance Corp., supra, citing Evans v. Sheraton Park Hotel, 164 U.S.App.D.C. 86, 503 F.2d 177 (1974). In Evans it was stated: “We do not believe that the procedures of Title VII were intended to serve as a stumbling block to the accomplishment of the statutory objective. To expect a complainant at the administrative stage, usually without aid of counsel, to forsee and handle intricate procedural problems which could arise in subsequent litigation, all at the risk of being cast out of court for procedural error, would place a burden on the complainant which Congress neither anticipated nor intended.” Id. at 183. The purpose of requiring an aggrieved party to resort first to the EEOC is twofold: to give notice to the charged party and provide an avenue for voluntary compliance without resort to litigation. See generally, Le Beau v. Libbey-Owens-Ford, supra; Fekete v. U. S. Steel Corp., 424 F.2d 331, 334 (1970); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969). As the Evans court noted much of the initiation of charges with the EEOC is done by laymen, as was true in the instant case. We cannot believe Congress intended that a person filing charges should accurately ascertain, at the risk of later facing dismissal of their suit, at the time the charges were made, every separate entity which in some way may have violated Title VII. In the instant case, Glus in her complaint to the EEOC charged her employer and her local union with sex discrimination. Whether she could foresee at that stage in the proceedings the necessity and desirability of adding the International we cannot say. It would seem reasonable from the standpoint of the complainant that if voluntary compliance could not be obtained through the EEOC from her employer or her local union the addition of the International would make little, if any, difference. It should be noted that Article VIII, Section 1 of the International’s Constitution provides, in part, “The membership of the Retail, Wholesale and Department Store Union shall function through locals chartered by International Executive Board . . .” Of course, we do not suggest that where it can reasonably be expected full compliance will not be required. Factors which we believe the district court should look to are 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Consideration of these factors should be initially in the hands of the district court. The goal of conciliation without resort to the already overburdened federal courts is of great importance and should not be lost. However, equally important is the availability of complete redress of legitimate grievances without undue encumbrance by procedural requirements especially when demanding full and technical compliance would have no relation to the purposes for requiring those procedures in the first instance. In our view the district court should evaluate the failure to name the party before the EEOC by consulting the four factors discussed supra. We, therefore, remand the ease at bar to the district court. The district court on remand should reconsider Murphy’s contention that the plaintiffs in fact named the International in the charge to the EEOC. If the court concludes that it is unable to determine whether the International had in fact been named, or it finds that International had not been named in the charge, it should determine, in a manner consistent with the four factors we have outlined above, whether compliance was unnecessary. In respect to these alternatives the court may receive further evidence if it shall deem such course appropriate. C. Equal Pay Act Issue In its cross-appeal Murphy has made numerous contentions regarding the district court’s refusal to find the International liable for contribution for violation of the Equal Pay Act, 29 U.S.C. § 206(d). Murphy has raised the same contentions in its cross-appeal in Denicola v. G. C. Murphy Co., supra, decided this day. In light of our remand in this case and our opinion in Denicola, we deem it unnecessary to comment further. In view of our disposition, it would not be appropriate to address the other contentions raised by the parties, at least at this time. III. CONCLUSION The case will be remanded to the district court for further proceedings consistent with this opinion. . Teamster’s Local 249 was the successor collective bargaining agent of Local 940. A class action was brought against Murphy and Local 249 for inter alia, sex discrimination in violation of Title VII based on the failure to retroactively rectify disparate pay scales between Murphy’s male and female employees and Local 249’s refusal to accept Murphy’s offer of retroactive parity. Murphy’s settlement with the plaintiffs in the instant case included a settlement with the plaintiffs in the action involving Title VII. The district court joined the two cases for the purpose of Murphy’s action for contribution. There was a judgment for Murphy (124a et seq.). Local 249 has appealed. Murphy was cross-appealed. For disposition of this case, see order in Denicola v. G. C. Murphy, 562 F.2d 889 (3d Cir., filed Aug. 8, 1977). . In addition to Burberg the contracts were signed by representatives of Murphy and Local 940. . Judge Scalera’s opinion has not been reported for publication. . In its brief Murphy challenged the district court’s allocation of $100,000 of the $548,000 as arbitrary. At oral argument in this court Murphy abandoned this position. . A judgment in favor of Murphy and against Teamster’s Local 249 for the sum of $18,393 was also entered. The $18,393 represented contribution of $15,556 for Title VII violations and $2,837 in attorneys’ fees. $15,556 constitutes Vra of 50% of the Title VII settlement, while $2,837 represents 5/72 of 50% of the $100,-000 attorneys’ fees which were apportioned to the Title VII recovery. See Denicola v. G. C. Murphy Co., supra. . Section 706(f)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(l) provides: “If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d) of this section, the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent . . . named in the charge . . . . If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if . . . the Commission has not filed a civil action under this section or . entered into a conciliation agreement . . . the Commission . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved . . . .” (Emphasis added). . Opinion of the district court, 138a. . Cf. FDIC v. Greenberg, 487 F.2d 9, 12 (3d Cir. 1973) (F.R.Civ.P. 4(e) does not limit federal venue for quasi-in-rem actions). . See 6 C. Wright & A. Miller, Federal Practice and Procedure § 1433, at 177 (1971). . See id. § 1444, at 215. . Cf. Herbst v. International Telephone and Telegraph Corp., 72 F.R.D. 85, 93 (D.Conn. 1976). . This Court has, in the past, limited the reach of ancillary jurisdiction. See Seyler v. Steuben Motors, Inc., 462 F.2d 181 (3d Cir. 1972) (Per Curiam) (ancillary jurisdiction not available to allow Pennsylvania plaintiff to bring suit against non-diverse defendant). See also Johnson v. Better Materials Corp., 556 F.2d 131 (3d Cir., filed Nov. 23, 1976) (Per Curiam), cert. denied, 430 U.S. 967, 97 S.Ct. 1649, 52 L.Ed.2d 359 (U.S., Mar. 19, 1977) (New Jersey plaintiff may not bring action against non-diverse third-party defendant). . In the instant case the district court found that the International did not have an opportunity to engage in conciliation. See 143a. Murphy argues in its brief that the International was directly notified of the EEOC charge. See Appellee’s brief at 21. The record adequately supports the finding to the contrary by the district court. See 427a. . See Canavan v. Beneficial Finance Corp., supra. . See 734a, 738a-739a. . International’s Exhibit E, at 33. Question: Is the case described in the opinion as a class action suit? A. No B. Yes Answer:

songer_appel1_7_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 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 race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained". Timothy MAY, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant-Appellee. Janet PHILLIPS, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant-Appellee. Nos. 90-1735, 90-1736. United States Court of Appeals, Fourth Circuit. Argued Oct. 30, 1990. Decided June 26, 1991. Martin Douglas Wegbreit, Client Centered Legal Services of Southwest Virginia, Inc., Castlewood, Va., for plaintiffs-appellants. Margaret J. Krecke, Office of Gen. Counsel, Dept, of Health and Human Services, Philadelphia, Pa., argued (Beverly Dennis, III, Chief Counsel, Region III, Charlotte Hardnett, Chief, Social Security Litigation Div., Robert S. Drum, Asst. Regional Counsel, Office of Gen. Counsel, Dept, of Health and Human Services, Philadelphia, Pa., John P. Alderman, U.S. Atty., Jean M. Barrett, Asst. U.S. Atty., Roanoke, Va., on brief), for defendant-appellee. Before ERVIN, Chief Judge, WIDENER, Circuit Judge, and HADEN, Chief District Judge for the Southern District of West Virginia, sitting by designation. PER CURIAM: In this consolidated appeal, Timothy May and Janet Phillips challenge the amount of their awards of attorneys’ fees under the Equal Access to Justice Act (EAJA). Under the EAJA, a court shall award attorneys’ fees to a prevailing party in certain civil actions against the United States unless it finds that the government’s position was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The district court determined that both May and Phillips were prevailing parties and that the government’s position was not substantially justified. 729 F.Supp. 1571. These findings are not contested on appeal, nor does the government contest the reasonableness of the hours claimed in the fee applications. May and Phillips do, however, contend that although they were awarded attorneys’ fees at the statutory rate of $75 per hour, the district court erred when it decided not to make an upward adjustment for increases in the cost of living as it was authorized to do by the EAJA. We affirm. The EAJA provides, in relevant part, that “attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor ... justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A)(ii). The district courts have discretion to determine a reasonable fee award, and we will reverse such decisions only for abuse of that discretion. Pierce v. Underwood, 487 U.S. 552, 571, 108 S.Ct. 2541, 2553, 101 L.Ed.2d 490 (1988). The sole evidence offered below to justify an increase in the statutory cap was the fact that the Consumer Price Index indicated that an increase in the cost of living occurred between the enactment of the statute and the date of the fee award. The district court found that this reason alone did not warrant an increase. May and Phillips concede that the decision to award a cost of living adjustment is within the discretion of the district court. They contend, however, that the failure to award an upward adjustment when an increase in the cost of living can be demonstrated by an increase in the Consumer Price Index, constitutes an abuse of discretion. While it is true that upward adjustments are frequently given, that fact does not translate into a requirement that they be made in all cases. In fact the cases principally relied upon by May and Phillips for the proposition that upward adjustments should be made except in unusual circumstances recognize this. See Animal Lovers Volunteer Ass’n, Inc. v. Carlucci, 867 F.2d 1224, 1227 (9th Cir.1989); Baker v. Bowen, 839 F.2d 1075, 1082-84 (5th Cir.1988). Bowen specifically states that “while the statute clearly allows an adjustment for changes in the cost of living, it does not absolutely require it.” Bowen, 839 F.2d at 1084 (emphasis in original). Although in slightly different context, it has been authoritatively stated that to “hold otherwise would render the cap nothing more than advisory despite Congress’ expressed intent to permit higher awards only in rare cases.” Pierce, 487 U.S. at 579-80, 108 S.Ct. at 2557 (Justice Brennan, concurring). Simply stated, May and Phillips’ request would, in effect, have us go against that intent and rewrite the statute to mandate cost of living adjustments. We decline this invitation. Congress is quite capable of requiring mandatory fee increases to account for changes in the Consumer Price Index and, as the statute quoted above shows, this it has not done. Section 2412(d)(2)(A) leaves the decision of whether to award fees in excess of the statutory cap in the sound discretion of the district judge, and we are of opinion that the refusal to grant an upward adjustment, when presented with nothing except an increase in the Consumer Price Index, does not constitute an abuse of that discretion. As the district court pointed out in its opinion in the May case, even “need for a cost of living increase” was not asserted. May requested reimbursement for 25.8 hours in his EAJA fee application. Due to an apparent typographical error, the fee award was calculated for only 24.8 hours. Because the parties do not dispute the reasonableness of the hours claimed in the fee applications, May’s fee award is modified to award 25.8 hours of attorney time at the statutory cap rate of $75 per hour. Accordingly, the judgments of the district court awarding attorneys’ fees to May and Phillips are AFFIRMED AS MODIFIED. 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 race or ethnic identity of this litigant as identified in the opinion? A. not ascertained B. caucasian - specific indication in opinion C. black - specific indication in opinion D. native american - specific indication in opinion E. native american - assumed from name F. asian - specific indication in opinion G. asian - assumed from name H. hispanic - specific indication in opinion I. hispanic - assumed from name J. other Answer:

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. Al MUMFORD et al., Plaintiffs-Appellants, v. James M. GLOVER et al., Defendants-Appellees. No. 73-3037. United States Court of Appeals, Fifth Circuit. Nov. 11, 1974. William L. Irons, James D. Forstman, Birmingham, Ala., for plaintiffs-appellants. William F. Gardner, Sydney F. Frazier, Jr., Birmingham, Ala., for Ala. Pipe, and others. William E. Mitch, Birmingham, Ala., for Local 324, Glover, and others. Before BELL, GOLDBERG and CLARK, Circuit Judges. GOLDBERG, Circuit Judge: This case stands for the proposition that those with a cause of action should not be barred from the fields of advocacy merely because they have trouble making their way through the jurisdictional thicket. We find ourselves cutting the path which will allow plaintiffs to state their case in district court. The district court dismissed the plaintiffs’ complaint “for failure to state a claim upon which relief can be granted.” Upon review here for the limited purpose of determining the validity of the dismissal, we look to see if there are any facts which plaintiffs could prove that would entitle them to relief. Czosek v. O’Mara, 1970, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21; Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80; Hooper v. Mountain States Securities Corp., 5 Cir. 1960, 282 F.2d 195, cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693. As a part of this assessment, we must accept the facts alleged to be true. Walker Process Equipment, Inc. v. Food Machinery and Chemical Corp., 1965, 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247; Hargrave v. McKinney, 5 Cir. 1969, 413 F.2d 320. Plaintiffs are members of Local No. 324 of the International Molders and Allied Workers Union [the Union or Local 324] and are employed by the Mead Corporation [Mead or the Company]. The Union and Mead entered into a collective bargaining agreement on February 19, 1972. Article 19 of this agreement carried forward a previous agreement setting up and regulating a pension plan. Section 20 of Article 19 read: “The above plan shall not be subject to renegotiation until June 30, 1972." The Agreement itself was to remain in force through December 31, 1974, and thereafter until one party or the other gave 60 days notice of termination. Plaintiffs-appellants allege that ' the Union scheduled a meeting for June 3, 1972, to elect members to the committee which would bargain for changes in the Pension Plan. Plaintiffs prepared for that meeting by selecting two nominees dedicated to terminating the pension fund from each Mead plant. They also endeavored to insure that a majority of the membership would show up at the meeting so that their nominees would be elected. But when the meeting was held officers of Local 324 announced that they could not get order and then adjourned the meeting. These officers announced that the meeting would be rescheduled. But two days later employees learned that the president of the Union had instead appointed a bargaining committee on his own. At a subsequent union meeting, on June 17, Union officers assured the membership that a vote would be taken on any plan which this committee brought back. During the ensuing weeks various employees demanded of Union leadership orally and in writing that the pension plan not be extended. On August 15 a petition to impeach the Union leadership, signed by 1,000 of the Local’s 1,800 members, was presented to the Union. On August 18 an amendment to the Pension Plan was executed by the Union and Mead without ratification by the Union membership. Subsequently a petition to rescind the agreement was filed by 1,300 of the Local’s membership. Officers of the Local ignored that petition. Plaintiffs filed this suit against Mead, the Union, and trustees of the Pension Trust on July 17, 1972, seeking a termination of the Pension Plan and a refund of involuntary payroll deductions currently being held by the Pension Trust. Subsequent to the dismissal below, the Union and the Company entered into an agreement whereby the Pension Fund refunded $1,700,000 to the class plaintiffs. This sum was made up of employee contributions to the Pension Fund plus interest on those contributions. Thus, at the time of oral argument the appellees had dispersed most of the booty. Except for incremental benefits, infra, and possible attorney’s fees we would have a classic case of mootness. We were not advised of the division of the spoils except by two sentences at the end of Appellant Mead’s brief and in Appellee’s “Alternative Motion for Remand for Determination of Attorney’s Fees.” Disconcerting as this may be, forcing us to judge in a very sensitive area and in a near vacuum, we do so, knowing of possible remaining remnants on the battlefield. What started out as a potential armageddon will end with a minor skirmish requiring us to fire jurisdictional cannon which will be heard on future battlegrounds. Plaintiffs-appellants claim that § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 gives federal district court jurisdiction over this suit. “Plaintiffs further aver that the Pension Plan . . . has expired and contrary to the provisions contained in said Pension Plan and the collective bargaining' agreement . is being maintained in violation of the foregoing agreements. >> A further claim, cognizable under Section 185 when it arises in the context of a collective bargaining agreement, was that the Union leadership abused their duty of fair representation. “Workers further contend that Local 324 . . . failed to fairly represent the employees within the meaning of Section 159 of Title 29, U.S.C. A. ... in executing an agreement contrary to the written and oral demands of employee-members. The affidavits submitted . . . established that bad faith and hostile discrimination in the Union’s breach of their statutory duty by signing an agreement seeking to breathe life into a defunct pension plan.” The contention that the collective bargaining agreement was violated by continuation of the Pension Plan is based on the Appellants’ apparent belief that the phrase in Article 19, Section 20 “shall not be subject to renegotiation” means “shall terminate.” We do not read the agreement as plaintiffs do, and we therefore find that there was no violation of the collective bargaining agreement in the continuation of the Pension Plan after June 30, 1972. The phrase “shall not be open to renegotiation until June 30, 1972” in its plain sense merely prohibits alteration before that date. It does not suggest that renegotiation or any other act is required in order for the plan to remain in effect beyond June 30, 1972. Certainly the documents presented to this Court do not suggest a different intention on the part of those who concluded the first agreement. Nothing in the collective bargaining agreement supports such an interpretation of “renegotiate” and there are no directives for the Pension Fund in the event of termination. The prospect of termination is not covered in the second document submitted, the “Rules and Regulations of the Pension Plan.” Article IX, Section 2 of the Rules and Regulations reads: “If this Pension Plan is discontinued, the assets then remaining in the Pension Fund after providing for the expenses of the Plan, shall be allocated in the following manner. . . .” Rules and Regulations at 20. The section is stated in the conditional; if “renegotiate” was intended to mean “terminate” it is unlikely that the termination provision would have been so worded. Admittedly, when a pension provision provides for renegotiation one of the possibilities opened is that the negotiators may decide to terminate the plan. But the possibility is not the certainty. The only certainty encompassed by the term “renegotiation” is that the parties are permitted to negotiate about the contents of the plan once again. This is what the Union and the Company did, and, in itself, this did not violate the contract between Local 324 and Mead. We therefore agree with the district court that plaintiffs did not state a cause of action when they contended that Union and Company had violated the terms of the collective bargaining agreement in not terminating the Pension Plan on June 30, 1972. We must now address ourselves to the issues raised by the allegation that the Union has abused its duty of fair representation. Such a duty is legally compelled in contexts other than that in which a labor organization and employer are accused of violating contract terms. There is a duty of fair representation in all Union dealings implicit in the Congressional grant to unions, in 29 U.S.C. § 159(a), of the exclusive power to represent all employees in the collective bargaining unit. Vaca v. Sipes, 1967, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842, 850; Ford Motor Co. v. Huffman, 1953, 345 U.S. 330, 337, 73 S.Ct. 681, 685, 97 L.Ed. 1048. This Court has never ruled on the question of whether Section 185 might be used as a jurisdictional base for a claim of abuse of the duty of fair representation outside of the contractual context. Today we hold that Section 185 does not provide such jurisdiction. The plaintiffs-appellants’ essential assertion in the instant case is not that any specific term of the collective bargaining agreement, such as the proper operation of a seniority clause, was violated. Rather they claim that the Union had failed to fairly represent them in the administration of the Pension Plan. The existence of a pension plan clause provides the context within which the Union must act, but there is no stipulation in the clause itself which the Union or Mead has violated. See Nedd v. United Mine Workers, 3 Cir. 1968, 400 F.2d 103. Section 185 provides jurisdiction only in “suits for violation of contracts between an employer and a labor organization ... or between any such labor organizations” (emphasis supplied). This section expressly requires a violation of a labor contract before it may be employed as a jurisdictional device. And the literal meaning of the statute is the first reference for Congressional intent. Perry v. Commerce Loan Co., 1966, 383 U.S. 392, 400, 86 S.Ct. 852, 15 L.Ed.2d 827, 833, quoting United States v. American Trucking Associations, 1940, 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345, 1350; Flora v. United States, 1958, 357 U.S. 63, 65, 78 S.Ct. 1079, 2 L.Ed.2d 1165, 1167; Ray Bailie Trash Hauling, Inc. v. Kleppe, 5 Cir. 1973, 477 F.2d 696, 707. It is on this basis that we decide that Section 185 will not serve to bring this action before a federal court. Accord, Leskiw v. Local 1470, Electrical Workers, 3 Cir. 1972, 464 F.2d 721; Adams v. Budd Co., 3 Cir. 1965, 349 F.2d 368; Palnau v. Detroit Edison Co., 6 Cir. 1962, 301 F.2d 702. This Court has held, however, that federal jurisdiction may be sustained when granted by a federal statute even if the plaintiff has not relied upon that statute in the district court. Paynes v. Lee, 5 Cir. 1967, 377 F.2d 61, 63; see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1206 at 77-78 (1969). Therefore, we conclude that this suit can move forward under the jurisdictional aegis of 28 U.S.C. § 1337. As previously noted, the statutory duty of fair representation is implied under Section 9(a) of the National Labor Relations Act, 29 U.S.C. § 159(a). The N.L. R.A. is an “Act of Congress regulating commerce,” Capital Service, Inc. v. N. L. R. B., 1954, 347 U.S. 501, 504, 74 S. Ct. 699, 702, 98 L.Ed. 887, 891, so that a cause of action for the breach of Section 9(a) is one “arising under” a statute regulating commerce within the meaning of Section 1337. This Court has previously found jurisdiction under Section 1337 for controversies involving the National Labor Relations Act in Templeton v. Dixie Color Printing Co., 5 Cir. 1971, 444 F.2d 1064, 1067 and Boire v. Miami Herald Pub. Co., 5 Cir. 1965, 343 F.2d 17, 20. Four other circuit courts have found that the “arising under” jurisdiction encompasses actions involving the duty of fair representation. Retana v. Local 14, Apartment Operators, 9 Cir. 1972, 453 F.2d 1018, 1021-1022; Waters v. Wiscon. Steel Works, 7 Cir. 1970, 427 F.2d 476, 490; de Arroyo v. Sindicato de Trabajadores Packinghouse, 1 Cir. 1970, 425 F.2d 281, 283 n. 1; Nedd v. United Mine Workers, 3 Cir. 1968, 400 F.2d 103, 106. This conclusion is buttressed by Tunstall v. Brotherhood of Locomotive Firemen, 1945, 323 U.S. 210, 213, 65 S.Ct. 235, 237, 89 L.Ed. 187, 193, in which the Supreme Court held that Section 1337 provided a basis for district court jurisdiction over suits for abuse of the duty of fair representation implied from “comparable provisions of the Railway Labor Act.” Ford Motor Co. v. Huffman, 1953, 345 U.S. 330, 337, 73 S.Ct. 681, 686, 97 L.Ed. 1048, 1057. The jurisdiction thus bestowed by Section 1337 need not be snatched away by the doctrine of pre-emption. This Court had once upheld the primacy of the N.L.R.B. in duty of fair representation cases. Local 12, Rubber Workers v. NLRB, 5 Cir. 1966, 368 F.2d 12, involved allegations of a breach of the duty of fair representation, predicated directly on Section 9(a) of the Act and not on 29 U.S.C. § 185. In sending the case to the N.L.R.B. for consideration the Court noted: “. . .we are convinced that the rights of the individual employees to be fairly represented can be more fully achieved within the spirit of the act by recognizing the Board as the appropriate body to meet the challenge of uniformly administering standards of fair representation.” 368 F.2d at 23. But this opinion preceded the Supreme Court’s ruling on the matter in Vaca v. Sipes, 1967, 386 U.S. 171, 87 S. Ct. 903, 17 L.Ed.2d 842. In Vaca the plaintiff asserted a Section 185 breach and the question presented was one of state court pre-emption. But the Supreme Court referred to our decision in Rubber Workers, not a Section 185 case, in capsuling the Circuit Court disputes which helped foster its discussion. The issue it then addressed was that of preemption in general and not as limited to the Section 185 context. The reasoning of the Court is worth quoting at length: A primary justification for the pre-emption doctrine — -the need to avoid conflicting rules of substantive law in the labor relations area and the desirability of leaving the development of such rules to the administrative agency created by Congress for that purpose — is not applicable to cases involving alleged breaches of the union's duty of fair representation. The doctrine was judicially developed in Steele and its progeny, and suits alleging breach of the duty remained judicially cognizable long after the NLRB was given unfair labor practice jurisdiction over union activities by the L. M.R.A. Moreover, when the Board declared in Miranda Fuel that a union’s breach of its duty of fair representation would henceforth be treated as an unfair labor practice, the Board adopted and applied the doctrine as it had been developed by the federal courts. See 140 N.L.R.B., at 184-186. Finally, as the dissenting Board members in Miranda Fuel have pointed out, fair representation duty suits often require review of the substantive positions taken and policies pursued by a union in its negotiation of a collective bargaining agreement and in its handling of the grievance machinery ; as these matters are not normally within the Board’s unfair labor practice jurisdiction, it can be doubted whether the Board brings substantially greater expertise to bear on these problems than do the courts, which have been engaged in this type of review since the Steele decision [T]he duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law. Were we to hold that the courts are foreclosed by the NLRB’s Miranda Fuel decision from this traditional supervisory jurisdiction, the individual employee injured by arbitrary or discriminatory union conduct could no longer be assured of impartial review of his complaint, since the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint. See United Electrical Contractors Assn. v. Ordman, 366 F.2d 776, cert. denied, 385 U.S. 1026 [87 S.Ct. 753, 17 L.Ed.2d 674], The existence of even a small group of cases in which the Board would be unwilling or unable to remedy a union’s breach of duty would frustrate the basic purposes underlying the duty of fair representation doctrine. For these reasons, we cannot assume from the NLRB’s tardy assumption of jurisdiction in these cases that Congress, when it enacted N.L.R.A. § 8(b) in 1947, intended to oust the courts of their traditional jurisdiction to curb arbitrary conduct by the individual employee's statutory representative. 386 U.S. 181-183, 87 S.Ct. 903, 912, 17 L.Ed.2d 852-853 (footnotes omitted). This position was reaffirmed in Amalgamated Assn. of Street Employees v. Lockridge, 1971, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473, wherein the Court noted: “[I]n Yaca v. Sipes . . . we held that an action seeking damages for injury inflicted by a breach of a union’s duty of fair representation was judicially cognizable in any event, that is, even if the conduct complained of was arguably protected or prohibited by the National Labor Relations Act and whether or not the lawsuit was bottomed on a collective agree■ment.” 403 U.S. at 299, 91 S.Ct. at 1924, 29 L.Ed.2d at 490 (emphasis added). This resolution of the pre-emption question is all the more compelled by the treatment of duty of fair representation cases by the N.L.R.B. In Miranda Fuel Co., 1962, 140 N.L.R.B. 181, enforcement denied, 2 Cir. 1963, 326 F.2d 172, a divided Board held that a breach of the duty of fair representation violated Section 8(b) of the Act. The majority held that Section 7 gave employees the right to be free from unfair treatment at the hands of their exclusive bargaining agent and “that Section 8(b)(1)(A) of the Act accordingly prohibits labor organizations, when acting in a statutory representative capacity, from taking action against any employee upon considerations or classifications which are irrelevant, invidious or unfair.” 140 N. L.R.B. at 185. Since Miranda, however, the Board has been retreating from the application of a broad duty of fair representation criterion. Rather, it has found violations on traditional 8(b)(1)(A) and 8(b)(2) grounds: most generally where there were allegations of racial discrimination or a breach of the “duty of fair dealing,” which duty merely requires notice to a member of his union obligations before the union may request that the employer discharge him for avoiding them. See, generally, Note, Labor Law Preemption and Individual Rights, 51 Tex.L.Rev. 1037, 1074-84 (1973). Thus the application of Miranda might, in practice, rob a plaintiff of his cause of action if the cause does not fit in one of these narrow niches. In the absence of an overriding reason, this Court is loathe to make an empty ritual of a plenary right. On remand, the court below should consider whether the facts alleged by plaintiffs are true, and whether in their full presentation they reveal a breach of the duty of fair representation. A legally cognizable breach in this case could stem from proof of Union hostility towards the plaintiff class. Vaca v. Sipes, supra; Amalgamated Association of Street Employees, supra; Cunningham v. Erie, R.R., 2 Cir. 1966, 358 F.2d 640. It might also stem from proof that Union leadership had treated the wishes of membership in a perfunctory fashion. While perhaps not constituting a breach under the “hostility” classification, evidence of nadiral disinterest in the desires of membership might make out a case of arbitrary treatment. See Local 12, Rubber Workers v. NLRB, 5 Cir. 1966, 368 F.2d 12, 18; Griffin v. U. A. W., 4 Cir. 1972, 469 F.2d 181; Day v. U. A. W. Local 36, 6 Cir. 1972, 466 F.2d 83; de Arroyo v. Sindicato de Trabajadores Packinghouse, 1 Cir. 1970, 425 F.2d 281, cert. denied, 400 U.S. 877, 91 S.Ct. 117, 27 L.Ed.2d 114; Thompson v. Internat. Assn. of Machinists, E.D.Va.1966, 258 F.Supp. 235. Of course, the mere fact that a new plan was negotiated does not in itself indicate that Union leadership was acting with hostility or disregard for membership. Leadership might very well show that they were trying to act in the best interests of all union members and were devoting sufficient energies to that representational effort. On their face, the facts alleged evidence neither invidious classification nor disparate treatment of membership, the other grounds for.finding breach of the duty of fair representation. As noted above, Appellees have already refunded pension contributions, plus interest, to employees. Thus, if hostility or disinterest on the part of the Union towards its members is proven in the district court, relief granted from the Union should be limited. Relief would amount to the incremental damage caused to the membership by the delay in the refund from the time that renegotiation could begin to the time when refunds were actually made. Should plaintiffs-appellants prevail or accept a settlement their attorneys should be awarded a reasonable sum for bringing this appeal and for prosecuting the case upon remand. In addition, if the court below finds that the plaintiffs’ original suit, even though dismissed, precipitated the refund, then counsel is entitled to recover the reasonable costs of bringing the original suit. Kahan v. Rosenstiel, 3 Cir. 1970, 424 F.2d 161. Such fees should be prorated against the funds settled upon each of the plaintiffs by the Pension Plan. Where plaintiff class members are without the funds to reimburse attorneys, such funds may be appropriated from a member’s share of any new fund which might be created by relief in the trial on remand. Reversed and remanded. . 29 U.S.C. § 185(a) reads: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. . Appellants also contend that the collective bargaining agreement violates Ala.Code tit. 26, § 375(5) in that it makes contributions to the pension fund a condition of employment. This argument is completely without merit. Ala.Code tit. 26, § 375(5) reads: “No employer shall require any person, as a condition of employment or continuation of employment, to pay any dues, fees or other charges of any kind to any labor union or labor organization.” The money here was paid into a pension trust and not to, or for the benefit of, the Union. . Remarkably, this point is assumed throughout the Appellants’ Complaint and Brief. Not a sentence argues to the point. . 29 U.S.C. § 159(a) provides: Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay; wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided jnrilier, That the bargaining representative has been given opportunity to be present at such adjustment. . In Deaton Truck Line, Inc. v. Local 612, Teamsters, 5 Cir. 1962, 314 F.2d 418, this Court held that Section 185 is “broad enough to include any agreement significant to the maintenance of labor peace between the employer and the Union.” 314 F.2d at 422. But nowhere does that opinion suggest that a cause of action is provided in the absence of the violation of an agreement. . 28 U.S.C. § 1337 reads: The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies. . Thus, technically, N.L.R.B. Jurisdiction is based on a Section 7 implication of the duty of fair representation whose violation is brought before the Board under Section 8(b)(1)(A). The courts find jurisdiction through a Section 9 substantive violation and 28 U.S.C. § 1337 jurisdiction. But the different grounds do not in themselves appear to compel substantive distinctions in disposition of the cases. . It should be noted that in this case the plaintiffs-appellants allege that they constitute a majority of the Union membership. All previous fair representation cases which have come to the attention of this Court involved the allegation of either an individual or minority of the membership. Majority status is usually sufficient to insure that one’s view is heard. But while this factor greatly increases the probability of fair representation it does not bar a suit when fair representation fails. Other avenues of relief generally open to a majority might not be adequate in the present case. Plaintiffs might not want to institute a decertification action because they may believe that the Union is adequately representing their interests outside of the particular action they are bringing. And internal union democracy, such as election of officers, may not be available in sufficient time to stave off the damage done by Union adherence to an undesirable contract. 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_respond2_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 second 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. NATIONAL LABOR RELATIONS BOARD v. KAPLAN et al. No. 19. Circuit Court of Appeals, Second Circuit. Nov. 1, 1943. Jacob I. Karro, of Washington, D.C., and Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, and Sanford H. Bolz, Attys., National Labor Relations Board, all of Washington, D.C., for the Board. Herbert L. Wasserman and Wasserman & Erenstoft, all of New York City, for respondents. <■ Before L. HAND, CHASE, and CLARK, Circuit Judges. PER CURIAM. This case comes up on the usual motion for an order of this court to enforce the Board’s order directing the respondents to desist from discouraging membership in an affiliated union, and from “in any other way interfering with * * * employees in the exercise of the right to self-organization * * * and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act.” The order also reinstated one discharged employee with back pay. The respondents had resisted an earlier attempt at union organization in their factory, and when the attempt was renewed by another union nearly a year later, there was testimony which, if believed, justified the conclusion that they opposed the second effort as well. As to the discharge, the usual conflict arose whether it was due to the employee’s union activities or to her insubordination; it was possible to find either way. The first objection, being to the sufficiency of the evidence to sustain the Board’s findings, is without merit; there was “substantial” evidence, which it will serve no purpose to set out in detail. The discharged employee at the time of the hearing had obtained employment which she preferred to reinstatement with the respondents. However, she had been employed upon a probationary period of two months which had not then quite expired. The order directed the respondents to reinstate her with back pay if she applied within five days after the order issued, and if she did not, to pay her any loss of wages from her discharge until she got the new j'ob. The respondents are not content with this, because her new job was at a higher wage than she had earned with them. As we understand it, they wish to be credited with the excess from the time of her new employment until the date of the order, or at least until she declared for reinstatement. If the employee had demanded reinstatement she would have had to credit all that she had earned, because the order would then have restored her to the same position she would have been in, had she been continuously employed. But when she was not reinstated, the wrong so far as it can be measured in dollars ceased as soon as she began to earn as much elsewhere. The respondents were no more entitled to any part of her wages during the probationary period than thereafter. The respondents also object to the order because of its breadth, invoking National Labor Relations Board v. Express Publishing Co., 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930. We have discussed this question in National Labor Relations Board v. Standard Oil Co., 2 Cir., 138 F.2d 885, handed down herewith, to which we refer. An enforcement order may pass. Question: This question concerns the second 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:

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. RAMBO et al. v. UNITED STATES. No. 9361. Circuit Court of Appeals, Fifth Circuit. Feb. 19, 1941. George C. Spence, of Atlanta, Ga., for appellants. Francis Hoague, Atty., Dept. of Justice, and Norman M. Littell, Asst. Atty. Gen., both of Washington, D. C., Lawrence S. Camp, U. S. Atty., and Harvey H. Tysinger, Asst. U. S. Atty., both of Atlanta, Ga., and Erwin Sibley, Sp. Atty., Dept. of Justice, of Milledgeville, Ga., for appellee. Before FOSTER, HOLMES, and Mc-CORD, Circuit Judges. McCORD, Circuit Judge. Suit was originally brought by the United States to condemn eight parcels of land in Cobb County, Georgia, for a National Memorial Military Park under the provisions of Sec. 2 of the Act of June 26, 1935, c. 315, 49 Stat. 423, 16 U.S.C.A. § 430u. The petition of the government named as defendants Kennesaw Mountain Battlefield Association, a corporation whose charter had been forfeited for nonpayment of taxes; the receivers of the corporation appointed by the Superior Court of Cobb County, Georgia; the former president of the corporation, certain named bondholders, the trustee for all bondholders, and many other persons. The court ordered that a copy of the petition be served upon the defendants and that notice of the proceeding be published in the Marietta Journal, a newspaper published in Cobb County, Georgia. After a trial before a jury, judgment for $16,000 was entered as an award of just compensation for the lands condemned. On appeal this court affirmed the judgment of the District Court, United States v. Kennesaw Mountain Battlefield Ass’n, 5 Cir., 99 F.2d 830, and the Supreme Court denied certiorari, 306 U.S. 646, 59 S.Ct. 587, 83 L.Ed. 1045. After the mandate went down the $16,000 award was paid into the registry of the court, and on May 19, 1939, final judgment was entered vesting title to the property in the United States. After the money had been paid into court, but before it had been distributed, these appellants sought to come into the case by intervention. They claimed to own the fee-simple title to the property and sought to have the judgment and orders of the court set aside and to obtain a trial de novo to determine the value of the condemned lands. After a hearing the court declined to permit the intervention and dismissed the petition “on the grounds that it sets out no cause of action in law or equity, for relief sought”. The appellants claim that they were the true owners of the fee-simple title to the lands because they had been stockholders and bondholders of Kennesaw Mountain Battlefield Association^ that the corporation’s charter had been forfeited and that they, as stockholders, became the owners of the assets of the corporation; that as bondholders they had acquired fee-simple title to the lands under what they term to be a decree of “strict foreclosure” in the state court; that they were never served with process or notice and were not represented in the proceedings; and that, therefore, the judgment condemning the property should be set aside. In seeking to intervene the appellants do not allege or contend that they did not have knowledge of the condemnation proceedings when the government brought suit to condemn the land on May 26, 1936, and when it was seeking out the owners of the property. Although two of the interveners gave their addresses as Marietta, Georgia, where notice of the proceedings was published; and although they appear to be closely identified with the former president of the corporation, who appeared and took an active part in the proceedings, it appears that they sat by during the trial and waited until two appeals had been taken and judgment had been entered, and the award paid into court before they sought to assert their alleged rights. Petition for intervention was not filed until June, 1939. We do not decide, but we are impressed with the argument that the interveners here were fully and fairly represented in the original suit filed by the government to condemn the lands in question. The state court receivers, who represented the Kennesaw Mountain Battlefield Association corporation, its stockholders, and its creditors, by direction of the court of .their appointment, participated in the condemnation case and there sought by every fair means to inform the court and jury of the value of the property. The receivers presented the' same evidence then that the interveners suggest now as to the valuation of the lands. Furthermore, the interveners were represented in the proceedings by the trustee for the bondholders, who held a deed of trust to the lands, and who was the party named in the state court decree which is now relied upon by the appellants as a decree of “strict foreclosure”. Not only were they represented but every right they claim and the relief they now seek was then litigated. They would relitigate issues which have already been settled. If, as they contend, the fee-simple title to the lands was in them, they may come in and share in the condemnation award which has been paid into the registry of the court and which now stands in the place of the lands. Cf. Cobo v. United States, 6 Cir., 94 F.2d 351; Coggleshall v. United States, 4 Cir., 95 F.2d 986; Credits Commutation Co. v. United States, 8 Cir., 91 F. 570; Id., 177 U.S. 311, 20 S.Ct. 636, 44 L.Ed. 782. We do not pass upon the merits. We prefer to rest decision upon the proposition that the order denying appellants the right to intervene and dismissing their petition was within the sound discretion of the trial court. If we assume, as appellants contend, that they were the owners of the land and not represented in the suit, they have not been deprived of any rights they possess for the judgment in the condemnation case would not be binding as to them. Credits Commutation Co. v. United States, 177 U.S. 311, 20 S.Ct. 636, 44 L.Ed. 782; Lupfer v. Carlton, 5 Cir., 64 F.2d 272; Burrow v. Citizen’s State Bank, 5 Cir., 74 F.2d 929; Stallings v. Conn, 5 Cir., 74 F.2d 189. The order denying and dismissing the petition to intervene is affirmed. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:

songer_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. Jack BREWER, Defendant-Appellant. No. 87-1431. United States Court of Appeals, Fifth Circuit. Dec. 24, 1987. Rehearing Denied Jan. 28,1988. David Godbey, Timothy A. Duffy (court appointed), Dallas, Tex., for defendant-appellant. Sidney Powell, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellee. Before GOLDBERG, WILLIAMS, and HIGGINBOTHAM, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge: A defendant appeals from his conviction for illegally possessing and trafficking in counterfeit long distance telephone service access codes, claiming that the statute under which he was convicted is not applicable to misuse of such codes. We are persuaded that the conduct complained of here falls under a practical reading of the statute and affirm. I Texas National Telecommunications is a long distance telephone company. A customer calls TNT’s toll free phone number, punches in a personal access code, and if the access code is determined to be valid by the TNT computer, the customer gets a dial tone enabling him to place a long distance call. The call is then billed to the customer through the access number. The government urged that Brewer was “hacking” — placing numerous calls to the TNT toll-free number and trying out various number combinations until he found one that the computer would accept as valid. By this process, it was urged, Brewer gathered a number of personal access codes that could be used to make long distance phone calls without identification of the user. TNT became concerned about a large number of calls being charged to unassigned personal access codes and asked the Secret Service and Southwestern Bell Telephone Co. to investigate. The investigators traced calls placed to the 800 number to three phones — all owned by Brewer. The investigators estimated that Brewer would have thirty access codes at that time, and they cancelled all but five of them. Secret Service Agent Rico contacted Brewer and asked to purchase telephone service for a wide telemarketing research project. Rico met with Brewer on October 27, 1986 and asked him for 15 codes, and Brewer told him the fee would be $200 per code, giving him a list of around 17 codes. Rico used Brewer’s phone, tried out each of the codes on the list, and reported that only five were working and that he would need more. The next morning, October 28, in a two hour period the investigators traced 57 phone calls placed from Brewer’s phone to the TNT 800 number. That afternoon, Rico returned to Brewer’s office and Brewer gave him the same list with new numbers penciled in. He again tested the numbers from Brewer’s phone and verified that 17 of the new codes worked. Brewer wrote an invoice to Rico selling him the access codes for 14 days “replacement guaranteed.” This evidence was presented to a jury who convicted Brewer of violating 18 U.S. C. § 1029 by trafficking in counterfeit long distance access codes and possessing 15 or more counterfeit and unauthorized access devices on October 27, Counts 1 & 2, and of illegally trafficking in and possessing 15 or more counterfeit and unauthorized access devices on October 28, Counts 3 & 4. The court sentenced Brewer to five years in prison for Count 2 followed by concurrent terms of five years probation for Counts 2, 3, and 4. Brewer appeals his conviction, arguing that Congress did not intend for 18 U.S.C. § 1029 to reach misuse of telephone access codes, and that even if the statute did apply, Brewer’s specific conduct does not fall within the statute because (1) an access code cannot be both “unauthorized” and “counterfeit”; (2) a working access code cannot be “counterfeit;” and, (3) a terminated access code cannot be “unauthorized.” II Brewer was indicted under 18 U.S. C. §§ 1029(a)(1) and (a)(3), which provide: (1) Whoever— (1) knowingly and with intent to defraud produces, uses, or traffics in one or more counterfeit access devices; [or] (3) knowingly and with intent to defraud possesses fifteen or more devices which are counterfeit or unauthorized access devices; shall, if the offense affects interstate or foreign commerce, be punished as provided in subsection (c) of this section. The statute also provides the following definitions: (e) As used in this section— (1) the term “access device” means any card, plate, code, account number, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument); (2) the term “counterfeit access device” means any access device that is counterfeit, fictitious, altered, or forged, or an identifiable component of an access device or a counterfeit access device; (3) the term “unauthorized access device” means any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud; (4) the term “produce” includes design, alter, authenticate, duplicate, or assemble; (5) the term “traffic” means transfer, or otherwise dispose of, to another, or obtain control of with intent to transfer or dispose of; and (6) the term “device-making equipment” means any equipment mechanism, or impression designed or primarily used for making an access device or a counterfeit access device. Although its legislative history suggests that the primary focus of section 1029 was to fill cracks in the criminal law targeted at credit card abuse, we are persuaded that Brewer’s conduct is reached by a practical reading of the statute. Both the Senate and House Reports on the statute state that the definition of “access device” was intended to be “broad enough to encompass technological advances.” Both reports also make specific reference to personal identification codes such as those used to obtain cash from automatic teller machines. Thus, although apparently this is the first case to do so, we need not stretch to read long distance access codes into the section 1029 definition of “access device.” Our reading denies none of Brewer’s rights to due process because the language of the statute gives fair notice that misuse of a long distance access code constitutes a crime under section 1029. The test of whether a statute is unconstitutionally vague so as to deprive fair notice is whether it provides a person of ordinary intelligence a reasonable opportunity to know what is proscribed. This test is met. Furthermore, “the requirement that statutes give fair notice cannot be used as a shield by one who is already bent on serious wrongdoing.” At the very least, Brewer must have known that hacking out long distance access codes to obtain free long distance service was “wrong.” Ill Brewer argues that even if abuse of long distance codes falls within the statutory language, his conviction is improper, first because a long distance code cannot be both a “counterfeit access device” and an “unauthorized access device”; second, because a working long distance code cannot be a “counterfeit access device”; and third, because a terminated long distance code cannot be an “access device.” Brewer argues that his convictions on Counts 1 and 3 (for trafficking in counterfeit access devices) are inconsistent with his convictions on Counts 2 & 4 (for possessing unauthorized access devices) because “counterfeit” and “unauthorized” are mutually exclusive. Brewer contends that an access code is either counterfeit, which is totally forged or altered, or it is unauthorized, which is genuine but possessed without authority, but that it cannot be both. Brewer argues that the separate definitions for each term in section 1029(e) and the use of the disjunctive “or” in section 1029(a)(3), “devices which are counterfeit or unauthorized access devices,” mean that Congress intended to create a dichotomy between the terms. The argument is not without some force, but its difficulty is that even if Congress did intend to create a definitional dichotomy between the two terms, it does not necessarily follow that Brewer’s conduct cannot fall within the meaning of both, and it did. The codes are both “counterfeit,” because they are “fictitious” and “forged,” and “unauthorized,” since they were “obtained with intent to defraud.” Congress need not have anticipated that technological advances would create the opportunity for conduct that meets both definitions. By the same token, we are unpersuaded by Brewer’s broader argument that a legitimate access code cannot ever be “counterfeit.” Brewer argues that the codes he obtained were genuine code numbers placed in the TNT computer and thus were not “counterfeit.” However, an equally plausible interpretation is that Brewer did not “obtain” the codes from the computer but fabricated codes that just happened to be identical to the TNT codes. By analogy, someone who manufactures phony credit cards is no less a “counterfeiter” because he happens to give them numbers that match valid accounts. Finally, Brewer argues that his conviction on Count 2, possessing 15 or more unauthorized access codes on October 27, is invalid because on that day he possessed only five working access codes. He contends that a terminated access code is not an access code that can be used to obtain anything of value as the statutory definition requires. The legislative history of the statute indicates that the requirement of possessing 15 codes was written into the statute to target major fraud operations. We are not persuaded that Congress intended the statute to require that each of those 15 code numbers be active. Such a requirement would serve as a disincentive to credit card or long distance companies immediately to invalidate stolen or lost numbers to protect themselves. More importantly, the argument fails to recognize that the definitional section of the statute contemplates the misuse of revoked or canceled access codes. Brewer’s arguments are clever and are skillfully presented. Ultimately, however, we are persuaded that their adoption would frustrate Congressional purpose — and that purpose controls. We AFFIRM. . See, S.Rep. No. 98-368, 98th Cong., 2d Sess., reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3647, at 3655; H.R.Rep. No. 98-894, 98th Cong., 2d Sess., reprinted in 1984 U.S.Code Cong. & Ad.News 3689, at 3705. . S.Rep. at 3656; H.Rep. at 3705. . Home Depot, Inc. v. Guste, 773 F.2d 616 (5th Cir.1985). .United States v. Griffin, 589 F.2d 200, 207 (5th Cir.1979); United States v. Ragen, 314 U.S. 513, 524, 62 S.Ct. 374, 379, 86 L.Ed. 383 (1942) (on no construction can the statutory provisions here involved become a trap for those who act in good faith). . See 18 U.S.C. § 1029(e)(3). 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_respond1_1_2

D

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". BANK OF CHINA v. WELLS FARGO BANK & UNION TRUST CO. Nos. 12698, 12699. United States Court of Appeals Ninth Circuit. July 30, 1951. A. Crawford Greene, Morris M. Doyle and Owen Jameson, all of San Francisco, Cal., James B. Burke, New York City (McCutchen, Thomas, Matthews, Grif-fiths & Greene, San Francisco, Cal., Burke & Burke, New York City of counsel), for appellant Bank of China. Lloyd W. Dinkelspiel, Martin Minney, Jr., Edward W. Rosston and Heller, Ehrman, White & McAuliffe, all of San Francisco, Cal., for appellee Wells Fargo Bank & Union Trust Co. Robert W. Kenny, Los Angeles, Cal., Martin Popper and Wolf, Popper, Ross & Wolf, all of New York City, Benjamin Dreyfus, Francis J. McTernan, Jr., San Francisco, Cal., for movant appellee Bank of China. Before HEALY, BONE and ORR, Circuit Judges. PER CURIAM. In these cases the District Court found that a satisfactory solution could not be reached on the evidence before it. That court, therefore, continued the causes sine die and entered the following order: “1. That the trial of this cause will be continued sine die; “2. That the said motion for summary judgment is denied without prejudice; “3. That said motion for dismissal or in the alternative for substitution of attorneys is denied without prejudice; “4. That the defendant is hereby permitted to deposit in the Registry of this Court the said sum of $626,860.07, subject to the further order of this Court pending a decision herein on the merits; “5. That the defendant Wells Fargo Bank & Union Trust Co. shall be and it is hereby relieved of any and all claims for interest for use of the fund or because of its failure or refusal to pay said fund to plaintiff Bank of China or any other claimant thereto which may now or hereafter ■be asserted against it by plaintiff or any other claimant to said fund or any part thereof, upon condition that it deposit the sum of $626,860.07 in the Registry of this Court within ten (10) days from the date hereof; “6. That upon the defendant’s depositing said sum as provided in paragraph 5 hereof, it shall be and is hereby discharged of and from all liability in the premises either to plaintiff Bank of China or to anyone claiming through or on behalf of plaintiff, and plaintiff and all those persons now before this Court who are assertedly acting in the name of plaintiff are restrained from enforcing or attempting to enforce any claim or claims against said defendant relating to said sum of money or said deposit or from taking any proceedings against defendant in relation thereto; “7. That there is reserved to defendant the right to assert against said fund and to prove its costs and attorneys’ fees reasonably incurred in this action; * * See 92 F.Supp. 920. This appeal is taken from that order. In 'briefs and oral argument, the parties have made it clear that there is now available additional evidence of substantial significance. The District Court may deem it expedient to re-examine the case in the light of changing world conditions and such additional evidence as may be made available to it by the respective parties. This court has the power to make such disposition of the case as justice may require. 28 U.S.C.A. § 2106; see Bryan v. United States, 1950, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335; Schaff v. R. W. Claxton, 1944, 79 U.S.App.D.C. 207, 144 F.2d 532. We think the appropriate procedure to attain that end is to dismiss the appeals without prejudice and remand the causes to the district court. Cf. Greene v. United Shoe Machinery Co., 1 Cir. 1903, 124 F. 961. It is so ordered. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:

songer_appbus

1

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Jerome S. MURRAY, Appellant, v. WEINBERG & BUSH, INC., a corporation, Appellee. WEINBERG & BUSH, INC., a corporation, Appellant, v. H. Max AMMERMAN, Irving S. Lichtman, and Parkwood, Inc., a corporation, Appellees. Nos. 16148, 16147. United States Court of Appeals District of Columbia Circuit. Argued May 24,1961. Decided June 15, 1961. Mr. Denis K. Lane, Washington, D. C. , for appellant in No. 16148. Mr. James M. Earnest, Washington, D. C., with whom Messrs. James D. Newton, Nathaniel Goldberg and Martin Kirsch, Washington, D. C., were on the brief, for appellee in No. 16148 and for appellant in No. 16147. Mr. Lucien Hilmer, Washington, D. C., with whom Messrs. David G. Bress and J. H. Krug, Washington, D. C., were on the brief, submitted on the brief, for appellees, Ammerman and Lichtman, in No. 16147. Mr. Joseph G. Dooley, Washington, D. C., submitted on the brief, for appellee, Parkwood, Inc., in No. 16147. Before Edgerton, Washington and Bastían, Circuit Judges. PER CURIAM. Weinberg & Bush, Inc., appellee in No. 16,148 and appellant in No. 16,147, filed its complaint in the District Court seeking to recover the sum of $20,000.00, growing out of a real estate transaction in which it claimed to be entitled to a broker’s commission. The suit was against the seller, Parkwood, Incorporated, an appellee in No. 16,147, the purchasers, H. Max Ammerman and Irving S. Lichtman, also appellees in No. 16,147, arid Jerome S. Murray, appellant in No. 16,148. The judgment sought against Murray was based on the theory that he had purported to act as agent for Parkwood, Incorporated in the real estate transaction but that he was without authority from Parkwood to do so. The question whether Weinberg & Bush, Inc. was the procuring cause of the transaction was disputed. The trial court found that it was. The matter of the authority of Murray was hotly contested; and, on conflicting testimony, the trial court rendered judgment in favor of Weinberg & Bush, Inc. against Murray on the ground that he had acted as agent, without authority. Murray duly noted his appeal in the case which is now No. 16,148. Insofar as Parkwood, Incorporated was concerned, the court found that it did not hire Weinberg & Bush, Inc. nor authorize Murray or any one else to do so. Insofar as Ammerman and Lichtman were concerned, the court found that no valid claim for relief existed. The court rendered judgment in favor of Parkwood, Incorporated and Ammerman and Lichtman against Weinberg & Bush, Inc. In order to protect itself in the event the judgment against Murray was reversed, Weinberg & Bush, Inc. appealed in the case which is now No. 16,147. We are unable to say that the findings in favor of Weinberg & Bush, Inc. against Murray are clearly erroneous. Accordingly, the judgment against Murray, in No. 16,148, is affirmed. It is conceded by Weinberg & Bush, Inc. that if the judgment against Murray were affirmed, the judgment against Weinberg & Bush, Inc. in favor of Park-wood, Inc. and Ammerman and Lichtman should likewise be affirmed. Therefore, the judgment in No. 16,147 is affirmed. No. 16,148 affirmed No. 16,147 affirmed. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:

songer_suffic

A

What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" 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. Earl JONES, Robert Glen Hyams, Connie Janko, Tommy Duane Ramsey, Deborah Sue Ramsey and Conrad Janko, Defendants-Appellants. Nos. 76-2153, 76-2194 to 76-2198. United States Court of Appeals, Tenth Circuit. Argued and Submitted May 8, 1978. Decided June 12, 1978. John E. Green, First Asst. U. S. Atty., Oklahoma City, Okl. (Larry D. Patton, U. S. Atty., Oklahoma City, Okl., on the brief), for plaintiff-appellee. Jo-Ann Askins, Oklahoma City, Okl., for defendant-appellant Jones. Thomas D. McCormick, Oklahoma City, Okl., for defendants-appellants Hyams, Jan-kos and Ramseys. Before SETH, Chief Judge, and LEWIS and DOYLE, Circuit Judges. WILLIAM E. DOYLE, Circuit Judge. I. The appellants who now appear before us, with the exception of Robert Hyams, were present in United States v. Heath, et al., Nos. 76-2158-65. Earl Jones, Tommy and Deborah Ramsey and Connie and Conrad Janko were previously tried in Heath. The jury in Heath was unable to agree as to their guilt, and as a consequence a mistrial was granted as to each of them. But in the present case all were convicted, as was Robert Hyams, of conspiracy to distribute heroin, contrary to 21 U.S.C. § 846. In addition, Earl Jones was convicted of violating 21 U.S.C. § 952, importation of heroin. In this court Jones has filed a separate brief. The remaining defendants have joined in a single brief, which advances the identical points. Their main contention is antagonistic to Jones. Their claim is that the trial court ought to have granted their motion for a severance pursuant to Rule 14 of the Rules of Criminal Procedure following receipt by it of evidence relating to Jones, but inadmissible to them and which they contend is prejudicial to them. Their contention, and a similar one by Earl Jones insofar as it complains of prosecutorial misconduct of Assistant U. S. Attorney Miller, is similar. However, the adversary group of appellants also complain that evidence offered by Jones to impeach a witness and other evidence brought out against Jones and his attorney was prejudicial to them. Also urged by the group of appellants is alleged error of the trial court in rejecting evidence offered by Jones for the purpose of impeaching prosecution witnesses. Earl Jones argues: 1. The prosecutorial misconduct of Duane Miller. 2. That he was entitled to be tried separately from the other defendants. 3. That the court erred in restricting Jones’ counsel in his efforts to impeach witnesses Hulsey and Hines. 4. That there was insufficient evidence in support of his conviction on the charge of importation of heroin. As mentioned, this case is a sequel to United States v. Heath, et a 1. Inasmuch as we detailed the evidence in our opinion in Heath, it is only necessary to describe those parts of the evidence which relate to the legal problems advanced by appellants. II. Mary Jo Hulsey was the principal witness for the prosecution in the present case. She had been deeply involved in the importation of the heroin. The supply thus obtained resulted in widespread wholesale and retail sales. She described the importation by her. She would obtain a large sum of money, several thousands from Jones or Heath, and would walk across the border with the heroin secreted inside her person. Jones introduced her to Roger Sanders, who instructed her concerning secreting the heroin and crossing the border. After being instructed, she made this trip on numerous occasions under the direction of Roger Sanders. In each instance she purchased about four ounces of heroin and used Jones’ money or that of Heath to buy the heroin. After she had obtained it and it had been cut, she would deliver it to Heath or Jones. She named a number of people who had purchased heroin from Jones. The purchasers are described as follows: Peggy Hines testified that she had purchased heroin from Jones several times. Barry Bolding testified that he had sold heroin for Vernon Heath, and that after his arrest in January 1976, he had cooperated with the police in an effort to arrange a buy from Heath, but could not reach him. He was told by the appellant Robert Hyams that Heath was out of town and that he, Hyams, was handling the heroin for Heath. Bolding thereupon agreed to purchase three ounces from Hyams for $3,300. He was unable to make contact with Hyams, but succeeded in contacting Hyams’ wife, who said that she could provide the heroin. She was asked to bring it to Bolding’s apartment and when she did she was arrested. A search of her car disclosed the heroin in her car. According to Bolding, Heath was living at Hyams’ house and when he went there Heath would have Hyams pick up the heroin for him. An undercover police officer, Gillum, testified that he had purchased heroin from Connie Janko once and had made arrangements to buy more the next day. She said that she would get it from Tommy and Debbie. The next day he met Connie and Conrad Janko and gave Conrad $200 for heroin. They agreed to make the delivery at a supermarket lot. The Jankos were followed to the home of Tommy and Debbie Ramsey, where they stayed for a few minutes and then proceeded to the grocery store. Conrad Janko was arrested there and attempted to throw down a plastic bag containing heroin. A warrant was obtained, a search was made of the Ramsey house and this revealed heroin in a shed in the back yard. The evidence of Eddie Lawson was that the Ramseys were in the heroin business and that he had purchased from them frequently. He said that they obtained their heroin from Donald Babb, Heath’s nephew, and that he had gone with Tom Ramsey to buy heroin from Emit Powell, who was shown to have been a major figure in the Heath organization. The testimony which is most crucial to this appeal is that pertaining to the cross-examination of Mary Jo Hulsey involving as it did the introduction of a cassette tape that she made at the behest of Jones’ attorney repudiating the testimony at the first trial. This is the background for the alleged prosecutorial misconduct. All of this came to the surface as a result of Hulsey’s unsuccessful effort to avoid testifying at the trial. In fact, she failed to appear at the trial on the appointed day. When she finally appeared Jones’ attorney cross-examined her asking her about having failed to appear for trial on the date which was originally set. She said that she had stayed in a motel in Tulsa that night and that she had seen Darryl Sneed, an individual who had acted as her bodyguard prior to her arrest for possession of heroin. It was at this point in the cross-examination by Gregg that Duane Miller interrupted to call attention to the fact that Gregg had placed a cassette tape on the lectern. Miller asked that the tape be marked as an exhibit. Gregg said that the tape was his “work product” and would be introduced in evidence at the proper time. Gregg proceeded to ask Mary Jo Hulsey whether she had made a tape recorded statement in the presence of Sneed and another person. She said yes, but that the statement which she had made was untrue; that she had made it because she had been made to feel bad about things and thought that if she made the tape she would not be charged with a crime; that no one would be angry with her any more and that she “would have enough money to leave here on and transportation.” Later she said that she had regretted the lie. Gregg did not offer the tape at once and so Miller, the prosecutor, asked that the court seize it as “evidence of another crime.” Miller then said that the tape evidenced tampering with the witness. Gregg responded that he did not think that Miller should be making accusations. The trial judge then said “I don’t think you should either.” In response to questions of Miller asked on redirect, Hulsey explained the circumstances surrounding the making of the tape. Sneed had approached her about it and had indicated that no charges could be brought against her. Gregg called one Eugene Kralik, who testified that he was a friend of Gregg’s and that he, in the company of Sneed, had gone to a motel where they obtained the statement that was on the tape. Kralik testified that there was no mention of any bribes or inducements and that he had no reason to believe that the statement was not voluntary. He further said that it was Sneed who approached Gregg about selling information for $5,000 and that Gregg was very surprised. Kralik said that they agreed that they would pay if the information was useful and voluntary, but following the recording he had switched tapes on Sneed and had not paid him anything. The court cautioned the jury once again that the matters having to do with this testimony pertained to Jones, the defendant, but not to any of the other defendants. A similar tape, which also sought to repudiate past testimony, was made by Peggy Hines, who said that one Nancy James had told her that she should get in touch with Mr. Gregg, who would know a way to avoid testifying. She stated that she had spoken to appellant Jones on the telephone and that he had asked her to contact his attorney. She said that on either the 22nd or 28th of October, she had gone to Gregg’s office and made a tape recanting her prior testimony that she had bought heroin from Jones. On the witness stand she said that this had been a lie; that she had made the statement in order to avoid testifying again. She also said that she had seen Earl Jones at Gregg’s office on this occasion, for part of the time. Gregg at first denied having this tape, but later said that he did have one which was made on October 12, in which she discussed pressures put on her by the government to testify. This was never received. We have taken up the testimony concerning the tapes in some detail because they show the efforts to persuade Hulsey and Hines not to testify, together with the testimony that was given implicating Gregg in the purchase of a drug from Hulsey. Although generally collateral, we must consider whether it is prejudicial, first, to Jones, and, secondly, the other defendants. III. WHETHER JONES WAS PREJUDICED, WHEREBY HE WAS ENTITLED TO A REVERSAL AS A RESULT OF THE PROSECUTORIAL MISCONDUCT The argument of Jones is that serious error arises from the fact that Duane Miller, the Assistant U. S. Attorney, accused Carroll Gregg, Jones’ attorney, of committing a crime (tampering with a witness). Counsel says that Miller set out to destroy Jones’ attorney and he thereby deprived him of counsel. The difficulty with this is that it was Gregg who, while cross-examining Hulsey, produced the tape which had been made of the interview with Hulsey. This tape was made not long before Hulsey was called to testify. Gregg asked Hulsey about her failure to appear for trial as originally set the previous Monday, November 1, 1976. He brought out testimony that she had stayed in a motel in Tulsa. It was then that he placed the cassette tape on the lectern and asked to have it marked as an exhibit. It is true that Miller asked that the cassette be offered as evidence of another crime, and he then explained that it was evidence of tampering with a government witness. In the tape which, by the way, Gregg claimed as his “work product,” Hulsey, it will be recalled, stated that her testimony previously given was false. She also said that testimony which she had given at the previous trial about delivering a drug to the office of Mr. Gregg was also false. At the trial she testified as to how all of this recording took place. Since Gregg insisted that the tape be put into evidence for the purpose of discrediting Hulsey as a witness, Jones has little standing to object. In determining admissibility of this tape, the trial court faced a dilemma. Gregg, Jones’ lawyer, was insisting that it be put into evidence. If the court, in the face of this, had rejected it on the ground that it would open up collateral matters, Jones and his present counsel would be arguing that the trial court had deprived them of a right to impeach the testimony of the government’s principal witness Hulsey. In the light of this, we do not consider the trial court’s action in receiving the tape to be error. The statement of Gregg that the cassette recording was his work product is to be accepted. It ties the preparation of the tape to Jones. Gregg’s efforts were on behalf of his client, Jones, and this raises a formidable reason for rejecting Jones’ contention that the case should be reversed on account of Gregg’s activities on behalf of his client Jones. The fact that it proved to be ill-designed strategy does not change the result. We must also take cognizance that a similar tape was made of the witness Peggy Hines, who said that she had talked to defendant Jones on the telephone and that Jones had asked her to contact his attorney Gregg and that she had gone to Gregg’s office and there recorded a statement recanting all of her prior testimony wherein she had said that she had bought heroin from Jones. Appellant Jones was allegedly at Gregg’s office at the time of the making of the tape. At trial, of course, she repudiated the statement made on the cassette, saying that it was a lie. It is not argued by Jones that Gregg’s representation was incompetent. The emphasis by different counsel centers on the proposition that Miller was guilty of accusing Jones of tampering with the witness. Our view of the foregoing is that Gregg opened up this entire collateral proceeding and that he did so in the hope that he would be able to discredit the witness Hulsey. In fact, he insisted on putting the cassette tape in evidence. He thus opened the door to the entire matter having to do with the Hulsey tape and the circumstances under which it was made, and this was a trial strategy decision on his part. So, therefore, Jones cannot, on the one hand, seek to exploit this collateral evidence for his own purposes and at the same time take advantage of it for getting a mistrial or a reversal. In Samuels v. United States, 397 F.2d 31 (10th Cir. 1968), we recognized that the “fabrication of evidence of innocence is cogent evidence of guilt.” Id. at 32. The evidence was not, therefore, irrelevant from the prosecutor’s viewpoint. It is, of course, improper for the district attorney to imply that defense counsel has been involved in subornation of perjury, particularly in the absence of evidence that he had. See Weathers v. United States, 117 F.2d 585 (5th Cir. 1941), cert. denied, 316 U.S. 681, 62 S.Ct. 1267, 86 L.Ed. 1754 (1942); United States v. Agueci, 310 F.2d 817 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1016,10 L.Ed.2d 12 (1963). The cases cited were unlike our case in that evidence was lacking to support the accusations and insinuations. In this case there was actual proof of an attempt to change testimony previously given. Specific reference is made by Jones to Miller’s emphasizing by repetition the testimony of Hulsey that she delivered a drug to Gregg’s law office. Hulsey referred to her previous testimony and repudiated it. This repudiation was contained in the embattled tape. Since Gregg introduced this tape, Miller was entitled to question Hulsey about it on recross-examination. Since, however, it was collateral to the main case, the recross-examination should have been more carefully controlled. The court could have limited this testimony to the matter of rehabilitating the testimony of Hulsey. Going beyond this object constitutes prosecutorial misconduct. Thus to assert in argument that counsel for the defense was an accomplice in the crime being tried would constitute misconduct. See Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). The final question is whether the emphasis placed by the district attorney on this testimony of Hulsey that she delivered narcotics to Gregg at his office gives Jones a right to reversal. Given the fact that it was appropriate for Miller to bring it out in connection with restoring Hulsey’s testimony, does the emphasis of it by Miller in an apparent effort to exploit it constitute a basis for reversal? We conclude that it does not. If we were to reverse on this ground, the reversal would be primarily a sanction against Miller. Jones argues that Miller’s conduct in emphasizing and perhaps exploiting the testimony of Hulsey that she delivered narcotics to Gregg’s office constitutes a basis for reversal. We do not agree. Jones’ counsel in an effort to discredit Hulsey as a witness effectively created the condition. We are unwilling, in view of that fact, to reverse the cause on that account. IV. WAS IT ERROR TO DENY THE MOTION OF JONES FOR A SEVERANCE? Jones maintains that the decision to join all of these defendants was improper under Rule 8(b) of the Fed.R.Crim.Proc. The limiting standard of Rule 8(b) is in terms of misjoinder unless the several defendants have participated in “the same act or transaction or in the same series of acts or transactions” constituting the offense. Jones argues that the evidence against the other defendants constituted unrelated acts applicable to the other defendants. Jones overlooks that the evidence showed that he and the others were part of a single conspiracy in which he had a major role. The evidence established that Jones was directly involved in the importation of heroin in conjunction with the defendant Heath, who was convicted at a prior trial. It was Jones who originally (in June or July of 1975) solicited Hulsey to transport heroin from Mexico. He and Hulsey flew from Oklaho- ma City to Tucson in the summer of 1975 and they rented a car and drove to Nogales, Mexico, where they met Roger Sanders. Hulsey accepted a package from Sanders and smuggled it across the border. Hulsey testified after this first trip that she crossed the border numerous times for either Sanders or Jones. Thus there is ample evidence that Jones’ role in the conspiracy was extensive; so there is scant basis for his contending that it was error, judged by Rule 8(b), supra, to join him in the indictment in which the other defendants were named. The fact that the charge is conspiracy and that the evidence showed the necessary interrelationships justifies the joinder, and the fact that there was not a direct connection between all of the defendants does not require that there be a severance where as here, there is shown to be a general interrelationship. See United States v. Jorgenson, 451 F.2d 516 (10th Cir. 1971), cert. denied, 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793 (1972); United States v. Bryant, 364 F.2d 598 (4th Cir. 1966); 8 Moore’s Federal Practice § 8.06[2]. Cf. Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960). V. WAS IT ERROR FOR THE COURT TO DENY THE MOTIONS FOR SEVERANCE INTERPOSED BY THE DEFENDANTS OTHER THAN JONES? The defendants-appellants Hyams, the Jankos and the Ramseys contend that the trial court erred in denying their motion for severance when the evidence discussed above concerning the conduct of attorney Gregg was brought out. They say that there was an accusation of witness tampering and of delivering of cocaine to Gregg, and that the jury heard extensive evidence concerning this activity including the proposal to Hulsey that she was to receive $5,000 with an automobile for changing her testimony on the tape, which tape was in the possession of Gregg when he cross-ex- amined her. The jury, they say, heard all about how the tape was made by Kralik and Gregg in Tulsa and switched tapes with Sneed, whereby he got a blank one. That, together with the testimony concerning how Hines stated that she lied on a tape which she gave to Carroll Gregg, having received assurances from Gregg through a third person that she would not have to testify in court again. The defendants-appellants concede that evidence which relates only to one co-defendant is not per se improper under United States v. Pauldino, 443 F.2d 1108 (10th Cir. 1971), cert. denied, 404 U.S. 882, 92 S.Ct. 212, 30 L.Ed.2d 163 (1971). It is said that notwithstanding the cautionary instruction of the court the severance should have been granted. They rely on United States v. Clark, 480 F.2d 1249 (5th Cir. 1973); United States v. Tanner, 471 F.2d 128 (7th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972); and United States v. Scott, 555 F.2d 522 (5th Cir. 1977). The cases cited make a distinction as to the prejudicial effect of testimony that does not bear directly on the guilt of the complaining defendants. Thus where the evidence relied on for severance is peculiarly damning to the person against whom it is relevant and at the same time particularly unrelated to the remaining defendants, there do not exist the same reasons for granting a mistrial or a severance. We conclude that the evidence in this case is not of such a nature that it prejudices these defendants. Rule 14, the rule relied on, states that if the defendant or the government is prejudiced by joinder of offenses or defendants in an indictment or by joinder for trial, the court may grant a severance of defendants or provide whatever other relief justice requires. This Rule recognizes that the granting or denial of such a motion is within the discretion of the trial court. There was a valid basis for the trial court’s denial of the motion. We are convinced that the cautionary instructions given by the court, together with the fact that the evidence in its nature and character was so applicable to Jones and so plainly inapplicable to the remaining defendants, so as to preclude the necessity for granting the severance motion. VI. WHETHER THE TRIAL COURT ERRED IN DENYING THE OFFER OF JONES TO INTRODUCE THE TAPE OF PEGGY HINES, WHICH SUPPOSEDLY CONTRADICTED HER TESTIMONY GIVEN AT THE PREVIOUS TRIAL THAT SHE HAD HAD HEROIN DEALINGS WITH JONES Immediately following the testimony of Peggy Hines, attorney Gregg denied having the cassette tape that was made in his office or, for that matter, knowing anything about it. However, when it came time to put on his own defense, he sought to introduce it and the court denied the offer. Inasmuch as Hines had admitted making a prior inconsistent tape statement, that is when the tape was made, the court’s ruling is not erroneous because the tape would have been cumulative. The principle is that where it is sought to impeach a witness by showing a prior inconsistent statement and the witness admits the prior inconsistent statement, the witness is thereby impeached and further testimony is not necessary. United States v. Eaton, 485 F.2d 102 (10th Cir. 1973); United States v. Roger, 465 F.2d 996 (5th Cir.), cert. denied, 409 U.S. 1047, 93 S.Ct. 517, 34 L.Ed.2d 498 (1972); Ditrich v. United States, 243 F.2d 729 (10th Cir. 1957). Other contentions are raised regarding limitations on defense evidence. These, however, are not advanced as specific points. They are referred to in the statement of the case. Gregg said that he had witnesses to testify that Jones had not been in Gregg’s office when Peggy Hines made the tape. She had said that Jones was there. The court was of the opinion that Gregg should have presented the evidence which discredited or impeached Hines’ testimony at the time rather than making it a matter of defense. If the case were to be retried and such witnesses were to be presented, our disposition would be to direct the trial court to receive testimony. However, the record is so vague concerning the matter in issue and it is so collateral in its nature, that we are unable to perceive serious error in the rejection of the general offer. The other defendants argue that they were prejudiced by this. We conclude that they have no interest in the issue. ****** Finally, we consider whether the evidence is sufficient against Jones to support the charge of importation of heroin on or about the 29th of September 1975. The question that Jones stresses is that Hulsey had some confusion about dates and that no such transaction occurred on September 29. But the important point is that she testified unequivocally that about this time Jones and Heath supplied money to her with which she bought heroin in Mexico. She then brought it to Roger Sanders for cutting and thereupon delivered the cut heroin to Heath and Jones. This is sufficient proof. We are convinced that the record is free of substantial error, and accordingly we conclude that the judgments should be and the same are hereby affirmed. . The actual questions and answers shown by the transcript are as follows: Q: Did he indicate to you that he had discussed that with the lawyer or had some information from a lawyer that those things were true, that if you lied, gave them a lying statement, that no charge could be brought against you? A: Yes, sir. Q: And he indicated that this came from a lawyer, that he had been advised by a lawyer that that was true? A: Yes, sir. Q: What else did he tell you? A: That — that was about it, that if, that if I did this it would take, it would take care of a lot of things. Q: Did he say what things it would take care of? A: No, sir, he didn’t. He didn’t really say, but said there was no way I would, that charges could be filed on me, and that it would help some other people that I had hurt. Q: Did he offer you anything else at that point? A: I was going to get $5,000— Q: Wait a minute. You were going to get $5,000 for giving this statement, is that what you are saying? A: He didn’t put it on me like — he just put it to me that I would have enough money to live on for awhile until I could find a job. Q: Where did the $5,000 figure come in? A: That’s what he said. He said that I would have $5,000 to live on and transportation to help me go somewhere. Q: And a car? A: Yes, sir. Q: He was going to give you $5,000, or somebody was going to give you $5,000. and a car if you would lie about your testimony, is that correct? A: Yes, sir. (Tr. 178-79) Miller then asked her about the substance of the statement: Q: Okay, let’s talk about Carroll Gregg first. What did he ask you about Carroll Gregg, and that’s Earl Jones’ lawyer over here. What was asked, what question was asked about Carroll Gregg . . . ? A: He asked me — I said that it was not true that I had ever delivered any kind of drug to his office and— Q: To whose office? A: To Mr. Gregg’s office. Q: All right. A: And that he had never questioned me to, for any drugs of any sort. Never came to me and asked for me to deliver any to him. (Tr. 190) At this point an objection was raised by one of the defense counsel that evidence about Mr. Gregg was not relevant. The court agreed that the objection was well taken and declared the overnight recess. A motion for mistrial was overruled. The next morning, in chambers, Mr. Gregg insisted that he wanted to put the tape on as evidence of prior inconsistent statements by Hulsey. He felt that her testimony was sufficiently inconsistent that her present assertion that the tape was a lie was not sufficient to “taint” it. The court somewhat reluctantly said that he would be allowed to put the tape on but only on recross, as going only to her credibility, rather than during the course of his regular defense. The court instructed the jury that the evidence they had heard and would hear about what Mary Jo had done when she failed to show up for trial related only to Jones and that they must disregard it as far as any other defendant was concerned. Mr. Miller then continued his redirect examination, again dwelling on the subject of Mr. Gregg: Q: All right, will you tell us what that statement was that you made on the tape concerning Carroll Gregg? A: Well, during the last trial it came out that I had delivered some cocaine to his office and I— Q: Carroll Gregg’s office? A: Yes, sir. Q: For Carroll Gregg? A: Yes, sir. Q: All right. A: And that I was to deny doing this. Q: What did you say on that tape that you were making on the 2nd of November in Tulsa about Carroll Gregg and that delivering cocaine to his office to him? A: That I had never delivered it there. Q: All right, was that a lie that you said on the tape? A: Yes, sir. (Tr. 210) The objections to this line of questioning were not renewed here. Hulsey went on to recount that on the tape she had said that she had never had any heroin dealings with Jones or Heath. All this, she said, was false. She said that after the tape had been made, Sneed made a phone call and then told her to turn herself in to a woman named Nancy Risner at the KWTV station. Questioning her about her talk with Risner, Miller again brought up Gregg: Q: Did she make any mention to you as to who your lawyer might be? A: Yes, sir. She asked me if Carroll Gregg was my lawyer. Q: What did you tell her? A: No, he wasn’t. Q: Did she at any time mention to you the close personal, did Nancy Risner mention to you the close personal relationship that she has with Carroll Gregg and members of his law firm? A: No, sir. (Tr. 214-15) In conclusion, Hulsey testified that she had never actually received anything for making the tape and that she had changed her mind about it because she couldn’t swear to a lie. Question: Did the court rule that there was insufficient evidence for conviction? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed 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. UNIVERSIDAD CENTRAL DE BAYAMON, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Union de Profesores Universitarios, Intervenor. No. 85-1074. United States Court of Appeals, First Circuit. Heard Sept. 12, 1985. Decided Dec. 4, 1985. Opinions En Banc June 13, 1986. Coffin, Circuit Judge, filed an opinion in which Bownes, Circuit Judge and Bailey Aldrich, Senior Circuit Judge, joined. En banc opinion of Breyer, Circuit Judge Carole O’Blenes with whom Saul G. Kramer, Proskauer Rose Goetz & Mendel-sohn, New York City, and Dominguez & Totti, Hato Rey, P.R., were on brief, for petitioner. Barbara A. Atkin with whom Howard E. Perlstein, Washington, D.C., were on brief, for the N.L.R.B. Before COFFIN, ALDRICH and TOR-RUELLA, Circuit Judges. COFFIN, Circuit Judge. Universidad Central de Bayamon petitions for review of a National Labor Relations Board decision finding violations of the National Labor Relations Act and requiring the University to enter into collective bargaining with the union elected to represent full-time teachers at the University. The University contends that, because it is an institution under the control of a religious order, NLRB jurisdiction would produce excessive entanglement between government and religion in violation of the First Amendment’s free exercise and establishment clauses. The Board cross-petitions for enforcement of the order, and the Union de Profesores Universitarios, charging party before the Board, intervenes. For reasons stated below, we find that the Board properly asserted jurisdiction over the University and that such jurisdiction does not violate the First Amendment. I. FACTS The Universidad Central de Bayamon is a private, nonprofit university governed by a Board of Trustees, the majority of whom must be and are members of the Dominican Order. The University describes itself as a “Catholic-oriented civil institution,” which has as its objective “that of providing a humanistic education at an academic level.” The University’s full-time faculty includes approximately 49 lay teachers and 4 or 5 priests. There is no requirement that the lay faculty be of the Catholic faith, although most are Catholic. The University “welcomes students of all denominations and faiths”. On October 30, 1979, the Union de Profe-sores Universitarios (the “Union”) filed a representation petition with the Board, seeking certification as the bargaining representative of all full-time teaching personnel at the University. The University opposed the petition, in part on the grounds that the Board’s assertion of jurisdiction would constitute an impermissible entanglement between government and religion. The Board’s Regional Director rejected the University’s position, finding that the University’s aim of providing a “ ‘humanistic education at an academic level’ ” was “entirely secular.” The' University’s request for review of the Regional Director’s decision was denied by the Board as raising “no substantial issues warranting review.” In a ballot election, the vote of the faculty was 41 to 9 in favor of representation by the Union and the Union was certified on February 7, 1980. Standing by its belief that the Board had improperly asserted jurisdiction, the University refused to bargain with the Union. In May and July of 1980, the University promulgated hew requirements regarding faculty credentials without notifying or bargaining with the Union. Six professors were discharged in May and two professors were discharged in July for failing to meet the new requirements. Because of the University’s refusal to bargain, the Union struck the University in September 1980, but returned to work unconditionally in November 1980. Fifteen striking employees were not reinstated by the University. The Union brought unfair labor practices proceedings in 1980 and 1981, complaining of the University’s refusal to bargain, its unilateral changes in employment conditions, and its failure to reinstate the strikers. Hearings were held before an administrative law judge in March 1982 and March 1983. The AU found the University had not adduced any new evidence concerning its religious character that would justify overturning the Regional Director’s decision regarding the Board’s jurisdiction and that no impermissible entanglement between government and religion would occur as the result of such jurisdiction. In December 1984, a three member panel of the NLRB affirmed the AU’s finding that jurisdiction over the University was proper because its “academic mission is secular”. The Board ordered the University to bargain collectively with the Union upon request, to rescind the unilateral changes upon request of the Union, and to offer those employees discharged or denied reinstatement full and immediate reinstatement to their former positions. II. FIRST AMENDMENT CLAIM The University contends that the Supreme Court decision in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), requires us to find that the NLRB has no jurisdiction over a religiously affiliated institution such as the University. In Catholic Bishop, the Supreme Court held that the exercise of NLRB jurisdiction over lay teachers in two Roman Catholic parochial schools presented a “significant risk” of infringing the establishment clause of the First Amendment and therefore, absent an affirmative intention of Congress, the Court would not interpret the National Labor Relations Act as conferring such jurisdiction. 440 U.S. at 501-09, 99 S.Ct. at 1319-23. The University argues that allowing NLRB jurisdiction over a religiously affiliated university would create a similar risk of violating both the establishment and free exercise clauses of the First Amendment. Because we find that the religious nature of the University is significantly different from that of the Catholic secondary schools at issue in Catholic Bishop, and because we find that NLRB involvement with the University will be circumscribed in important ways, we conclude that NLRB jurisdiction over the University will not create a significant risk of violating either the establishment or free exercise clause. We therefore decline to extend the holding of Catholic Bishop to the University in this case, and hold that the jurisdiction assumed on the authority of the National Labor Relations Act is proper. A. Establishment Clause To determine whether application of the National Labor Relations Act to the University presents a significant risk of violating the establishment clause, we apply the three-part test set out by the Supreme Court: (1) the statute must have a secular purpose; (2) the statute’s primary effect must neither advance nor inhibit religion; and (3) the statute must not foster excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). There is no doubt in this case that NLRB jurisdiction meets the requirements of having a secular purpose and effect. In determining whether it also meets the standard of not fostering excessive entanglement between government and religion, however, we must look at several related factors: the character and purpose of the institution affected, the nature of the activity engaged in or mandated by the government, and the resulting relationship between government and the religious organization. Lemon v. Kurtzman, 403 U.S. at 615, 91 S.Ct. at 2112. 1. Nature of the Institution In Catholic Bishop, the Supreme Court found a significant risk of entanglement by focusing primarily on the nature and purpose of the institutions affected. According to the Court, the holding in Catholic Bishop was premised on the “critical and unique role of the teacher in fulfilling the mission of a church-operated school”. 440 U.S. at 501, 99 S.Ct. at 1319. The Supreme Court noted that the schools in Catholic Bishop were similar to those at issue in Lemon v. Kurtzman; in both cases, “[r]eli-gious authority necessarily pervades the school system”. 440 U.S. at 501, 99 S.Ct. at 1319 (quoting Lemon v. Kurtzman, 403 U.S. 602, 617, 91 S.Ct. 2105, 2113, 29 L.Ed.2d 745 (1971). In Lemon and its progeny, the “key role” played by teachers in religious elementary and secondary schools was “the predicate for [the Court’s] conclusions” that governmental aid to such schools creates an impermissible entanglement between government and religion. Catholic Bishop, 440 U.S. at 501, 99 S.Ct. at 1319. In Catholic Bishop, the Court found that Board jurisdiction over faculty-administration relationships in schools permeated with a religious mission would similarly create a significant risk of entanglement. Catholic Bishop, 440 U.S. at 502-03, 99 S.Ct. at 1319-20. The Central Bayamon University differs significantly from the secondary schools at issue in Catholic Bishop. There is no doubt that the University is a religiously affiliated school and that religion is a facet of the school’s existence. The University was founded by the Dominican Order in 1961 and was incorporated as a non-profit association in 1964 by three Dominican priests. The University is governed by a Board of Trustees, the majority of whom must be and are members of the Dominican Order. The President of the University, who has broad powers and authority, similarly must be a member of the Dominican Order. The University defines itself in its bylaws and school bulletin as a “Catholic-oriented” institution, requires its students to take one course in theology and three in philosophy, and it offers regular masses in a church adjoining the campus. Despite these religious aspects, however, the University’s religious character is significantly less dominant than that of religious elementary and secondary schools. The University defines its objective as the provision of a “humanistic education at an academic level” and has an open admissions policy, recruiting applicants of all creeds. Hiring of faculty personnel is made on the basis of ability and experience; University bylaws require only that applicants “possess the appropriate academic degrees, be of a sound moral character and show traits of pedagogical qualities”. The University does not require any religious observance on the part of its lay faculty and guarantees them full academic freedom. Since 1970, apart from receiving government funds, see n. 7, infra, the University has been financially self sufficient. Although the University offers masses at a church adjoining the campus, attendance by students is optional. The one required theology course, Analysis of Biblical History and Literature, is taught by both lay and religious faculty and focuses on an historical and literary analysis of Biblical texts. The teachers are not required to follow a specified religious analysis. The three required philosophy courses — ethics, logic, and the philosophy of man — cover a wide variety of thinkers, including religious and atheist writers. Painting, as we are required to do, a “general picture of the institution, composed of many elements”, Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 758, 96 S.Ct. 2337, 2350, 49 L.Ed.2d 179 (1976), we find that the University meets the picture of an “institution with admittedly religious functions but whose predominant higher education mission is to provide their students with a secular education”. Tilton v. Richardson, 403 U.S. 672, 687, 91 S.Ct. 2091, 2100, 29 L.Ed.2d 790 (1971). The mandatory theology and philosophy courses “only supplement a curriculum covering ‘the spectrum of a liberal arts program’ ” and are taught “in an atmosphere of intellectual freedom”. Roemer, 426 U.S. at 755-57, 96 S.Ct. at 2349-50. The “central purpose” of the faculty is not “the inculcation of religious values” in the student body, Cuesnongle v. Ramos, 713 F.2d 881, 883 (1st Cir.1983) (finding Central University of Bayamon to be less pervasively religious than a parochial school), but is rather to provide a high quality academic education. Thus, as with other religiously affiliated universities analyzed by the Supreme Court, see Roemer, 426 U.S. at 755-59, 96 S.Ct. at 2349-51; Hunt v. McNair, 413 U.S. 734, 743-44, 93 S.Ct. 2868, 2874, 37 L.Ed.2d 923 (1973); Tilton, 403 U.S. at 685-89, 91 S.Ct. at 2099-2101, we find that “religious indoctrination is not a substantial purpose or activity” of the University. Tilton, 403 U.S. at 687, 91 S.Ct. at 2100. The fact that the Dominican Order controls a majority of the University’s Board of Trustees does not change our analysis. In Tilton, 403 U.S. at 686-87, 91 S.Ct. at 2099-2100, the four colleges were admittedly governed by Catholic religious organizations, and in Hunt, 413 U.S. at 743-44, 93 S.Ct. at 2874, the college was wholly controlled by the South Carolina Baptist Convention. See also, Roemer, 426 U.S. at 758-59, n. 21, 96 S.Ct. at 2350-51, n. 21 (even where religious organization wholly controls a college, the college may still be found not to be “pervasively sectarian”). Thus, although we have little difficulty in accepting that the statement by the Archbishop of San Juan that the University was “not a Catholic university” merely reflected a power struggle between the Dominican Order and the Catholic hierarchy over control of the University, we do not find the issue to be of overwhelming importance. Even accepting that the Dominican Order, a clearly religious organization, controls the University, we find that the “general picture” of the University remains one of a more secular, rather than sectarian, university. We also note that it is precisely because the University is similar in character to the colleges in Tilton, Roemer, and Hunt that it is able to receive governmental aid. Although the fact that the University is eligible for federal aid is not dispositive of the Catholic Bishop inquiry, see infra p. 911, it is relevant to the analysis of the institution’s religious nature. Indeed, the Supreme Court in Catholic Bishop referred to the aid-to-school cases in its analysis of the risk of entanglement that could ensue between the religious parochial schools and the government. Catholic Bishop, 440 U.S. at 501-04, 99 S.Ct. at 1319-20. Based on our review of the record, we affirm our earlier ruling that the University is distinctly different from a religious elementary or secondary school. Cuesnon-gle v. Ramos, 713 F.2d 881, 883 (1st Cir. 1983). A religious mission does not pervade the entire University system, with teachers playing a key role in the transmission of a particular religious faith to the student body. Thus, the very premise on which Catholic Bishop was based — that a significant risk of entanglement existed because of the unique role played by teachers in secondary schools — is conspicuously absent here. We therefore decline to extend the holding of Catholic Bishop to the University simply on the basis of the University’s religious character. Further, we do not find that the jurisdiction subsequently conferred would create an impermissible entanglement between government and religion because of the University’s religious nature. 2. Nature of NLRB Activity The fact that the University is not identical to a parochial school does not, however, end our inquiry. As we noted above, whether governmental activity engenders excessive entanglement with religion is the result of several related elements; apart from the character and purpose of the institution affected, we also look at the nature of the activity engaged in or mandated by the government, and the resulting relationship between government and the religious organization. Lemon, 403 U.S. at 615, 91 S.Ct. at 2112. In Catholic Bishop, the nature of the schools was so pervasively religious that the Court easily found a strong likelihood of entanglement. It is possible, however, that even in only partially sectarian institutions, a significant risk of entanglement could exist if the governmental activity involved was such that it directly affected the particular religious facets of the institution. We conclude, however, that NLRB involvement with the University would not be of the kind that would create an impermissible entanglement between government and religion. First, the Board will become involved with the University only at the point that an unfair labor practice charge is filed. Radio Officers’ Union v. NLRB, 347 U.S. 17, 53, 74 S.Ct. 323, 342, 98 L.Ed. 455 (1954) (without a charge, the Board has no authority to issue a complaint); NLRB v. Vemi-tron Electrical Components, 548 F.2d 24, 27 (1st Cir.1977) (Board can only proceed when charge is filed and employer named as respondent). After the filing of a complaint, the Board does have broad authority to make a full and complete investigation. NLRB v. Fant Milling Co., 360 U.S. 301, 308, 79 S.Ct. 1179, 1183, 3 L.Ed.2d 1243 (1959). But the Board does not have carte blanche to expand the charge as it wills; it is limited to “ ‘practices which are related to those alleged in the charge and which grow out of them’ ”. Id., quoting National Licorice Co. v. NLRB, 309 U.S. 350, 369, 60 S.Ct. 569, 579, 84 L.Ed. 799 (1940). This activity on the part of the Board is quite different from the continuous auditing surveillance feared by the Supreme Court in Lemon, 403 U.S. at 619, 91 S.Ct. at 2114. (“A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these [government] restrictions are obeyed and the First Amendment otherwise respected.”) This restricted involvement of a labor board has been recognized by other courts. In Catholic High School Ass’n v. Culvert, the Second Circuit held that New York State labor board jurisdiction over Catholic parochial schools would not create excessive entanglement between the religious schools and the government. Among other factors, the court noted that “the State Board’s supervision over the collective bargaining process is neither comprehensive nor continuing”. 753 F.2d 1161, 1167 (2nd Cir.1985). The Ninth Circuit, in holding that the NLRB had jurisdiction over a religiously affiliated hospital, explained that “Board jurisdiction will produce only incidental intrusion by requiring examination of [the hospital’s] actions and conduct only with respect to specific charges which may be filed in the limited area of collective bargaining and labor relations”. St. Elizabeth Community Hospital v. NLRB, 708 F.2d 1436, 1442 (9th Cir.1983). Second, many of the unfair labor practices that will be presented to the Board will be entirely secular. For example, in the case before us, there is no assertion by the University that the promulgation of new academic requirements or the denial of reinstatement for the strikers was motivated by any religious considerations. Similarly, among the University’s list of the various potential union demands that could implicate religious concerns, there are a number that are sufficiently secular to be a legitimate subject of union bargaining, with any relevant religious considerations taken into account when necessary. For example, the union could indeed bargain for contract provisions requiring that layoffs of clerical and lay faculty be implemented in some form of a seniority order or could bargain for contract rules requiring that course assignments be made on the basis of faculty preference, with seniority to govern in the event of competing preferences. The University, on its part, in maintaining its position on mandatory subjects of bargaining, would be free to take into account any religious concerns it may have. See NLRB v. Salvation Army of Massachusetts Dor-chester Day Care Center, 763 F.2d 1, 8 & n. 9 (1st Cir.1985). Finally, in a case where a union bargaining demand or a Board order would truly interfere with the University’s religious freedom, the University is free to refuse to bargain with the union or to comply with the order, and to test its position before us. The fact that the University’s religious character is not sufficient to insulate it from Board jurisdiction does not mean that it has completely lost the shield of the First Amendment. See Newspaper Guild v. NLRB, 636 F.2d 550 (D.C.Cir.1980) (although newspaper is not immune from NLRB jurisdiction merely because it is an agency of the press, certain of its activities are legitimately within the zone of First Amendment protection and must be protected in NLRB orders). The University lists a number of union demands that could potentially interfere with the University’s admittedly religious facets. We take quite seriously the University’s concern that certain union demands could potentially interfere with its religious character. We expect, however, that the NLRB will also consider these claims seriously and will ensure that its orders are shaped so as to pass constitutional muster. For example, one of the University’s main concerns appears to revolve around limitations on its freedom to discharge faculty for religious reasons. The law is clear, however, that even a discharge based in part on protected union activity will not be considered an unfair labor practice if the employer can show that the individual would have been discharged in any event for a non-union reason. NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). Such a reason could certainly be one based on religious considerations. Thus, the Board may not find that the University has engaged in an unfair labor practice if the University shows it has discharged an employee for religious reasons. See Catholic High School Ass’n v. Culvert, 753 F.2d at 1168-69. Both in determining whether the University has engaged in an unfair labor practice, and in fashioning a remedial order, see Passaic Daily News v. NLRB, 736 F.2d 1543, 1556-59 (D.C.Cir.1984) (court ordered Board remedy tailored to accommodate newspaper’s First Amendment rights), the Board is constitutionally required to consider and accommodate the University’s legitimate First Amendment rights. In any instance in which the University feels the Board has failed, and that its First Amendment rights have indeed been violated, we stand ready to hear that claim. Thus, given the form of NLRB jurisdiction over the University, and the safeguards that accompany that involvement, we do not find that a significant risk of entanglement between government and religion will occur as the result of this type of governmental involvement with a religiously affiliated institution. Jurisdiction may therefore be assumed under the National Labor Relations Act, and such jurisdiction is constitutional. B. Free Exercise Claim The University argues that allowing Board jurisdiction would create a significant risk of violating the free exercise clause of the First Amendment. According to the University, this violation would occur through the immediate, symbolic invasion of church autonomy, through Board decisions that will impede the University’s free exercise of religion, and through the “chilling effect” that will result from the University’s knowledge that religiously motivated decisions will be subject to review by the Board. To determine whether a statutory enactment would violate the free exercise clause, the Supreme Court has examined: (1) the extent to which a statute actually burdens the exercise of a religious belief, Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 105 S.Ct. 1953, 1963, 85 L.Ed.2d 278 (1985); (2) the existence of a compelling state interest to justify the burden on religious beliefs; and (3) the extent to which an exemption from the statute would impede the objective sought to be advanced by the statute. U.S. v. Lee, 455 U.S. 252, 257-59, 102 S.Ct. 1051, 1055-56, 71 L.Ed.2d 127 (1982); Wisconsin v. Yoder, 406 U.S. 205, 220-21, 92 S.Ct. 1526, 1535-36, 32 L.Ed.2d 15 (1972); EEOC v. Mississippi College, 626 F.2d 477, 486 (5th Cir. 1980). Allowing NLRB jurisdiction over the University would have only a limited effect, if any, on the University’s direct exercise of its religious beliefs. The University does not claim that Catholic doctrine forbids collective bargaining or requires it to engage in unfair labor practices. See St. Elizabeth Community Hospital v. NLRB, 708 F.2d 1436, 1442-43 (9th Cir.1983). There is no evidence that NLRB jurisdiction meets the required standard of having a “coercive effect” on the practice of religion on the part of any members of the University. See Abington School District v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 1572, 10 L.Ed.2d 844 (1963). The University is concerned, however, that its religious freedom could be “chilled” because of the very existence of Board review. This concern is quite possibly overrated by the University because, as discussed above, the Board is required to be sensitive to and to accommodate the University’s religious concerns. However, to the extent that NLRB jurisdiction may create an incidental burden on religion, we find that it is justified by a compelling state interest. There is a compelling government interest in minimizing economic disruptions caused by labor unrest. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 42, 57 S.Ct. 615, 626, 81 L.Ed. 893 (1937). This interest clearly extends to universities. In affirming Board jurisdiction over private, nonprofit educational institutions, we concurred in the Board’s recognition that “universities affect commerce more than they once did, being now more involved in private commercial activity, and receiving extensive federal support”. NLRB v. Wentworth Institute, 515 F.2d 550, 554 (1st Cir.1975). Thus, even if Board jurisdiction has an incidental effect on the exercise of religion, this minimal intrusion is justified by the state’s compelling interest in collective bargaining. See Catholic High School Ass’n v. Culvert, 753 F.2d 1161, 1171 (2nd Cir.1985) (minimal intrusion caused by “chilling” effect justified by New York State’s interest in collective bargaining). III. Inclusion of Dominican Priests in the Bargaining Unit The University contends that the Board improperly included four or five Dominican priests in the unit of “all full-time faculty members”. The University urges that the priests have a “community of interest” with their employer that diverge from those of other employees, and that inclusion of the priests in the bargaining unit would subject them to a “conflict of loyalties”. It notes that, in similar cases, the Board has excluded members of a religious order from a bargaining unit. Carroll Manor Nursing Home, 202 N.L.R.B. 67, 68 (1973); Seton Hill College, 201 N.L.R.B. 1026, 1027 (1973). We need not decide whether, not having raised this objection in the representation proceeding, the University may raise it now, or whether the priests actually have a community of interest with the University that is distinct from that of the other employees. An employer cannot avoid an obligation to bargain with respect to an entire unit of employees by arguing that some employees were improperly included, unless the inclusion of the contested employees would affect the unit’s majority status. See Walla Walla Union-Bulletin v. NLRB, 631 F.2d 609, 614-15 (9th Cir.1980); Glen Manor Home for Jewish Aged v. NLRB, 474 F.2d 1145, 1150 (6th Cir.), cert. denied, 414 U.S. 826, 94 S.Ct. 130, 38 L.Ed.2d 59 (1973). Here, it appears that, at most, five priests were included in the unit. Because the union won by a vote of 41-9, we cannot find that the inclusion of those priests had an effect on the election outcome. The University is free to seek a unit clarification, pursuant to 29 C.F.R. § 102.-60 (b), or may refuse to bargain over the rights of the contested employees so as to bring that particular question before the court. See Walla-Walla Union Bulletin, 631 F.2d at 615. IV. Conclusion The Board’s jurisdiction over the religiously affiliated Central Bayamon University does not create a significant risk of violating the establishment or the free exercise clauses of the First Amendment. Jurisdiction over the University is therefore properly assumed under the National Labor Relations Act. The University’s petition for review is denied and the Board’s order is enforced. . The ALJ did conclude that the University was not required to bargain with the Union concerning any terms and conditions relating to the Center for Dominican Studies in the Carribbean ("CEDOC"). CEDOC is a two-year course of study leading to a Master of Divinity degree in Theology. The primary objective of the program is the formation of candidates for the priesthood. CEDOC has its own board, its own admissions committee and hires and pays for its own professors. The ALJ found that the exercise of NLRB jurisdiction over CEDOC would be improper because of the pervasively religious character of the program. . The panel also affirmed that jurisdiction over CEDOC would not be proper. . As the Ninth Circuit has noted: "The purpose of the National Labor Relations Act is clearly secular — to minimize industrial strife burdening interstate commerce by protecting employees’ rights to organize and bargain collectively. NLRB v. Jones & Laughlin, 301 U.S. 1, 42-43, 57 S.Ct. 615, 626-27, 81 L.Ed. 893 (1937). And the Act’s primary effect is to require collective bargaining and reduce labor disruptions, rather than to promote or deter acceptance of the Catholic faith.” St. Elizabeth Community Hospital v. NLRB, 708 F.2d 1436, 1441 (9th Cir.1983). . The characteristics of religiously affiliated colleges such as the University stand in strong contrast to those of elementary and secondary schools. The Supreme Court has noted that " *[t]he affirmative if not dominant policy’ of the instruction in pre-college church schools is ‘to assure future adherents to a particular faith by having control of their total education at an early age’ ”. Tilton, 403 U.S. at 686-87, 91 S.Ct. at 2099-2100 (quoting Walz v. Tax Commission, 397 U.S. 664, 671, 90 S.Ct. 1409, 1412, 25 L.Ed.2d 697 (1970)). These “parochial schools involve substantial religious activity and purpose”, Lemon, 403 U.S. at 616, 91 S.Ct. at 2113, and indeed their "raison d'etre ... is the propagation of a religious faith”. Lemon, 403 U.S. at 628, 91 S.Ct. at 2118 (Douglas, J., concurring) . We also find that the ALJ did not commit reversible error when he excluded some evidence regarding the official designation of the University as a "Catholic” institution, subject to the supervision of the Holy See. First, the ALJ did reopen the hearing specifically to hear evidence regarding the relationship between the University and the Catholic hierarchy, and only certain additional documents, offered during the hearing, were excluded. Second, even if all the requested evidence had been admitted, we do not see how it would have changed the ultimate conclusion. The excluded evidence was offered to prove that the University was indeed a "Catholic" institution, subject to the supervision of a religious organization. But the issue of control is simply one factor in the analysis of impermissible entanglement. Indeed, we reach our conclusion on the assumption that some religious organization — be it the Dominican Order or the Catholic Church — does control the University. This case is, therefore, quite different from Burns Electronic Security Services, Inc. v. NLRB, 624 F.2d 403 (2d Cir. 1980), relied on by petitioner. In Burns, the court found that "unusual circumstances” merited the conclusion that the ALJ should have accepted new evidence at the unfair labor practices proceeding. These circumstances included the fact that the requested evidence was disposi-tive of a critical issue in the unit certification question and the record compiled at the original representation hearing was clearly deficient. Burns, 624 F.2d at 408-10. . From 1977 to 1978, the University received various federal grants totaling $5,042,298, of which $350,000 was direct aid to the University. From 1980 to 1983, the University received $3,750,000 in federal grants, seventy-five percent of which was student aid and $425,000 of which was direct institutional assistance. . In cases analyzing the application of Title VII to religious institutions, courts have similarly found that the authority of the Equal Employment Opportunity Commission to engage in a wide-ranging investigation of a college’s hiring practice does not result in "on-going interference with the college’s religious practices.” EEOC v. Mississippi College, 626 F.2d 477, 488 (5th Cir.1980), cert. denied, 453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 994 (1981). The Fifth Circuit came to this conclusion regarding a college whose purpose was to "provide a college education in an atmosphere saturated with Christian ideals," and whose character was found by the court to be "pervasively sectarian.” Id. at 479, 487. . Although we have discussed the nature of the University’s religious character in a separate section, it is useful to note that it is largely due to the fact that the University is not a pervasively sectarian institution that many of the employment issues affecting its faculty will be exclusively or primarily secular. . Examples of potential union demands include: elimination of the faculty regulation subjecting teachers to dismissal for "personal behavior" inconsistent with University standards, such as the procuring or urging the procurement of an abortion; defining the “offenses to Christian morality" for which tenure may be rescinded; demands that faculty members have the "right” to urge, publish, and disseminate views critical of Catholic doctrine; and demands that biology teachers have the “right” to refuse to teach creation theory. 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_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. Lydia ANDERSON, Appellant, v. Bobbie C. PINKETT, Administratrix of the Estate of John R. Pinkett, Jr., Deceased. No. 23977. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 17, 1970. Decided Jan. 20, 1971. Mr. DeLong Harris, Washington, D. C., for appellant. Mr. David Huddle, Washington, D. C., for appellee. Before McGOWAN and TAMM, Circuit Judges, and SMITH, Chief District Judge for the District of Montana. Sitting by designation pursuant to Title 28 U.S.Code, Section 292(c). PER CURIAM: This appeal is from the dismissal of a complaint by the District Court on the grounds of collateral estoppel and, alternatively, res judicata. Appellant by that complaint sought to establish a resulting trust in respect of a sum of money held by appellee as administratrix of her husband’s estate. In an earlier proceeding with the District Court sitting in probate, appellee had filed a petition asking approval of the transfer of the money to appellant as the rightful owner thereof. The petition alleged that the money had come to the estate by reason of the fact that the decedent was the straw owner of certain race horses which in fact belonged to appellant. Objections were filed by creditors of the estate to this transfer, raising a preliminary issue as to the jurisdiction of the probate court to try title to personal property. The District Court disallowed the jurisdictional objection upon the authority of Price v. William, 129 U.S.App.D.C. 239, 393 F.2d 348 (1968); and went on to rule that there was no credible evidence supporting the petition on its merits. In its memorandum opinion withholding approval of the proposed transfer, the court referred to appellant as “left, without prejudice, to whatever other remedy she might have in the circumstances.” Encouraged by this last, appellant brought the present suit. It came before the same judge on appellee’s motion for judgment on the pleadings or, alternatively, for summary judgment. The court ruled that the evidence proffered in support of the complaint “fails to add anything of a significant character which would warrant a change in the findings and that the present action merely parallels the relief sought previously and re-litigates the same issue in the previous proceeding.” Thus, said the court, either collateral estoppel or res judicata stood in appellant’s way. In our view of the matter, however, the District Court sitting in probate was without jurisdiction to decide the merits of the question of whether title to the horses resided in the decedent or in appellant. Price v. Williams, supra, which the probate court pointed to as its authority for reaching the merits, dealt only with the question, arising in somewhat unusual circumstances, of whether conservators were éntitled to the physical possession of a will allegedly executed by their ward. It cannot, without more, be taken as an authoritative abandonment of the long-established doctrine in this jurisdiction that the modes of proceeding of the probate court make it an inappropriate forum for the resolution of conflicts over title to property, and one which is, in any event, not statutorily endowed with such authority. See Jones v. Dunlap, 73 App.D.C. 59, 115 F.2d 689 (1940). The court being without jurisdiction to deal with the merits in the earlier proceeding, its decision on that occasion can hardly bar appellant from bringing the present suit. The judgment appealed from is reversed and the case remanded for further proceedings not inconsistent herewith. It is so ordered. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

sc_casesource

027

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. FAIR ASSESSMENT IN REAL ESTATE ASSOCIATION, INC., et al. v. McNARY et al. No. 80-427. Argued October 5, 1981 Decided December 1, 1981 Rkhnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Powell, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, in which Marshall, Stevens, and O’Connor, JJ., joined, post, p. 117. David J. Newburger argued the cause for petitioners. With him on the briefs were Susan Spiegel, Steve Voss-meyer, and James P. Gamble. Thomas W. Wehrle argued the cause for respondents. With him on the brief for respondents McNary et al. was Andrew J. Minardi. John Ashcroft and Michael L. Boicourt filed a brief for respondents Williams et al. John J. Enright, William J. Costello, Eugene L. Griffin, and Michael F. Baccash filed a brief for the International Association of Assessing Officers as amicus curiae. Justice Rehnquist delivered the opinion of the Court. In this action we are required to reconcile two somewhat intermittent and conflicting lines of authority as to whether a damages action may be brought under 42 U. S. C. § 1988 to redress the allegedly unconstitutional administration of a state tax system. The United States District Court for the Eastern District of Missouri held that such suits were barred by both 28 U. S. C. § 1841 (Tax Injunction Act) and the principle of comity, and the Court of Appeals for the Eighth Circuit affirmed by an equally divided court sitting en banc. We granted certiorari to resolve a conflict among the Courts of Appeals, 450 U. S. 1039, and we now affirm. Before setting forth the facts, we think that a description of the past and at times divergent decisions of this Court may shed light upon the proper disposition of this case. I This Court, even before the enactment of §1983, recognized the important and sensitive nature of state tax systems and the need for federal-court restraint when deciding cases that affect such systems. As Justice Field wrote for the Court shortly before the enactment of § 1983: “It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public.” Dows v. Chicago, 11 Wall. 108, 110 (1871). After this Court conclusively decided that federal courts may enjoin state officers from enforcing an unconstitutional state law, Ex parte Young, 209 U. S. 123 (1908), Congress also recognized that the autonomy and fiscal stability of the States survive best when state tax systems are not subject to scrutiny in federal courts. Thus, in 1937 Congress provided: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U. S. C. § 1341 (hereinafter § 1341 or Act). This legislation, and the decisions of this Court which preceded it, reflect the fundamental principle of comity between federal courts and state governments that is essential to “Our Federalism,” particularly in the area of state taxation. See, e. g., Matthews v. Rodgers, 284 U. S. 521 (1932); Singer Sewing Machine Co. v. Benedict, 229 U. S. 481 (1913); Boise Artesian Water Co. v. Boise City, 213 U. S. 276 (1909). Even after enactment of § 1341 it was upon this comity that we relied in holding that federal courts, in exercising the discretion that attends requests for equitable relief, may not even render declaratory judgments as to the constitutionality of state tax laws. Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293 (1943). Contrasted with this statute and line of cases are our holdings with respect to 42 U. S. C. §1983. In 1871, shortly after Justice Field wrote of the vital and vulnerable nature of state tax systems, Congress enacted § 1983 with its familiar language: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” Obviously § 1983 cut a broad swath. By its terms it gave a federal cause of action to prisoners, taxpayers, or anyone else who was able to prove that his constitutional or federal rights had been denied by any State. In addition, the statute made no mention of any requirement that state remedies be exhausted before resort to the federal courts could be had under 28 U. S. C. § 1343. The combined effect of this newly created federal cause of action and the absence of an express exhaustion requirement was not immediately realized. It was not until our decision in Monroe v. Pape, 365 U. S. 167 (1961), that § 1983 was held to authorize immediate resort to a federal court whenever state actions allegedly infringed constitutional rights: “Although the legislation was enacted because of the conditions that existed in the South at that time, it is cast in general language and is as applicable to Illinois as it is to the States whose names were mentioned over and again in the debates. It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” 365 U. S., at 183. The immediacy of federal relief under § 1983 was reemphasized in McNeese v. Board of Education, 373 U. S. 668 (1963), where the Court stated: “It is immaterial whether [the state official’s] conduct is legal or illegal as a matter of state law. Such claims are entitled to be adjudicated in the federal courts.” Id., at 674 (citation and footnote omitted). And in the unargued per curiam opinion of Wilwording v. Swenson, 404 U. S. 249 (1971), the Court concluded that “[petitioners were . . . entitled to have their actions treated as claims for relief under the Civil Rights Acts, not subject . . . to exhaustion requirements.” Id., at 251. See also Damico v. California, 389 U. S. 416 (1967); Houghton v. Shafer, 392 U. S. 639, 640 (1968); Steffel v. Thompson, 415 U. S. 452, 472-473 (1974). Thus, we have two divergent lines of authority respecting access to federal courts for adjudication of the constitutionality of state laws. Both cannot govern this case. On one hand, § 1341, with its antecedent basis in the comity principle of Matthews v. Rodgers, supra, and Boise Artesian Water Co. v. Boise City, supra, bars at least federal injunctive challenges to state tax laws. Added to this authority is our decision in Great Lakes Dredge & Dock Co. v. Huffman, supra, holding that declaratory judgments are barred on the basis of comity. On the other hand is the doctrine originating in Monroe v. Pape, supra, that comity does not apply where § 1983 is involved, and that a litigant challenging the constitutionality of any state action may proceed directly to federal court. With this divergence of views in mind, we turn now to the facts of this case, a § 1983 challenge to the administration of state tax laws which implicates both lines of authority. We hold that at least as to such actions, which is all we need decide here, the principle of comity controls. I — » HH Petitioner Fair Assessment in Real Estate Association is a nonprofit corporation formed by taxpayers in St. Louis County (County) to promote equitable enforcement of property tax laws in Missouri. Petitioners J. David and Lynn F. Cassilly own real property with recent improvements in the County. Petitioners filed suit under § 1983 alleging that respondents, the County’s Tax Assessors, Supervisors, and Director of Revenue, and three members of the Missouri State Tax Commission, had deprived them of equal protection and due process of law by unequal taxation of real property. The complaint focuses on two specific practices by respondents. First, petitioners allege that County properties with new improvements are assessed at approximately 3354% of their current market value, while properties without new improvements are assessed at approximately 22% of their current market value. This disparity allegedly results from respondents’ failure to reassess old property on a regular basis, the last general reassessment having occurred in 1960. Second, petitioners allege that property owners who successfully appeal their property assessments, as did the Cassillys in 1977, are specifically targeted for reassessment the next year. Petitioners have previously sought some relief from respondents’ assessments in state proceedings. In 1975, petitioner David Cassilly and others brought an action in which the State Circuit Court ordered respondent Antonio to reassess all real property in the County. On direct appeal, however, the Missouri Supreme Court reversed on the ground that the State Tax Commission, not the Circuit Court, should supervise the reassessment process. State ex rel. Cassilly v. Riney, 576 S. W. 2d 325 (1979) (en banc). In 1977, the Cassillys appealed the tax assessed on their home to the County Board of Equalization and received a reduction in assessed value from 3314% to 29%. When their home was again assessed at 3314% in 1978, the Cassillys once more appealed to the Board of Equalization. That appeal was pending at the commencement of this litigation. The Cassillys brought this §1983 action in federal court seeking actual damages in the amount of overassessments from 1975 to 1979, and punitive damages of $75,000 from each respondent. Petitioner Fair Assessment sought actual damages in the amount of expenses incurred in efforts to obtain equitable property assessments for its members. As in all other § 1983 actions, the award of such damages would first require a federal-court declaration that respondents, in administering the state tax, violated petitioners’ constitutional rights. Ill As indicated by our discussion in Part I, § 1341 and our comity cases have thus far barred federal courts from granting injunctive and declaratory relief in state tax cases. Because we decide today that the principle of comity bars federal courts from granting damages relief in such cases, we do not decide whether that Act, standing alone, would require such a result. The correctness of the result in this case is demonstrated by an examination of the pre-Act decisions of this Court, the legislative history of the Act, our post-Act decision in the Great Lakes case, and more recent recognition of the principles of federalism. A Prior to enactment of § 1341, virtually all federal cases challenging state taxation sought equitable relief. Consequently, federal-court restraint in state tax matters was based upon the traditional doctrine that courts of equity will stay their hand when remedies at law are plain, adequate, and complete. See, e. g., Matthews v. Rodgers, 284 U. S. 521 (1932); Singer Sewing Machine Co. v. Benedict, 229 U. S. 481 (1913); Boise Artesian Water Co. v. Boise City, 213 U. S. 276 (1909). Even with this basis in equity law, these cases recognized that the doctrine of equitable restraint was of “notable application,” Boise Artesian Water Co., supra, at 281, and carried “peculiar force,” Matthews, supra, at 525, in suits challenging the constitutionality of state tax laws. Such restraint was particularly appropriate because of the delicate balance between the federal authority and state governments, and the concomitant respect that should be accorded state tax laws in federal court. As the Court in Matthews explained: “The reason for this guiding principle [of equitable restraint] is of peculiar force in cases where the suit, like the present one, is brought to enjoin the collection of a state tax in courts of a different, though paramount sovereignty. The scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts, and a proper reluctance to interfere by injunction with their fiscal operations, require that such relief should be denied in every case where the asserted federal right may be preserved without it.” 284 U. S., at 525. Thus, in 1909 we could state that “[a]n examination of the decisions of this court shows that a proper reluctance to interfere by prevention with the fiscal operations of the state governments has caused it to refrain from so doing in all cases where the Federal rights of the persons could otherwise be preserved unimpaired.” Boise Artesian Water Co., supra, at 282. B This policy of equitable restraint based on notions of comity did not completely clear the federal courts of state tax cases. Indeed, the Senate Report on the bill that was to become § 1341 referred to “[t]he existing practice of the Federal courts in entertaining tax-injunction suits against State officers . . . .” S. Rep. No. 1035, 75th Cong., 1st Sess., 2 (1937). An examination of the cases of that era demonstrates, however, that this practice resulted not from a repudiation of the principle of comity, but from federal-court determinations that available state remedies did not adequately protect the federal rights asserted. See, e. g., Grosjean v. American Press Co., 297 U. S. 233, 242 (1936); Gully v. Interstate Natural Gas Co., 82 F. 2d 145 (CA5), cert. denied, 298 U. S. 688 (1936). See also Note, Federal Court Interference with the Assessment and Collection of State Taxes, 59 Harv. L. Rev. 780, 783, n. 13 (1946); Note, The Tax Injunction Act and Suits for Monetary Relief, 46 U. Chi. L. Rev. 736, 744, and nn. 40, 41 (1979). Congress’ response to this practice of the federal courts— enactment of § 1341 — was motivated in large part by comity concerns. As we said of the Act just last Term: “The statute ‘has its roots in equity practice, in principles of federalism, and in recognition of the imperative need of a State to administer its own fiscal operations.’ Tully v. Griffin, Inc., 429 U. S. [68,] 73 [(1976)]. This last consideration was the principal motivating force behind the Act: this legislation was first and foremost a vehicle to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes. 81 Cong. Rec. 1415 (1937) (remarks of Sen. Bone) . . . .” Rosewell v. LaSalle National Bank, 450 U. S. 503, 522 (1981) (footnote omitted). Neither the legislative history of the Act nor that of its precursor, 28 U. S. C. § 1342, suggests that Congress intended that federal-court deference in state tax matters be limited to the actions enumerated in those sections. See H. R. Rep. No. 1503, 75th Cong., 1st Sess., 1 (1937); 81 Cong. Rec. 1415 (1937) (remarks of Sen. Bone). Thus, the principle of comity which predated the Act was not restricted by its passage. C The post-Act vitality of the comity principle is perhaps best demonstrated by our decision in Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293 (1943). Several Louisiana taxpayers brought an action in Federal District Court seeking a declaratory judgment that the state tax law as applied to them was unconstitutional and void. Although § 1341 was raised as a possible bar to the suit, as it has been raised in this case, “we [found] it unnecessary to inquire whether the words of the statute may be so construed as to prohibit a declaration by federal courts concerning the invalidity of a state tax.” 319 U. S., at 299. Instead, “we [were] of the opinion that those considerations which have led federal courts of equity to refuse to enjoin the collection of state taxes, save in exceptional cases, require[d] a like restraint in the use of the declaratory judgment procedure.” Ibid. Those considerations were, of course, principles of federalism: “ ‘The scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts, and a proper reluctance to interfere by injunction with their fiscal operations, require that such relief should be denied in every case where the asserted federal right may be preserved without it.’ ... Interference with state internal economy and administration is inseparable from assaults in the federal courts on the validity of state taxation, and necessarily attends injunctions, interlocutory or final, restraining collection of state taxes. These are the considerations of moment which have persuaded federal courts of equity to deny relief to the taxpayer . . . .” Id., at 298 (quoting Matthews v. Rodgers, 284 U. S., at 525). The Court’s reliance in Great Lakes upon the necessity of federal-court respect for state taxing schemes demonstrates not only the post-Act vitality of the comity principle, but also its applicability to actions seeking a remedy other than in-junctive relief. The focus was not on the specific form of relief requested, but on the fact that “in every practical sense [it] operate[d] to suspend collection of the state taxes until the litigation [was] ended.” 319 U. S., at 299. As will be seen below, the relief sought in this case would have a similarly disruptive effect. D The principle of comity has been recognized and relied upon by this Court in several recent cases dealing with matters other than state taxes. Its fullest articulation was given in the now familiar language of Younger v. Harris, 401 U. S. 37 (1971), a case in which we held that traditional principles of equitable restraint bar federal courts from enjoining pending state criminal prosecutions except under extraordinary circumstances: “Th[e] underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital consideration, the notion of ‘comity,’ that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in separate ways. . . . [T]he concept [represents] a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. It should never be forgotten that this slogan, ‘Our Federalism,’ born in the early struggling days of our Union of States, occupies a highly important place in our Nation’s history and its future.” Id., at 44-45. The principles of federalism recognized in Younger have not been limited to federal-court interference in state criminal proceedings, but have been extended to some state civil actions. E. g., Huffman v. Pursue, Ltd., 420 U. S. 592 (1975). Although these modern expressions of comity have been limited in their application to federal cases which seek to enjoin state judicial proceedings, a limitation which we do not abandon here, they illustrate the principles that bar petitioners’ suit under § 1983. As we said in Rosewell, swpra, “the reasons supporting federal noninterference [with state taxation] are just as compelling today as they were in 1937.” 450 U. S., at 527. As will be seen in the next part, petitioners’ § 1983 action would be no less disruptive of Missouri’s tax system than would the historic equitable efforts to enjoin the collection of taxes, efforts which were early held barred by considerations of comity. IV In arguments primarily addressed to the applicability of the Act, petitioners contend that damages actions are inherently less disruptive of state tax systems than injunctions or declaratory judgments, and therefore should not be barred by prior decisions of this Court. Petitioners emphasize that their § 1983 claim seeks recovery from individual state officers, not from state coffers, and that the doctrine of qualified immunity will protect such officers’ good-faith actions and will thus avoid chilling their administration of the Missouri tax scheme. We disagree. Petitioners will not recover damages under § 1983 unless a district court first determines that respondents’ administration of the County tax system violated petitioners’ constitutional rights. In effect, the district court must first enter a declaratory judgment like that barred in Great Lakes. We are convinced that such a determination would be fully as intrusive as the equitable actions that are barred by principles of comity. Moreover, the intrusiveness of such §1983 actions would be exacerbated by the nonexhaustion doctrine of Monroe v. Pape, 365 U. S. 167 (1961). Taxpayers such as petitioners would be able to invoke federal judgments without first permitting the State to rectify any alleged impropriety. In addition to the intrusiveness of the judgment, the very maintenance of the suit itself would intrude on the enforcement of the state scheme. As the District Court in this case stated: “To allow such suits would cause disruption of the states’ revenue collection systems equal to that caused by anticipatory relief. State tax collection officials could be summoned into federal court to defend their assessments against claims for refunds as well as prayers for punitive damages, merely on the assertion that the tax collected was willfully and maliciously discriminatory against a certain type of property. Allowance of such claims would result in this Court being a source of appellate review of all state property tax classifications.” 478 F. Supp. 1231, 1233-1234 (1979). This intrusion, although undoubtedly present in every § 1983 claim, is particularly highlighted by the facts of this case. Defendants are not one or two isolated administrators, but virtually every key tax official in St. Louis County. They include the County Executive, the Director of Revenue, the Tax Assessor, and three supervising members of the State Tax Commission. In addition, the actions challenged in the complaint — unequal assessment of new and old property and retaliatory assessment of property belonging to those who successfully appeal to the Board of Equalization — may well be the result of policies or practicalities beyond the control of any individual officer. For example, failure annually to reassess old property may well result from a practical allocation of limited resources. In addition, according to respondents’ attorney at oral argument, Missouri law requires that all property, including property which belongs to those who successfully appeal to the Board of Equalization, be assessed at 3314% of market value. Thus, a judicial determination of official liability for the acts complained of, even though necessarily based upon a finding of bad faith, would have an undeniable chilling effect upon the actions of all County officers governed by the same practicalities or required to implement the same policies. There is little doubt that such officials, faced with the prospect of personal liability to numerous taxpayers, not to mention the assessment of attorney’s fees under 42 U. S. C. §1988, would promptly cease the conduct found to have infringed petitioners’ constitutional rights, whether or not those officials were acting in good faith. In short, petitioners’ action would “in every practical sense operate to suspend collection of the state taxes . . . ,” Great Lakes, 319 U. S., at 299, a form of federal-court interference previously rejected by this Court on principles of federalism. Y This case is therefore controlled by principles articulated even before enactment of § 1983 and followed in later decisions such as Matthews and Great Lakes. The recovery of damages under the Civil Rights Act first requires a “declaration” or determination of the unconstitutionality of a state tax scheme that would halt its operation. And damages actions, no less than actions for an injunction, would hale state officers into federal court every time a taxpayer alleged the requisite elements of a § 1983 claim. We consider such interference to be contrary to “[t]he scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts.” Matthews, 284 U. S., at 525. Therefore, despite the ready access to federal courts provided by Monroe and its progeny, we hold that taxpayers are barred by the principle of comity from asserting § 1983 actions against the validity of state tax systems in federal courts. Such taxpayers must seek protection of their federal rights by state remedies, provided of course that those remedies are plain, adequate, and complete, and may ultimately seek review of the state decisions in this Court. See Huffman v. Pursue, Inc., 420 U. S., at 605; Matthews v. Rodgers, supra, at 526. The adequacy of available Missouri remedies is not at issue in this case. The District Court expressly found “that [petitioners] have means to rectify what they consider an unjust situation through the state’s own processes,” 478 F. Supp., at 1234, and petitioners do not contest this finding. In addition, the Missouri Supreme Court has expressly held that plaintiffs such as petitioners may assert a § 1983 claim in state court. See, e. g., Stafford v. Muster, 582 S. W. 2d 670, 681 (1979); Shapiro v. Columbia Union National Bank & Trust Co., 576 S. W. 2d 310 (1978). Accordingly, the judgment of the Court of Appeals is Affirmed. Fair Assessment in Real Estate Assn., Inc. v. McNary, 478 F. Supp. 1231 (1979), aff’d, 622 F. 2d 415 (1980). Compare Fulton Market Storage Co. v. Cullerton, 582 F. 2d 1071 (CA7 1978), cert. denied, 439 U. S. 1121 (1979), with Fair Assessment in Real Estate Assn., Inc. v. McNary, supra; Ludwin v. City of Cambridge, 592 F. 2d 606 (CA1 1979); and Bland v. McHann, 463 F. 2d 21 (CA5 1972), cert. denied, 410 U. S. 966 (1973). We held in Chapman v. Houston Welfare Rights Organization, 441 U. S. 600 (1979), that 28 U. S. C. § 1343, the jurisdictional counterpart of 42 U. S. C. § 1983, was narrower in scope than the latter. Because there can be no doubt that a claim of denial of due process or equal protection under the Fourteenth Amendment, which these petitioners asserted, would come under the narrower construction of § 1343 adopted by the Court in Chapman, supra, it is unnecessary to pursue here the difference between § 1983 and § 1343. The result we reach today was foreshadowed by our decision last Term in Rosewell v. LaSalle National Bank, 450 U. S. 503 (1981), wherein we stated that “even where the Tax Injunction Act would not bar federal-court interference in state tax administration, principles of federal equity may nevertheless counsel the withholding of relief. See Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293, 301 (1943).” Id., at 525-526, n. 33. We need not decide in this case whether the comity spoken of would also bar a claim under § 1983 which requires no scrutiny whatever of state tax assessment practices, such as a facial attack on tax laws colorably claimed to be discriminatory as to race. Of course, the Court had not yet broadly interpreted the Civil Rights Act to permit federal damages actions for state violations of constitutional rights, brought prior to exhaustion of state remedies. See Monroe v. Pape, 365 U. S. 167 (1961). The closest pre-Act case to a federal damages action was a suit for refund of state taxes allegedly assessed in violation of the Fourteenth Amendment. First National Bank v. Board of County Commissioners, 264 U. S. 450 (1924). Consistent with the federal-court deference for state tax matters of which we speak today, the Court held that the action was barred by the parties’ failure to exhaust their available state remedies. Id., at 456. Although declaratory actions were available before 1937, they were seldom used. See Note, Federal Declaratory Judgments on the Validity of State Taxes, 50 Yale L. J. 927, 929-930, and n. 14 (1941). Justice BRENNAN has cogently explained the reasons behind federal-court deference for state tax administration: “The special reasons justifying the policy of federal noninterference with state tax collection are obvious. The procedures for mass assessment and collection of state taxes and for administration and adjudication of taxpayers’ disputes with tax officials are generally complex and necessarily designed to operate according to established rules. State tax agencies are organized to discharge their responsibilities in accordance with the state procedures. If federal declaratory relief were available to test state tax assessments, state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State’s budget, and perhaps a shift to the State of the risk of taxpayer insolvency. Moreover, federal constitutional issues are likely to turn on questions of state tax law, which, like issues of state regulatory law, are more properly heard in the state courts.” Perez v. Ledesma, 401 U. S. 82, 128, n. 17 (1971) (concurring in part and dissenting in part). 0ther federal courts have reached this same conclusion. For example, in Advertiser Co. v. Wallace, 446 F. Supp. 677, 680 (MD Ala. 1978), the court concluded that “[although perhaps less coercive than anticipatory relief and less intrusive than a refund, the damage award plaintiff seeks, especially its request for punitive damages, still is designed to deter collection of the taxes now being assessed by defendants.” And the court in Evangelical Catholic Communion, Inc. v. Thomas, 373 F. Supp. 1342, 1344 (Vt. 1973), correctly stated: “It is elementary that constitutional rights must be found to have been abridged in order for damages to be recovered in a civil rights action. Thus the plaintiffs in this action cannot recover damages without a determination by this court that the taxation of their Newbury property was effected in violation of their constitutional rights. If we were to make such a determination, we would, in effect, be issuing a declaratory judgment regarding the constitutionality of the tax levied on the plaintiffs. As the court is prohibited from issuing such a declaratory judgment, . . . the court is also precluded as a matter of law from adjudicating the plaintiffs’ damages claims.” We discern no significant difference, for purposes of the principles recognized in this case, between remedies which are “plain, adequate, and complete,” as that phrase has been used in articulating the doctrine of equitable restraint, and those which are “plain, speedy and efficient,” within the meaning of §1341. See, e. g., Tully v. Griffin, Inc., 429 U. S. 68, 73-74 (1976); Hillsborough v. Cromwell, 326 U. S. 620, 622-623 (1946); Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S., at 297-299; Matthews v. Rodgers, 284 U. S., at 525-526. Both phrases refer to the obvious precept that plaintiffs seeking protection of federal rights in federal courts should be remitted to their state remedies if their federal rights will not thereby be lost. Numerous federal decisions have treated the adequacy of state remedies, and it is to that body of law that federal courts should look in seeking to determine the occasions for the comity spoken of today. 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_applfrom

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). NEW YORK ALASKA GOLD DREDGING CO. v. WALBRIDGE. No. 7239. Circuit Court of Appeals, Ninth Circuit. April 8, 1935. Harry E. Pratt, of Fairbanks, Alaska, and Herman Weinberger, of San Francisco, Cal., for appellant. Chas. E. Taylor, of Fairbanks, Alaska, and John L. McGinn, of San Mateo, Cal., for appellee. Before WILBUR and GARRECHT, Circuit Judges, and NORCROSS, District Judge. Rehearing denied May 22, 1935. NORCROSS, District Judge. This action was brought by appellee, Walbridge, against appellant, the New York Alaska Gold Dredging Company, hereinafter referred to as the company, to recover approximately $19,000, representing unpaid salary at the rate of $600 per month for services rendered as superintendent and general manager of the company from March 1, 1923, to January 5, 1928. This is a second appeal in this case. A former ■appeal is reported in (C. C. A.) 38 F.(2d) 199, 202. On that appeal this court held that the trial court erred in directing a verdict in favor of Walbridge, and should have submitted to the jury the question whether the salary of $600 per month, which was fixed by resolution of the board of directors of the company dated March 21, 1922, had been altered by subsequent agreement of the parties providing for a salary of $300 per month and an additional $300 per month in the event the company attained a self-supporting and dividend paying basis. The opinion upon that appeal says: ’. “We think the question as to whether or not the original contract between the parties was modified by the subsequent agreement, express or implied between the parties, should have been left to the jury under proper instructions; that the resolution of March 21, 1922, did not have the effect of in any wise limiting the power of the corporation or its officers to deal with the appellee regarding the terms of his employment and compensation therefor.” We are concerned upon this appeal only with the claim for salary. With respect thereto, the complaint alleges that on March 21, 1922, by resolution of its board of directors, the company employed appellee as its general manager at a salary of $600 per month, to commence April 1, 1922, “and to continue until canceled by action of the board of directors”; that appellee was continuously so employed from April 1, 1922, to January 5, 1928, when his employment terminated; that during said period appellee earned a total of $41,400, of which sum the company paid $21,987.13, leaving a balance unpaid of $19,412.87, for which amount, with interest, judgment was prayed. The answer admits that appellee was employed as general manager of the company at a salary of $600 per month commencing April 1, 1922, and admits that he worked as general manager from April 1, 1922, to March 1, 1923, but denies that he was employed by the company from March, 1923, to March, 1924, and alleges that from March, 1924, to April, 1925, appellee rendered his services to the company gratuitously; and that from May, 1925, to the termination of his employment in January, 1928, he was working for $300 per month and not $600 as claimed. The periods of time in controversy may be summarized more fully as follows: (1) March 1, 1923, to March 1, 1924.' The company claims that appellee was not in its employ during this period. (2) March 1, 1924, to April 30, 1925. The company admits that appellee was in its employ during this time, but claims that he had agreed to work during this period without compensation. (3) May 1, 1925, to January 5, 1928. Appellee’s employment during this period is admitted, but the company claims that he agreed to work during this-time for $300 ''per month and an-additional $300 per. month “if and when defendant company should become self-supporting and upon a dividend paying basis”; which financial condition did not materialize. " ’ After trial before a jury, a verdict was rendered in favor of appellee for $19,412.87, with interest, the full amount of salary claimed, as follows: $7,700 for the period ending March 1, 1924; $8,068.46 from March 1, 1924, to April 30, 1925; $7,731.98 from May 1, 1925, to January 5, 1928; less the amount of $4,087.57, admittedly due the company as an offset against appellee’s claim for salary. The sufficiency of the evidence to support the verdict and judgment is' not questioned. The assignments of error relate principally to alleged prejudicial rulings of the court excluding certain evidence offered by the company and admitting evidence offered by appellee relating to the amount of salary to which appellee was entitled. The instructions to the jury are also challenged, and likewise the refusal to give certain instructions proposed by the defendant. For a proper understanding of the questions presented, a detailed statement of the facts, together with the testimony of certain witnesses, is necessary. Appellee testified that he went to Alaska in March, 1921, to investigate some property for a New York syndicate. He found land on the Tuluksak river which he believed to be good dredging ground and caused it to be staked. He returned to New York in the fall of 1921 and caused the appellant company to be organized for the purpose of mining for gold on the land so staked. He was a director and vice president of the company from the time" of its organization until January, 1926. In November, 1921, the'board of directors of the company adopted a resolution appointing him general manager, at a salary of $5,000 per year, and on March 21, 1922, the board adopted a second resolution increasing his salary as general manager to $600 per month, commencing April 1, 1922, “to continue until canceled by action of the board of directors.” In March, 1922, he went to Alaska, and being unfamiliar with mining, he- took Ralph Hirsh, a mining engineer, with him, together with drills and supplies. He remained in Alaska until March, 1923, and during that time his salary of $600 per month was paid to his wife, on his instructions. When appellee returned to New York in March, 1923, the company was without funds. He induced Milton S. Dillon and Oswald Fowler to purchase 3,300 shares of stock in the company, for $16,600. At that time Dillon was a director of the company, and at a meeting of the board of directors in April, 1923, Dillon was elected secretary and treasurer, which office he held continuously thereafter. Fowler was also elected a director at that meeting. Inasmuch as the money from the sale of the 3,300 shares of stock was insufficient to carry on operations for long, it was agreed' at the meeting of the board of directors in-April, 1923, that Hirsh, the mining engineer, should go to Alaska and appellee should remain in New York to promote the proposition. Appellee testified that he devoted his time and efforts to raising funds, and that he succeeded in raising about $250,-000 through the sale of stock in the company. The raising of finances for a mining venture ordinarily is of paramount importance, and is compensated for. However, according to the testimony of Dillon and Fowler, on behalf of the company, appellee performed no other services for the company during this period (March, 1923, to March, 1924). Dillon also testified that ap-pellee made no demand for salary and none was paid him for that period; but appellee testified that he did make such a demand. The company does not challenge the sufficiency of the evidence to justify the finding of the jury awarding appellee his salary at $600 per month for the period in question from March, 1923, to March, 1924, but does challenge certain instructions given by the court to the jury relating to the existence of an alleged agreement between the parties-that appellee would receive no salary for this period, contending that the instructions as given were erroneous and that certain instructions proposed by the defendant on this issue should have been given. The proposed instructions are not included in the bill of exceptions and therefore we cannot consider the assignments relating to the refusal to give them. “Bills of exception must contain instructions given or refused, otherwise error predicated thereon will not be considered, notwithstanding the assignment of errors sets out such instructions.” 6 Cyc. Fed. Proc., § 2812, p. 267. See, also, Chicago Great Western R. Co. v. Le Valley (C. C. A. 8) 233 F. 384, 387; Beach v. United States (C. C. A. 9) 35 F.(2d) 837. However, the instructions given are correct and embrace substantially, if not fully, the claimed instructions requested. Consideration will now be directed to the period in controversy from March 1, 1924, to April 30, 1925, during which time the company claims appellee agreed to render his services gratuitously. In March, 1924, appellee returned to Alaska and remained there until September of that year. He testified that sufficient development work had been done to justify the installation of a dredge and that, with data showing averages and values, he went to San Francisco and there consulted mining and dredge men. He returned to New York late in 1924, and laid before the board of directors of the company all his information and data, and, as a result, a contract for the construction of a dredge was executed. Appellee also testified that prior to his departure for Alaska in March, 1924, Dillon had promised him that there would be plenty of money to pay his salary, and it would be paid to his wife. According to the testimony of Dillon and Fowler, on behalf of the company, appellee went to Alaska in March, 1924, pursuant to an agreement that he would make the trip without salary and at his own expense. Dillon’s testimony to this effect is as follows: “At the meeting of the board of directors of the defendant company on the 6th of February, 1924, in the company office in New York City, the plaintiff Walbridge stated to the board that he wished to be sent to Alaska, and upon it being pointed out to him that the finances of the company did not permit the payment of salary and expenses, he stated to the board that as his stock interest was the largest, it was imperative for him to go to protect his own interest and that he would go at his own expense without salary, and this was agreed to by the board. “This agreement does not appear upon the minutes of the board meeting. It did not appear to me necessary to load the minutes up with matters which were agreed to by the board and Mr. Walbridge. * * * “During the period from March, 1924, to March, 1925, I paid him $231.54 to pay insurance and $200.00 for family expenses, and also $100.00 to his wife. I made these payments as advances, as the reports from Alaska were good and I knew Walbridge would have to go to Alaska the next year and would have salary coming. “During the period from March, 1924, to March, 1925, Walbridge did not make any demand for the payment of any sum to him from the company.” Fowler also testified that appellee was not on a salary during the year in question, as follows: “At the directors meeting in February of 1924, there being present Milton S. Dillon, Lester B. Walbridge, Mr. Grubb, Mr. Mc-Quoid, Stanley Smith and myself, Lester B. Walbridge asked that he be allowed to go to Alaska in order to protect his interests. We brought out that the company could not afford to pay him a salary or finance him but he said he was willing to go up at his own expense. We concluded that he was to be allowed to go to Alaska at his own expense and he did go to Alaska in the spring of 1924 and returned in the fall of 1924.” Dillon also testified that in the winter of 1924, after appellee’s return from Alaska, they had a conversation in which appellee stated to the witness and to Fowler that “he could no longer give his services gratis to the company” and that if he returned to Alaska he would have to have a salary. Error is assigned to a ruling of the court limiting the cross-examination of appellee on the issue of gratuitous services during the period in question, and to a ruling admitting in evidence a letter from Dillon to appellee’s wife, which letter tends to support appellee’s claim for salary during this period. Those questions will now be considered. Appellee had denied on his direct examination that he had agreed to go to Alaska in 1924 without salary, and repeated the denial on cross-examination. The following question was then asked him: “Isn’t it a fact that at the time of the board meeting, it might have been either before the board was officially called, or during the board meeting, or just before the board meeting, at the office of the company in New York about the 6th of February, 1924, at a time Mr. Fowler was there, Mr. Dillon, Mr. Grubb, at which time it was stated that the company didn’t have money enough to pay you any salary, and you asked to go to Alaska, and they stated they could not pay you any salary, and you stated it was imperative that you should go on account of your stock interest and that you had to go up there to protect your own stock interest, and that you would be willing to go up without salary ?” The question was objected to on the ground that it was not the best evidence, that it was not cross-examination, and that it was seeking to vary the terms of a written instrument (referring, apparently, to the resolution of the board fixing appellee’s salary at $600 per month). Counsel for the company then stated: “He (Walbridge) has testified to his contract being a certain thing, and I am trying to show that it was npt; that his own statements were to a different effect; in fact, that the statements made constituted a different contract with reference to his going to Alaska that year, — a new contract with the company, with the officers of the company. “The Court: You are seeking to show a new contract at this time ? “Yes, your Honor. “The Court: I will sustain the objection as part of your case in chief and not proper cross examination.” The sustaining of the objection was error. In view of other testimony, both for appellant and appellee, it is unnecessary to determine whether or not the refusal to permit the cross-examination of the appellee was prejudicial. On its case in chief the company introduced depositions covering the matter embraced in the question. This is admitted in its brief as follows: “The three persons mentioned in said question as having been present at the meeting were Messrs. Fowler, Dillon and Grubb. Each of them stated in his deposition that the meeting occurred and the discussion was had as stated in the above question, and no objection was made to their testimony.” In corroboration of his testimony that he was not working without compensation during the period in question, and for the purpose of showing an admission on the part of the company that he was on a salary, appellee offered and the court admitted in evidence over the objection óf the company, the • following letter from Dillon to appellee’s wife, dated April 11, 1924: “Your letter of April 6th received. I am sorry to say that at present the company’s balance does not warrant me sending you a check for Lester’s salary. You understand, of course, that this salary is not due and payable unless and until the property in Alaska literally ‘pans out,’ or unless there is sufficient balance. “If at any time the present situation changes, I shall immediately communicate with you.” The objection interposed to the introduction of this letter was as follows-: “The defendant objected to said letter on the ground that it was incompetent, irrelevant and immaterial, not a letter from the corporation at all but from an individual— not a letter addressed to the plaintiff but to plaintiff’s wife and that it was a letter which had never been shown the writer and that its only purpose could be for impeachment.” It is contended that the admission of this letter of April 11, 1924, and the exclusion of another letter offered in evidence by the company (letter of March 21,1925, hereinafter referred to), constitutes reversible error. The specific argument now directed against the admission of the letter of April 11,1924, is stated in the brief as follows: “This letter was not admissible at all because it was not shown to the witness Milton S. Dillon nor to his attorney during his cross examination at the time his déposition was taken in New York. * * * This failure to exhibit the instrument at the time of the deposition deprived Dillon of the opportunity'of explaining it and was in violation of the Alaskan Statute. (Sec. 1502, Compiled Stats, of Alaska.) It is obvious that the purpose of introducing this letter was to impeach Dillon’s testimony that $300 of Walbridge’s salary was contingently withheld by showing that he had committed himself in writing contrary thereto. The admissions of this letter would have no other effect than to impeach Dillon and for that reason was most damaging to the company’s case. - * * * ” This argument misconceives the purpose for which the letter was introduced. At the trial appellee’s counsel stated that he was offering the letter, not as impeachment of Dillon, but as “an' admission that at the time they were not able to pay him the money.” In other words, an admission that the money was in fact owing to appellee from the company ; or, an admission that appellee was in fact working for a salary during this period and was not rendering his services gratuitously, as claimed by the company. The letter, therefore, could not have the impeaching effect. claimed by the company. Moreover, the letter is dated a year prior to the formation of the contingent salary agreement to which Dillon testified and therefore could not have had any effect with reference to that agreement. We turn now to a consideration of the controversy over the amount of salary to which appellee is entitled for the remaining period of his employment, namely, May 1, 1925, to January 5, 1928. The company claims that so far as this period is concerned, the original salary agreement calling for $600 per month was altered by subsequent oral agreement of the parties entered into at a meeting of the board of directors in February, 1925, and that under the modified, or new agreement appellee was to receive, commencing May 1, 1925, $300 per month and an additional $300 per month if and when the company attained a self-supporting and dividend paying basis. On the other hand, appellee claims that the resolution of the board of directors of March 21,1922, fixing his salary at $600 per month, is the sole agreement, oral or written, between,- him. and -.the company-¡-in regard to his employment and salary, except that there was also a later and new agreement to the same effect but changing the manner of payment of the $600 monthly salary. This later agreement it is claimed On the part of appellee is evidenced by a letter from Dillon to appellee, dated April 13, 1925, just prior to appellee’s departure for Alaska. It reads as follows: “New York-Alaska Gold Dredging Co., “New York, N. Y., April 13th, 1925. “Lester B. Walbridge, 180 Argyle Road, Brooklyn, N. Y. “Dear Sir: According to our understanding, beginning May 1, 1925, you are to receive $300. per month, which is to apply against your salary of $600 per month. The balance to accrue to your credit on the books of the company. “New York-Alaska Gold Dredging Co., “By M. S. Dillon, Sect’y & Treas.” Appellee places much reliance on this letter, contending that it constituted a new contract of employment by the terms of which he was thereafter entitled to a salary of $600 per month, $300 in. cash and $300 to accrue to his credit on the'books of the company. The trial court concurred in this interpretation of the letter and instructed the jury accordingly, and also excluded evidence offered by the company that half of appel-lee’s salary, after May 1, 1925, was payable only if and when the company realized profits. The position of the company is reflected by the testimony of Dillon, who testified to a conversation between himself and Fowler and appellee in which, according to his testimony, it was agreed that commencing May 1, 1925, appellee would receive a salary of $300 per month plus a contingent salary of $300 per month if the company became self-supporting and on a dividend basis. Dillon testified that: “It (the conversation) was in February, 1925,1 believe, in my office, and Mr. Fowler was present and" possibly Mr. Clay. Mr. Walbridge brought up the question of salary and he, Oswald Fowler and I being the three largest stockholders of the company, it was determined that he was to have $300.00 a month, which was to be payable to his wife and $300.00 a month was to be held as a contingent salary subject to the company becoming self-supporting and paying dividends.” ~ Dillon then testified that 'on April 13, 1925, appellee presented-to him for his (Dil- ’ Ion’s) signature the letter of that date, above set forth, and, continuing, testified as follows : “I said I would sign this letter provided he would sign another which I would dictate, because I did not consider that his letter showed the exact agreement between the company and himself. I signed the letter. Then immediately after signing it, I called my stenographer and dictated a letter for Walbridge to sign. It was addressed to me as Treasurer of the defendant company. I drew the letter to be dated March 21, 1922, to cover the time from the passage of the resolution authorizing his salary at $7,-200.00 a year. I had forgotten at the time I dictated this letter, however, that Wal-bridge had not been in the employ of the company in 1923 and had rendered his services gratuitously in 1924. Therefore when the letter was presented to me by my stenographer I took a pen in the case of the original and a pencil in the case of the carbon copy — there was a carbon copy of the letter —and changed the date of March 21, 1922, to March 21, 1925. I did not, however, have time to change the form of the letter. I presented the letter to Walbridge and he signed the original thereof. The letter which he signed, I placed in my files where I keep the contracts of the defendant company. The carbon copy of that letter I placed in a different file. I have searched diligently for the original of that letter but cannot find it. I remember last seeing it sometime during the summer of 1927. Mr. Walbridge had access to the file where that original letter was kept during the fall of. 1927. The carbon copy of that letter I here produce.” The carbon copy reads as follows: “With the purpose of clarifying the situation with respect to my salary, I hereby state that my salary was determined by the Board of Directors at a duly held meeting on March 21, 1922, to be the sum of $7,200 per year payable in installments of $600.00 per month. It was, however, understood that I should be entitled to only $3,600 per year payable in installments of $300.00 per month until such time as the company was on a sound financial basis and paying dividends. All of which was agreed to by me.” The copy of the letter was offered in evidence and excluded by the court for the reasons set forth in the following objection interposed by appellee: “It is a letter that was originally dated-March 21, 1922. Of course, it was never signed by Mr. Walbridge. They don t produce the original of it. But it was dated March 21, 1922, and the ‘2’ is stricken out and ‘5’ is added — written over it. What does it seek to clarify? Not the agreement of April 13, 1925, but the resolution of March 21, 1922, which needs no clarification, and they seek by this instrument to vary the terms of the original agreement that was entered into between these parties upon which they acted, and, so, we submit it is not admissible for any purpose, because they claim that the agreement that was entered into on March 21, 1922, was terminated on the first day of March, 1923, which agreement had been fully executed and they had acted on it. He worked for months and received $600 a month, and now by this instrument they undertake to say that according to the terms of the original agreement he was only to receive $300 a month. I submit that the exhibit cannot throw any light upon the contract which was signed, and that it does not tend to explain, change or modify it in any way.” It will be noted that the objection was not on the ground that the letter was an attempt to vary the terms of the new agreement between the parties as evidenced by the letter of April 13, 1925, above quoted, but was on the ground that it was an attempt to vary the terms of the original salary agreement between the parties, evidenced by the resolution of the board of March 21, 1922. The exclusion of this letter is the basis of the principal assignment of error urged by the company, but there are numerous kindred assignments challenging rulings of the court refusing to allow other witnesses (directors and employees of the company) to testify that during 1925 and thereafter appellee had admitted to them he was working for a salary of $300 per month plus an additional contingent salary of $300 per month if and when the company became self-supporting. The- conversations with these witnesses which occurred prior to April 13, 1925, were excluded on objection of appellee that “all' conversations prior to the 13th of April, 1925, were merged in the writing of that date and that parol evidence was not admissible to vary the terms thereof,” and the conversations subsequent to that date were excluded on objection “that it was seeking to vary- the terms of-a- written contract.” The record does not disclose whether the “written contract”, sought to be protected was the resolution of .March 21, 1922, or the letter of April 13, 1925. We will first consider the admissibility of the excluded letter, dated March 21, 1925. Appellee contends that this letter, as well as the testimony of the other witnesses relating to the alleged $300 contingent salary agreement, were properly excluded under the parol evidence rule as an attempt to vary the terms of the 'letter of April 13, 1925, calling for a salary of $600 per month. The terms of this letter appellee contends “are clear and unambiguous” and “its language is positive and certain,” and “it is within the parol evidence rule.” It will be remembered, however, that the objection interposed at the time the letter was offered was that it was kn attempt to vary the terms of the resolution of March 21, 1922, and not the letter of April 13, 1925. The objection as interposed should have been overruled, inasmuch as the parol evidence rule does not apply so as to exclude evidence of subsequent oral agreements changing the terms of a written agreement. The court therefore erred in applying it so as to exclude evidence of a subsequent agreement to that- effect -by the letter which the company attempted to introduce. Grandin v. United States, 22 Wall. 496, 22 L. Ed. 858, 860; 22 C. J., § 1693, p. 1273; 10 R. C. L. 1033; Federal Law of Contracts, §§ 355, 357. We so held, in effect, on the appeal arising out of the first trial, at which trial the letter in question was in evidence. In our previous opinion, after referring to evidence of “an agreement with officers of the corporation which postponed at least half his salary to some future date, or made that half of it wholly contingent upon the success of the corporation,” we said: “We think the question as to whether or not the original contract between the parties was modified by the subsequent agreement, express or implied between the parties, should have been left to the jury. * * * ” We are also of opinion that the letter offered by the company would have been admissible over an objection that it was an attempt to vary the terms of the letter of April 13, 1925. It is undisputed that the letter in question,' dated March 21, 1925, was in fact written, if written at all, on April 13, 1925, the same day and at the same time that the letter oí that date relied upon by appellee was signed by Dillon. Under these circumstances, the excluded letter was admissible under the rule that papers executed at the same time and relating to the same subject-matter should be construed together, and it is permissible to contradict or vary the effect of one of such papers by what is contained in the other, “and where two such papers differ in a certain particular, extrinsic evidence is admissible to show which paper expresses the true agreement of the parties.” 22 C. J., § 1646, p. 1233. We cannot agree with ap-pellee that the letter of April 13, 1925, upon which he relies, is arbitrarily entitled to the sweeping protection of the parol evidence rule. We cannot construe this letter as a complete contract. On the contrary, the opening words thereof — “According to our understanding” — imply, as contended by the company, that it was “merely a memorandum referring to a prior oral contract between the parties.” Accordingly, the rule as stated in 22 C. J., § 1512, p. 1132, is apposite : “The parol evidence rule may protect letters from variation or contradiction where they are of a contractual nature, containing promises, propositions, undertakings, representations, and the like, especially where it is intended that the receiver shall act upon the faith of the contents of the letter; but if the letters show the contract to be incomplete, either in the- proposition made or in its acceptance, parol evidence may be resorted to for the purpose of showing the exact terms of the contract. So, also, where a letter does not purport to be a complete contract, but on its face professes to be merely a recitation and confirmation of an oral agreement, such oral agreement, and not the letter, constitutes the real agreement between the parties, and such contract may be shown by parol.” See, also, Silverthorne v. McFarland (C C. A. 4) 266 F. 60. It is also well settled that when the meaning of a contract is not clear, the situation of the parties and the surrounding circumstances at the time of the making of the contract are to be taken into consideration. Drainage Dist. No. 1 v. Rude (C. C. A. 8) 21 F.(2d) 257, 261; Gill v. Benjamin Franklin Realty & Holding Co. (C. C. A. 3) 43 F.(2d) 337, 338; 22 C. J., § 1570, p. 1173. Under all of the circumstances the court was not justified in treating the letter of April 13, 1925, as conclusive on the question of salary for this period, and in applying to it the protection of the parol evidence rule. For these reasons, we hold that the court also erred in excluding the testimony of the witnesses called to testify to conversations with appellee regarding the alleged $300 contingent salary agreement. This evidence was admitted on the first trial,, and in view of our reversal of the judgment entered upon that trial for failure to submit the issue of a modified salary agreement to the jury, it should not have been excluded upon retrial. The effect of the court’s rulings was to deprive the company of its principal defense to the action and requires a reversal of the case. The remaining assignments of error relate to certain instructions to the jury. It is unnecessary to discuss them because the errors complained of therein resulted from the errors in excluding the evidence to which we have referred. Judgment reversed and cause remanded for new trial. . 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_casedisposition

B

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. NORTH CAROLINA et al. v. PEARCE. No. 413. Argued February 24, 1969. Decided June 23, 1969. Andrew A. Vanore, Jr., argued the cause for petitioners in No. 413. With him on the brief was Thomas Wade Bruton, Attorney General of North Carolina, joined in and adopted by the Attorneys General for their respective States as follows: MacDonald Gal-lion of Alabama, David P. Buckson of Delaware, John B. Breckinridge of Kentucky, Jack P. F. Gremillion of Louisiana, James S. Erwin of Maine, Joe T. Patterson of Mississippi, Forrest H. Anderson of Montana, Clarence A. H. Meyer of Nebraska, Arthur J. Sills of New Jersey, William C. Sennett of Pennsylvania, Herbert F. De-Simone of Rhode Island, Daniel R. McLeod of South Carolina, George F. McCanless of Tennessee, Crawford C. Martin of Texas, Bronson C. LaFollette of Wisconsin, and James E. Barrett of Wyoming; and Paul J. Abbate, Attorney General, for the Territory of Guam. Paul T. Gish, Jr., Assistant Attorney General of Alabama, argued the cause for petitioner in No. 418. With him on the brief was MacDonald Gallion, Attorney General. Larry B. Sitton, by appointment of the Court, 393 U. S. 973, argued the cause and filed a brief for respondent in No. 413. Thomas S. Lawson, Jr., argued the cause for respondent in No. 418. With him on the brief was Oakley Melton, Jr., by appointment of the Court, 393 U. S. 1010. Robert C. Londerholm, Attorney General, and Edward G. Collister, Jr., Assistant Attorney General, filed a brief for the State of Kansas as amicus curiae in No. 413. William W. Van Alstyne and Melvin L. Wulf filed a brief for the American Civil Liberties Union et al. as amici curiae in both cases. Together with No. 418, Simpson, Warden v. Rice, on certiorari to the United States Court of Appeals for the Fifth Circuit. Mr. Justice Stewart delivered the opinion of the Court. When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a harsher sentence after conviction upon retrial? That is the question presented by these two cases. In No. 413 the respondent Pearce was convicted in a North Carolina court upon a charge of assault with intent to commit rape. The trial judge sentenced him to prison for a term of 12 to 15 years. Several years later he initiated a state post-conviction proceeding which culminated in the reversal of his conviction by the Supreme Court of North Carolina, upon the ground that an involuntary confession had unconstitutionally been admitted in evidence against him, 266 N. C. 234, 145 S. E. 2d 918. He was retried, convicted, and sentenced by the trial judge to an eight-year prison term, which, when added to the time Pearce had already spent in prison, the parties agree amounted to a longer total sentence than that originally imposed. The conviction and sentence were affirmed on appeal. 268 N. C. 707, 151 S. E. 2d 571. Pearce then began this habeas corpus proceeding in the United States District Court for the Eastern District of North Carolina. That court held, upon the authority of a then very recent Fourth Circuit decision, Patton v. North Carolina, 381 F. 2d 636, cert. denied, 390 U. S. 905, that the longer sentence imposed upon retrial was “unconstitutional and void.” Upon the failure of the state court to resentence Pearce within 60 days, the federal court ordered his release. This order was affirmed by the United States Court of Appeals for the Fourth Circuit, 397 F. 2d 253, in a brief per curiam judgment citing its Patton decision, and we granted certiorari. 393 U. S. 922. In No. 418 the respondent Rice pleaded guilty in an Alabama trial court to four separate charges of second-degree burglary. He was sentenced to prison terms aggregating 10 years. Two and one-half years later the judgments were set aside in a state coram nobis proceeding, upon the ground that Rice had not been accorded his constitutional right to counsel. See Gideon v. Wainwright, 372 U. S. 335. He was retried upon three of the charges, convicted, and sentenced to prison terms aggregating 25 years. No credit was given for the time he had spent in prison on the original judgments. He then brought this habeas corpus proceeding in the United States District Court for the Middle District of Alabama, alleging that the state trial court had acted unconstitutionally in failing to give him credit for the time he had already served in prison, and in imposing grossly harsher sentences upon retrial. United States District Judge Frank M. Johnson, Jr., agreed with both contentions. While stating that he did “not believe that it is constitutionally impermissible to impose a harsher sentence upon retrial if there is recorded in the court record some legal justification for it,” Judge Johnson found that Rice had been denied due process of law, because “[ujnder the evidence in this case, the conclusion is inescapable that the State of Alabama is punishing petitioner Rice for his having exercised his post-conviction right of review and for having the original sentences declared unconstitutional.” 274 F. Supp. 116, 121, 122. The judgment of the District Court was affirmed by the United States Court of Appeals for the Fifth Circuit, “on the basis of Judge Johnson’s opinion,” 396 F. 2d 499, 500, and we granted certiorari. 393 U. S. 932. The problem before us involves two related but analytically separate issues. One concerns the constitutional limitations upon the imposition of a more severe punishment after conviction for the same offense upon retrial. The other is the more limited question whether, in computing the new sentence, the Constitution requires that credit must be given for that part of the original sentence already served. The second question is not presented in Pearce, for in North Carolina it appears to be the law that a defendant must be given full credit for all time served under the previous sentence. State v. Stafford, 274 N. C. 519, 164 S. E. 2d 371; State v. Paige, 272 N. C. 417, 158 S. E. 2d 522; State v. Weaver, 264 N. C. 681, 142 S. E. 2d 633. In any event, Pearce was given such credit. Alabama law, however, seems to reflect a different view. Aaron v. State, 43 Ala. App. 450, 192 So. 2d 456; Ex parte Merkes, 43 Ala. App. 640, 198 So. 2d 789. And respondent Rice, upon being re-sentenced, was given no credit at all for the two and one-half years he had already spent in prison. We turn first to the more limited aspect of the question before us — whether the Constitution requires that, in computing the sentence imposed after conviction upon retrial, credit must be given for time served under the original sentence. We then consider the broader question of what constitutional limitations there may be upon the imposition of a more severe sentence after reconviction. I. The Court has held today, in Benton v. Maryland, post, p. 784, that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. That guarantee has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. This last protection is what is necessarily implicated in any consideration of the question whether, in the imposition of sentence for the same offense after retrial, the Constitution requires that credit must be given for punishment already endured. The Court stated the controlling constitutional principle almost 100 years ago, in the landmark case of Ex parte Lange, 18 Wall. 163, 168: “If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And . . . there has never been any doubt of [this rule’s] entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory-offence. . . [T]he Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it.” Id., at 173. We think it is clear that this basic constitutional guarantee is violated when punishment already exacted for an offense is not fully “credited” in imposing sentence upon a new conviction for the same offense. The constitutional violation is flagrantly apparent in a case involving the imposition of a maximum sentence after reconviction. Suppose, for example, in a jurisdiction where the maximum allowable sentence for larceny is 10 years’ imprisonment, a man succeeds in getting his larceny conviction set aside after serving three years in prison. If, upon reconvietion, he is given a 10-year sentence, then, quite clearly, he will have received multiple punishments for the same offense. For he will have been compelled to serve separate prison terms of three years and 10 years, although the maximum single punishment for the offense is 10 years’ imprisonment. Though not so dramatically evident, the same principle obviously holds true whenever punishment already endured is not fully subtracted from any new sentence imposed. We hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully “credited” in imposing sentence upon a new conviction for the same offense. If, upon a new trial, the defendant is acquitted, there is no way the years he spent in prison can be returned to him. But if he is reconvicted, those years can and must be returned — by subtracting them from whatever new sentence is imposed. II. To hold that the second sentence must be reduced by the time served under the first is, however, to give but a partial answer to the question before us. We turn, therefore, to consideration of the broader problem of what constitutional limitations there may be upon the general power of a judge to impose upon reconviction a longer prison sentence than the defendant originally received. A. Long-established constitutional doctrine makes clear that, beyond the requirement already discussed, the guarantee against double jeopardy imposes no restrictions upon the length of a sentence imposed upon recon-viction. At least since 1896, when United States v. Ball, 163 U. S. 662, was decided, it has been settled that this constitutional guarantee imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside. “The principle that this provision does not preclude the Government’s retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence.” United States v. Tateo, 377 U. S. 463, 465. And at least since 1919, when Stroud v. United States, 251 U. S. 15, was decided, it has been settled that a corollary of the power to retry a defendant is the power, upon the defendant’s reconviction, to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction. “That a defendant’s conviction is overturned on collateral rather than direct attack is irrelevant for these purposes, see Robinson v. United States, 144 F. 2d 392, 396, 397, aff’d on another ground, 324 U. S. 282.” United States v. Tateo, supra, at 466. Although the rationale for this “well-established part of our constitutional jurisprudence” has been variously verbalized, it rests ultimately upon the premise that the original conviction has, at the defendant’s behest, been wholly nullified and the slate wiped clean. As to whatever punishment has actually been suffered under the first conviction, that premise is, of course, an unmitigated fiction, as we have recognized in Part I of this opinion. But, so far as the conviction itself goes, and that part of the sentence that has not yet been served, it is no more than a simple statement of fact to say that the slate has been wiped clean. The conviction has been set aside, and the unexpired portion of the original sentence will never be served. A new trial may result in an acquittal. But if it does result in a conviction, we cannot say that the constitutional guarantee against double jeopardy of its own weight restricts the imposition of an otherwise lawful single punishment for the offense in question. To hold to the contrary would be to cast doubt upon the whole validity of the basic principle enunciated in United States v. Ball, supra, and upon the unbroken line of decisions that have followed that principle for almost 75 years. We think those decisions are entirely sound, and we decline to depart from the concept they reflect. B. The other argument advanced in support of the proposition that the Constitution absolutely forbids the imposition of a more severe sentence upon retrial is grounded upon the Equal Protection Clause of the Fourteenth Amendment. The theory advanced is that, since convicts who do not seek new trials cannot have their sentences increased, it creates an invidious classification to impose that risk only upon those who succeed in getting their original convictions set aside. The argument, while not lacking in ingenuity, cannot withstand close examination. In the first place, we deal here, not with increases in existing sentences, but with the imposition of wholly new sentences after wholly new trials. Putting that conceptual nicety to one side, however, the problem before us simply cannot be rationally dealt with in terms of “classifications.” A man who is retried after his first conviction has been set aside may be acquitted. If convicted, he may receive a shorter sentence, he may receive the same sentence, or he may receive a longer sentence than the one originally imposed. The result may depend upon a particular combination of infinite variables peculiar to each individual trial. It simply cannot be said that a State has invidiously “classified” those who successfully seek new trials, any more than that the State has invidiously “classified” those prisoners whose convictions are not set aside by denying the members of that group the opportunity to be acquitted. To fit the problem of this case into an equal protection framework is a task too Procrustean to be rationally accomplished. C. We hold, therefore, that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon recon-viction. A trial judge is not constitutionally precluded, in other words, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant’s “life, health, habits, conduct, and mental and moral propensities.” Williams v. New York, 337 U. S. 241, 245. Such information may come to the judge’s attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant’s prison record, or possibly from other sources. The freedom of a sentencing judge to consider the defendant’s conduct subsequent to the first conviction in imposing a new sentence is no more than consonant with the principle, fully approved in Williams v. New York, supra, that a State may adopt the “prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.” Id., at 247. To say that there exists no absolute constitutional bar to the imposition of a more severe sentence upon retrial is not, however, to end the inquiry. There remains for consideration the impact of the Due Process Clause of the Fourteenth Amendment. It can hardly be doubted that it would be a flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside. Where, as in each of the cases before us, the original conviction has been set aside because of a constitutional error, the imposition of such a punishment, “penalizing those who choose to exercise” constitutional rights, “would be patently unconstitutional.” United States v. Jackson, 390 U. S. 570, 581. And the very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to “chill the exercise of basic constitutional rights.” Id., at 582. See also Griffin v. California, 380 U. S. 609; cf. Johnson v. Avery, 393 U. S. 483. But even if the first conviction has been set aside for nonconstitutional error, the imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be no less a violation of due process of law. “A new sentence, with enhanced punishment, based upon such a reason, would be a flagrant violation of the rights of the defendant.” Nichols v. United States, 106 F. 672, 679. A court is “without right to . . . put a price on an appeal. A defendant’s exercise of a right of appeal must be free and unfettered. . . . [I]t is unfair to use the great power given to the court to determine sentence to place a defendant in the dilemma of making an unfree choice.” Worcester v. Commissioner, 370 F. 2d 713, 718. See Short v. United States, 120 U. S. App. D. C. 165, 167, 344 F. 2d 550, 552. “This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. Griffin v. Illinois, 351 U. S. 12; Douglas v. California, 372 U. S. 353; Lane v. Brown, 372 U. S. 477; Draper v. Washington, 372 U. S. 487.” Rinaldi v. Yeager, 384 U. S. 305, 310-311. Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. We dispose of the two cases before us in the light of these conclusions. In No. 418 Judge Johnson noted that “the State of Alabama offers no evidence attempting to justify the increase in Rice’s original sentences . . . .” 274 F. Supp., at 121. He found it “shocking that the State of Alabama has not attempted to explain or justify the increase in Rice’s punishment — in these three cases, over threefold.” Id., at 121-122. And he found that “the conclusion is inescapable that the State of Alabama is punishing petitioner Rice for his having exercised his post-conviction right of review . . . .” Id., at 122. In No. 413 the situation is not so dramatically clear. Nonetheless, the fact remains that neither at the time the increased sentence was imposed upon Pearce, nor at any stage in this habeas corpus proceeding, has the State offered any reason or justification for that sentence beyond the naked power to impose it. We conclude that in each of the cases before us, the judgment should be affirmed. It is so ordered. The approximate expiration date of the original sentence, assuming all allowances of time for good behavior, was November 13,1969. The approximate expiration date of the new sentence, assuming all allowances of time for good behavior, was October 10, 1972. In Patton, the Court of Appeals for the Fourth Circuit had held that “increasing Patton’s punishment after the reversal of his initial conviction constitutes a violation of his Fourteenth Amendment rights in that it exacted an unconstitutional condition to the exercise of his right to a fair trial, arbitrarily denied him the equal protection of the law, and placed him twice in jeopardy of punishment for the same offense.” 381 F. 2d, at 646. He was sentenced to four years in prison upon the first count, and two years upon each of the other three counts, the sentences to be served consecutively. He was sentenced to a prison term of 10 years on the first count, 10 years on the second count, and five years on the fourth count, the sentences to be served consecutively. The third count was dropped upon motion of the prosecution, apparently because the chief witness for the prosecution had left the State. The United States Courts of Appeals have reached conflicting results in dealing with the basic problem here presented. In addition to the Fourth and Fifth Circuit decisions here under review, see Marano v. United States, 374 F. 2d 583 (C. A. 1st Cir.); United States v. Coke, 404 F. 2d 836 (C. A. 2d Cir.); Starner v. Russell, 378 F. 2d 808 (C. A. 3d Cir.); United States v. White, 382 F. 2d 445 (C. A. 7th Cir.); Walsh v. United States, 374 F. 2d 421 (C. A. 9th Cir.); Newman v. Rodriguez, 375 F. 2d 712 (C. A. 10th Cir.). The state courts have also been far from unanimous. Although most of the States seem either not to have considered the problem, or to have imposed only the generally applicable statutory' limits upon sentences after retrial, a few States have prohibited more severe sentences upon retrial than were imposed at the original trial. See People v. Henderson, 60 Cal. 2d 482, 386 P. 2d 677; People v. Ali, 66 Cal. 2d 277, 424 P. 2d 932; State v. Turner, 247 Ore. 301, 429 P. 2d 565; State v. Wolf, 46 N. J. 301, 216 A. 2d 586; State v. Leonard, 39 Wis. 2d 461, 159 N. W. 2d 577. “THE COURT: It is the intention of this Court to give the defendant a sentence of fifteen years in the State Prison; however, it appears to the Court from the records available from the Prison Department that the defendant has served 6 years, 6 months and 17 days flat and gain time combined, and the Court in passing sentence in this case is taking into consideration the time already served by the defendant. IT IS THE JUDGMENT of this Court that the defendant be confined to the State’s Prison for a period of eight years.” A recent opinion of the Supreme Court of Alabama indicates that state law does require credit for time served under the original sentence at least to the extent that the total period of imprisonment would otherwise exceed the absolute statutory maximum that could be imposed for the offense in question. “Without such credit defendant would be serving time beyond the maximum fixed by law for the offense . . . charged in the indictment.” Goolsby v. State, 283 Ala. 269, 215 So. 2d 602. See Note, Twice in Jeopardy, 75 Yale L. J. 262, 265-266 (1965). United States v. Ball, 163 U. S. 662; Green v. United States, 355 U. S. 184. In re Nielsen, 131 U. S. 176. Ex parte Lange, 18 Wall. 163; United States v. Benz, 282 U. S. 304, 307; United States v. Sacco, 367 F. 2d 368; United States v. Adams, 362 F. 2d 210; Kennedy v. United States, 330 F. 2d 26. We have spoken in terms of imprisonment, but the same rule would be equally applicable where a fine had been actually paid upon the first conviction. Any new fine imposed upon reconviction would have to be decreased by the amount previously paid. Such credit must, of course, include the time credited during service of the first prison sentence for good behavior, etc. In most situations, even when time served under the original sentence is fully taken into account, a judge can still sentence a defendant to a longer term in prison than was originally imposed. That is true with respect to both cases before us. In the Pearce case, credit for time previously served was given. See n. 6, supra. In the Rice case credit for the two and one-half years served was not given, but even if it had been, the sentencing judge could have reached the same result that he did reach simply by sentencing Rice to 27% years in prison. That would have been permissible under Alabama law, since Rice was convicted of three counts of second-degree burglary, and on each count a maximum sentence of 10 years’ imprisonment could have been imposed. Ala. Code, Tit. 14, § 86 (1958). See, e. g., Stroud v. United States, 251 U. S. 15; Bryan v. United States, 338 U. S. 552; Forman v. United States, 361 U. S. 416; United States v. Tateo, 377 U. S. 463. In Stroud the defendant was convicted of. first-degree murder and sentenced to life imprisonment. After reversal of this conviction, the defendant was retried, reconvicted of the same offense, and sentenced to death. This Court upheld the conviction against the defendant’s claim that his constitutional right not to be twice put in jeopardy had been violated. See also Murphy v. Massachusetts, 177 U. S. 155; Robinson v. United States, 324 U. S. 282, affirming 144 F. 2d 392. The Court’s decision in Green v. United States, 355 U. S. 184, is of no applicability to the present problem. The Green decision was based upon the double jeopardy provision’s guarantee against retrial for an offense of which the defendant was acquitted. Cf. King v. United States, 69 App. D. C. 10, 12-13, 98 F. 2d 291, 293-294: “The Government’s brief suggests, in the vein of The Mikado, that because the first sentence was void appellant 'has served no sentence but has merely spent time in the penitentiary;’ that since he should not have been imprisoned as he was, he was not imprisoned at all.” “While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants' rights as well as society’s interest.” United States v. Tateo, 377 U. S. 463, 466. See Van Alstyne, In Gideon’s Wake: Harsher Penalties and the “Successful” Criminal Appellant, 74 Yale L. J. 606 (1965); Note, Unconstitutional Conditions, 73 Harv. L. Rev. 1595 (1960). The existence of a retaliatory motivation would, of course, be extremely difficult to prove in any individual case. But data have been collected to show that increased sentences on reconviction are far from rare. See Note, Constitutional Law: Increased Sentence and Denial of Credit on Retrial Sustained Under Traditional Waiver Theory, 1965 Duke L. J. 395. A touching bit of evidence showing the fear of such a vindictive policy was noted by the trial judge in Patton v. North Carolina, 256 F. Supp. 225, who quoted a letter he had recently received from a prisoner: “Dear Sir: “I am in the Mecklenburg County jail. Mr. - chose to re-try me as I knew he would. “Sir the other defendant in this case was set free after serving 15 months of his sentence, I have served 34 months and now I am to be tried again and with all probility I will receive a heavier sentence then before as you know sir my sentence at the first trile was 20 to 30 years. I know it is usuelly the courts prosedure to give a larger sentence when a new trile is granted I guess this is to discourage Petitioners. “Your Honor, I don’t want a new trile I am afraid of more time .... “Your Honor, I know you have tried to help me and God knows I apreeeate this but please sir don’t let the state re-try me if there is any way you can prevent it.” “Very truly yours” Id,., at 231, n. 7. 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_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. CONSUMERS CONST. CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 3269. Circuit Court of Appeals, First Circuit Feb. 15, 1938. Bernhard Knollenberg, of New York City (Charles M. Trammell, of Washington, D. C., and Bradford S. Magill and Francis J. Sweeney, both of New York City, on the brief), for petitioner for review. Ellis N. Slack, Sp. Asst, to Atty. Gen. (James W. Morris, Asst Atty. Gen., and 'Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for the Commissioner. Before BINGHAM, WILSON, and MORTON, Circuit Judges. WILSON, Circuit Judge. - This is a petition for review of a decision and order of the Board of Tax Appeals determining a deficiency in the income tax of the petitioner for the period from August 1, 1927, to December 31, 1927. There was originally before the Commissioner the assessment of the, tax of the petitioner, not only for the period covered in this appeal, but also for the periods from March 30, 1927, to December 31, 1927, and from January'1, 1928, to October 31, 1928, as well as the taxes for the same periods to be assessed on several affiliated corporations and trusts. The petitioner’s appeal from the Board’s decision affirming the findings of the Comr missioner for the period from’August 1, 1927, to December 31, 1927, raises the only questions which are before this court in these proceedings. To state in detail all the interrelations of the several corporations and trusts forming the set-up of the system of which the petitioner was a part would only serve to confuse the issue here involved, which is, whether the net income received by the petitioner from the operating companies during the period from August 1, 1927, to December 31, 1927, was taxable to the petitioner, or whether the petitioner acted merely as the agent of the two companies holding its common stock, or as a conduit through which the receipts from operating companies were passed on to the holding companies and should be taxed to them. So far as this appeal is concerned, it is sufficient to state the following facts: The petitioner was organized as a corporation on March 30, 1927. All of its common stock was issued to holding companies in the proportion of five per cent, to the New England Gas & Electric Association, a Massachusetts trust, which controlled through stock ownership certairi subsidiary corporations furnishing gas and electricity to the public, and 95 per cent, to the Associated Gas & Electric Company, which controlled a larger nhmber of subsidiary companies, of which there were a total of over 163 in the system and which are hereafter referred to as operating companies. In consideration of the issue of its common stock to the New England Gas & Electric Association and to the Associated Gas & Electric Company, it received from these companies certain construction contracts with the operating companies under which the petitioner was to supervise the construction activities of the operating companies, and was to receive for such supervision 7% per cent, of the total cost of any construction work undertaken by the operating companies. During the period covered in this appeal the petitioner had no employees, and employed the J. G. White Management Corporation to do the work of construction, for which the petitioner paid it a stated sum. The petitioner also issued a large amount of preferred stock which was held by the Eastern Utilities Investing Corporation, an investment trust, though for what consideration does not appear. 14,500 shares of the 7 per cent, preferred stock of the Eastern Utilities Investing Corporation was sold and transferred to the New England Gas & Electric Association, and practically all the remainder of the preferred stock of the Eastern Utilities Investing Corporation, except such as was sold to the public, was held by the Associated Gas & Electric Company. After operating under this arrangement, it was found that the subsidiaries of the New England Gas & Electric Association contributed 10 per cent, of the construction fees, and the operating subsidiaries of the Associated Gas & Electric Company contributed 90 per cent, of the construction fees. To readjust the stock holdings of these companies to correspond to the contributions of its subsidiaries to the petitioner under its construction contracts, 10 per cent, of the common stock of the petitioner was transferred to the New England Gas & Electric Association, leaving 90 per cent, in the hands of the Associated Gas & Electric Corporation. Apparently this readjustment of the stock holdings of tfye holding companies took place on or about August 1, 1927, as, prior to that date, the petitioner was clearly affiliated-with the Associated Gas & Electric Company, which held 95 per cent, of its common stock. Before the Commissioner, and in its petition to the Board of Tax Appeals for redetermination of its tax, the petitioner based its claim for a redetermination in part on the ground that it was affiliated with certain other corporations, and in part on the ground that it should be permitted to file a consolidated return under section 240(f) of the Revenue Act of 1926 with certain other taxpayers who were also asking for a redetermination of their taxes for the year 1927. In its petition to this court, however, it claims that during the period in question it was a mere conduit between the operating companies and the holding companies for conducting the income received from the many operating companies under its construction contracts with them to the holding companies, or that it was an agent of the holding companies for the collection and distribution of the moneys it received from the operating companies to its principals. From March 31 to August 1, 1927, the petitioner was clearly affiliated with the Associated Gas & Electric Company, which owned 95 per cent, of its common stock. After August 1, 1927, when the ratio of the petitioner’s common stock owned by the Associated Gas & Electric Company and the New England Gas & Electric Association was changed from 95 per cent, and 5 per cent, to 90 per cent, and 10 per cent., the petitioner was no longer affiliated with any other corporation. Its right to file a consolidated return after August 1, 1927, under section 240(f) of the Revenue Act of 1926, 44 Stat. 46, was also refused by the Commissioner, and the ruling of the Commissioner on this point was accepted by the petitioner before the Board of Tax Appeals. The petitioner could not, we think, claim to be affiliated with another corporation from March 30 to August 1, 1927, and then claim to be a mere agent of the affiliated corporation from August 1 to December 31, 1927. If its status as an affiliated corporation from March 31, 1927, to August 1, 1927, is once conceded, its status as an independent corporation after August 1 continues. It may be significant, too, that the petitioner did not appeal from so much of the Board’s decision as related to its tax for the period from January 1, 1928, to October 31, 1928, inasmuch as for a part of that period the petitioner had employees and apparently conducted the construction work for the subsidiaries, which the J. G. White Management Corporation had previously done. As further evidence of its functioning as an independent corporation and that it was not a mere agent of the holding companies or a conduit for transferring to the holding companies the income received under its construction contracts with the operating companies, it appears that, after paying the stipend of- the J. G. White Management Corporation and its ordinary expenses, it declared first from its receipts from its construction contracts dividends on the preferred stock held by the Eastern, Utilities Investing Corporation, and then from the remainder of its receipts dividends on its common stock held by the holding companies. This is significant, since the New England Gas & Electric Association and the Associated Gas & Electric Company held only a part of the preferred stock of the Eastern Utilities Investing Corporation, while the remainder was held by the public. It is, therefore, clear that not all of the earnings or receipts of the petitioner from its construction con-' tracts found their way into the hands of the holding companies, but a part, at least, came, or might come, into the hands of the investing public through dividends on the preferred stock of the Eastern Utilities Investing Corporation. It is clear, we think, the corporate entity of the petitioner must be kept up in order for' the Eastern Utilities Investing Corporation and its stockholders to receive such .part of the earnings of the petitioner as they were entitled to. The petitioner lays stress on an admission in the answer of the Commissioner that the petitioner “was engaged in the business of serving as a corporation control and convenience.” While the answer .of the Commissioner admits the allegations of the paragraph in which the statement appears, it is far from being a categorical admission that the petitioner was the agent of the holding companies, or served as a conduit for the transfer of construction service funds from the operating companies to the holding companies. It is not clear at all what it was intended to allege by the statement above referred to. To serve as a “corporate control,” the natural inference is that the petitioner’s business was to control something, which it did not do. Such an allegation is too vague and indefinite to bind the Commissioner to any form of doing business, and the other paragraphs denied in the Commissioner’s answer clearly indicate, we think, that he had no intent to admit that the petitioner was acting as agent of the holding companies. It is not necessary to comment on the petitioner’s brief in which it is stated that “corporate control and convenience” was the sole business of the petitioner. Stress is also laid on the stock control of the holding companies over the petitioner, but it does not appear that, during the period involved here, the holding companies controlled, or could have controlled, the declaration of dividends on the preferred stock of the petitioner. They were the first to be recognized in distributing the earnings of the petitioner, and the investing public was entitled to have the Eastern Utilities Investing Company receive its share of the dividends on the preferred stock of the petitioner as against ’ common stock holdings of the holding companies. It is the general rule that a corporate entity must be observed unless unusual conditions exist which require the courts to look behind the form to the substance. ; It cannot be said, we think, that the petitioner did not .serve a business purpose; and, as the Board said in Broadway Strand Theatre Co. v. Commissioner, 12 B.T.A. 1052: “Where a corporate cloak is resorted to for its business benefits, the burdens, if any, must also be assumed.” The cases in which the line is drawn between a corporate entity, which must be observed, and one in which corporate foi;m may be disregarded and the rule pf constructive receipts be applied, may be more or less shadowy. Only in cases .where there are exceptional .circumstances may the separate entity of the corporation be disregarded and the courts look through form to the substance. Burnet v. Commonwealth Improvement Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399; Nixon v. Lucas, 2 Cir., 42 F.2d 833, 834; McDonald et al. v. Commissioner, 4 Cir., 52 F.2d 920, 922. It is not surprising, therefore, that charges of inconsistency, on the part of the Commissioner or the Board in determining upon this finely drawn line arise. No hard and fast rule can be laid down for drawing this line in every case. The determination of the Board in a given case must stand if there is substantial evidence to support its finding. The petitioner cites Southern Pacific Co. v. Lowe, 247 U.S. 330, 38 S.Ct. 540, 62 L.Ed. 1142; Gulf Oil Corporation v. Lewellyn, 248 U.S. 71, 39 S.Ct. 35, 63 L.Ed. 133; Rensselaer & S. R. Co. v. Irwin, 2 Cir., 239 F. 739; West End Street Railway Co. v. Malley, 1 Cir., 246 F. 625; Gold & Stock Telegraph Co. v. Commissioner, 2 Cir., 83 F.2d 465. But these cases and other similar cases cited by the petitioner all provided for the lessee, or a subsidiary company, to pay rentals directly to the stockholders of the lessor or a parent company. This the court held was, in effect, a payment to the lessor or the parent company itself, which was trustee for the benefit of its stockholders, and are in no way controlling as to this petitioner, which maintained separate books of account, carried on business as any independent corporation would. The other cases cited by the petitioner are not in point. In the Gordon Can Company v. Com’r Case, 29 B.T.A. 272, Helvering v. Gordon, 8 Cir., 87 F.2d 663, on which the petitioner relies, Gordon and his wife owned all the stock of the Gordon Can Company. They also owned all the stock of a Realty Company. Gordon arranged to buy tin plate of a corporation engaged in supplying this article and at a price considerably below the regular market price. He arranged with an official of this corporation supplying the tin plate who was a personal and close friend to bill the plate to the Gordon Can Company at the regular market price and to give a rebate agreed upon which was paid to the Realty Company without any obligation, contractual or otherwise, to do so, which company had nothing to -do with making or selling cans. The court very properly held that the Realty Company was a mere conduit in that case to transfer the rebate through it to the stockholders of the Can Company. The petitioner undertakes to draw an analogy between the parties in that case and this, but the part performed by the Realty Company in that case is in no way analogous to that performed by the petitioner in this case. The Realty Company performed no service at all except as a conduit to transfer the funds represented by the rebates to the stockholders of the Can Company. It does not appear to have had any contractual relations with the corporation giving the rebates. On the other hand, the petitioner, which it is claimed corresponds to the Realty Company in that case, performs a very important service directly. connected with the collection of the funds under its construction contracts and their distribution as dividends among the stockholders holding its stock, some part of which finds its way into the hands of the public through preferred dividends by the Eastern Utilities Investing Corporation. In the case of Ford Motor Co. v. United States, Ct.Cl., 9 F.Supp. 590, 599, the government referred to the cases of Southern Pacific Co. v. Lowe, supra, and Gulf Oil Corporation v. Lewellyn, supra, but the court, in holding they did not apply to the facts before it, said: “We have carefully considered the decisions of the Supreme Court cited by the defendant in support of the contention that the separate corporate entities of the corporations involved should be disregarded and the case treated as that of a single taxpayer. The facts in each of the cases relied upon are, we think, clearly distinguished from the facts in the instant case. * ❖ ❖ “The essence of the decisions in the cases referred to is that, where stock ownership has been resorted to, not for the purpose of participating in the affairs of a corporation in the normal and usual manner, but for the purpose of controlling the corporation and dominating its management and affairs so that it may be used as a mere agency, tool, or instrumentality of the owning corporation or corporations, the courts will disregard the fiction of the separate corporate entity and deal with the substance of the transactions in such manner as the justice of the case may require. * * * “In each of the cases cited, the company, whose separate corporate entity was disregarded by the court, was a subsidiary corporation, the entire property and assets of which were owned by one or more other corporations which completely dominated its affairs and exercised control over the management of its business to such an extent that the companies were in substance but one corporation.” This case obviously is not authority in support of the petitioner’s contention in the case at bar. The holding companies in this case did not have in their possession any of the property of the petitioner, nor does the record show that they undertook to dominate its corporate dealings. So far as the record shows, they permitted it to act throughout as an independent corporate entity. The construction contracts with the operating companies transferred to the petitioner in return for the issue of its stock must be held to be capital assets and the earnings under them constituted income. It is not denied that the petitioner was corporate in form; that it kept separate books of account; that it had all the officers common to corporations; that they performed their usual functions in the collection of the construction contract fees, the expending of the moneys, in meeting any obligations they were under, and in the declaration of dividends. The Board found the petitioner was not an example of an agency passing along benefits to its principal, that it was not a mere bookkeeping entity or a corporation without substance, or an agent or conduit for holding companies. We think its findings are supported by some substantial evidence and cannot be disturbed on appeal. The decision and order of the Board of Tax Appeals are affirmed. 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_casetyp1_7-3-4

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - bankruptcy, antitrust, securities". EVARTS v. ELOY GIN CORP. et al. No. 13255. United States Court of Appeals Ninth Circuit. May 29, 1953. Rehearing Denied June 30,1953. Laurens L. Henderson, Phoenix, Ariz., for appellant. Kramer,; Morrison, Roche & Perry, Phoenix,, Ariz., Evans,, Hull, Kitchel & Jenckes; Phoenix, Ariz., for appellees. Before MATHEWS, STEPHENS, and ORR, Circuit judges. STEPHENS,'Circuit Judge. Jack Pretzer, Sr., president of Eloy Gin Corporation, Sunland Gin Corporation, and Pretzer and-.Sons Cotton Corporation, filed original petitions for an/“Arrangement..in Bankruptcy.” ..for the three corporations named, herein'referred to as Debtor Corporations, in March, 1948, under Chapter XI, 11 U.S.C.A. § 701 et seq. W. E. Springer was appointed Receiver of the Debtor Corporations and he, as Receiver, continued the businesses and managed their affairs for the benefit of creditors. Eugene F. Evarts is engaged in the business of liquidating the assets of corporations in financial difficulties and of procuring new funds to aid ailing businesses. He, as plaintiff, filed a petition addressed to the Referee in Bankruptcy in charge of the named corporations in which he alleged that in 1949 the Receiver was under pressure from some of the creditors to sell the assets of the receivership estates and make a distribution ; that the Receiver feared a forced sale at that time would not realize enough to pay all of the creditors in full; that representatives of the Agricultural Credit Company and of the Agricultural Products Company, creditors of Debtor Corporations, asked Evarts to meet with the Receiver for the purpose of devising a plan to liquidate or refinance the receivership, estates; that he met with both the Receiver and Pretzer and. they requested him to use his efforts toward raising sufficient funds to pay all outstanding obligations of the Debtor Corporations, plus a sufficient amount to pay $500,000 to Pretzer and the other stockholders of the Debtor Corporations, and the expenses of the receivership; that in return for his services the Receiver and Pretzer promised that he would be paid adequate compensation. Evarts further alleged in his petition that in furtherance of the above detailed request he contacted J. C. Lander.s, as a prospective purchaser of the Debtor Corporations; that in August 1949 he arranged a meeting between Pretzer and Landers; that Landers agreed to pay all the outstanding obligations of the Debtor Corporations, plus $500,000 cash for the eqtiities of the Debtor Corporations, plus the costs and expenses of the receivership, and that Landers would receive all the stock of the Arizona Farm Products Corporation, (a company which was not involved in the Bankruptcy proceedings) in exchange for the payment of all of that company’s outstanding obligations ; that Landers and the representatives of the Debtor Corporations decided that a tax and other advantages could be realized if the receivership should be discharged and if Landers should purchase the Debtor Corporations’ obligations directly from the creditors and then purchase the stock or assets of the Debtor Corporations from the stockholders. Pretzer agreed to this arrangement and the deal, with some modifications, was successfully closed. On March 15, 1950, the Referee ordered the Receiver to return to the Debtor Corporations “subject to any liens or encumbrances thereon at the commencement of debtor proceedings and which have not heretofore been discharged in debtor proceedings and subject to any liens, encumbrances or obligations, if any, relative thereto created by debtor corporations or J. C. Landers outside of debtor proceedings, all of the assets, property and business of said debtor corporations in his hands or under his control, except [here follow certain exceptions not related to the instant appeal] * * [Emphasis ours.] Petitioner Evarts prayed that the Referee allow a claim in the debtor proceedings for adequate compensation against Pretzer, personally, or the Receiver for services rendered and that the claim be declared an obligation of Landers and a prior lien on the assets of the receivership estates. On June 9, 1950, the Referee, of his own motion, dismissed appellant’s petition as to the Debtor Corporations, Pretzer and Lan-ders, for lack of jurisdiction, but retained jurisdiction as to the Receiver. A hearing as to the liability of the Receiver was had on June 23, 1950. The Referee found that the Receiver did not employ or promise appellant any compensation for services and that no authorization by the court was ever sought or obtained for the employment of appellant. Accordingly, appellant’s claim against the Receiver was denied on the merits. On August 12, 1950, the Referee dismissed the debtor proceedings and discharged the Receiver. Evarts petitioned the United States District Court for the District of Arizona for a review of the June 9 and August 12 orders. The District Court approved and confirmed the orders of the Referee and Evarts appealed to this court. The questions raised by Evarts’ appeals from the June 9 and August 12, 1950, orders, are: 1. Does the Bankruptcy Court have jurisdiction to hear appellant’s claims against the Debtor Corporations, Pretzer, and Lan-ders; or to impose any lien on the receivership estates involved in the Arrangement in Bankruptcy ? 2. Did the Referee err in discharging the Receiver while the above questions were pending ? Appellant invokes the general equity jurisdiction of the Bankruptcy Court and further asserts that since his claim arises from an “obligation created within the bankruptcy proceedings themselves after adjudication of the bankrupts”, the Bankruptcy Court has ample statutory jurisdiction under Sec. 2 of the Bankruptcy Act, Title 11 U.S.C.A. §11. There was no adjudication of bankruptcy. Courts of Bankruptcy are invested with “such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in bankruptcy proceedings”. Title 11 U.S.C.A. § 11. However, the jurisdiction thus granted is not plenary equity jurisdiction. It is bankruptcy jurisdiction, limited to the express statutory authorizations. The equity jurisdiction conferred by the Act merely empowers the judge or referee in bankruptcy to employ the rules and principles of equity jurisprudence in the exercise of his bankruptcy jurisdiction. Smith v. Chase National Bank, 8 Cir., 1936, 84 F.2d 608, 614; Billings Credit Men’s Ass’n v. Bogert, 9 Cir., 1925, 5 F.2d 307, 309; Pepper v. Litton, 1939, 308 U.S. 295, 304, 60 S.Ct. 238, 84 L.Ed. 281; 8 C.J.S., Bankruptcy, § 21. Thus, appellant’s invocation of the equity powers of the Bankruptcy Court is not sufficient to confer jurisdiction on the Bankruptcy Court of the issues raised here, in the absence of some statutory authority. See 8 Collier on Bankruptcy, 14th Ed., § 3.01. The Bankruptcy Court’s jurisdiction generally is divided into three classes: (1) proceedings in bankruptcy; (2) controversies arising in proceedings in bankruptcy ; and (3) • controversies at law and in equity, as distinguished from proceedings under the Bankruptcy Act in suits between receivers and trustees as such and adverse claimants, concerning property acquired or claimed by the receiver or trustees. The second and third classifications are clearly not relevant to the matter here before us because of the specialized meaning of the term “controversy” in bankruptcy parlance. While a controversy may be any dispute in the popular sense of the word, in bankruptcy it involves only “a dispute as to whether particular property is part of the estate, both where a trustee seeks to recover property in possession of a third party and where a third party seeks to recover property in the possession of a trustee.” 8 Collier on Bankruptcy § 3.01; 2 ibid. § 23.06; Harrison v. Chamberlin, 1926, 271 U.S. 191, 193, 46 S.Ct. 467, 70 L.Ed. 897; Coder v. Arts, 1909, 213 U.S. 223, 235, 29 S.Ct. 436, 53 L.Ed. 772. All the property here was in the possession and control of the Receiver and there is no adverse claim to any particular property. We turn our attention to the first classification, “proceedings in bankruptcy”, which concerns “among others, all matters of administration, such as the allowance, rejection and reconsideration of claims, the reduction of the estates to money and its distribution, the determination of the preferences and priorities to be accorded to claims presented for allowance and payment in regular course, and the supervision and control of the trustees and others who are employed . to assist them.” United States Fidelity & Guaranty Co. v. Bray, 1912, 225 U.S. 205, 217, 32 S.Ct. 620, 625, 56 L.Ed. 1055. In such administrative matters the Bankruptcy Court has summary jurisdiction. 8 Collier on Bankruptcy, § 3.01; Taylor v. Voss, 1926, 271 U.S. 176, 181, 46 S.Ct. 461, 70 L.Ed. 889; United States Fidelity & Guaranty Co. v. Bray, supra, 225 U.S. at page 218, 32 S.Ct. at page 625. And that jurisdiction is exclusive of all other courts, both state and federal. Gross v. Irving Trust Co., 1933, 289 U.S. 342, 53 S.Ct. 605, 77 L.Ed. 1243. Appellant has petitioned the Referee in Bankruptcy to allow a claim which he asserts against the Receiver, the Debtor Corporations, Pretzer, Landers and the Trust Estate. By using a petition to the Referee in the bankruptcy proceedings rather than formal pleadings as in a plenary action, and in asserting a claim to share in the distribution of the estates, appellant seeks to invoke the summary jurisdiction of the Bankruptcy Court. See Continental Illinois Nat. Bank v. Chicago R. I. & P. Ry. Co., 1935, 294 U.S. 648, 682, 55 S.Ct. 595, 79 L.Ed. 1110; Taylor v. Voss, supra; 8 Collier on Bankruptcy § 3.01. The Bankruptcy Court recognized its jurisdiction in appellant’s claim against the Receiver. That part of the claim was decided on the merits, adversely to appellant, and no appeal having been taken it is not before us. The Referee dismissed appellant’s petition for lack of jurisdiction over Evarts’ dispute with Debtor Corporations, and with Pretzer and Landers, holding that the Bankruptcy Court was without jurisdiction as to dealings outside the bankruptcy proceedings. Section 311 of the Chandler Act, 11 U.S.C.A. § 711, gives the Bankruptcy Court in which a petition for a Chapter XI Arrangement is filed “exclusive jurisdiction of the debtor and his property”. However, inasmuch as Evarts alleged contracts with only Pretzer and Landers at a time when the Debtor Corporations were under the exclusive control of the Receiver, and inasmuch as the Bankruptcy Court did not ratify or approve the employment of Evarts, he has not stated a cause of action against the corporations in bankruptcy. There was no error in the dismissal as to the Debtor Corporations. The Bankruptcy Court has no jurisdiction in controversies between third parties not involving the debtor or his property, 8 Collier on Bankruptcy, § 3.02, n. 2, p. 124; In re Lubliner & Trinz Theatres, Inc., 7 Cir., 1938, 100 F.2d 646; In re Hotel Martin Co. of Utica, 7 Cir., 1938, 94 F.2d 643. It is clear that Pretzer, as an individual, was a third party to the debtor proceedings; and as to any claim of petitioner’s against him it is purely personal and cannot involve the property while it was held by the Receiver. The Bankruptcy Court’s order of dismissal as to Pretzer was proper. Landers was the principal creditor of the Debtor Corporations at the time of appellant’s petition, having obtained an assignment of most of the claims against the Debtor Corporations outside of the Arrangement proceedings. As a creditor of the Debtor Corporations he was subject to the Bankruptcy Court’s jurisdiction in his dealings with the debtors; hut he was not subject to the Bankruptcy Court’s jurisdiction in his dealings with third parties, in which category Evarts falls. Therefore, the Bankruptcy Court’s jurisdiction over appellant’s claim against Landers was properly declined. We must next consider whether, in the circumstances, it was error to dismiss the proceedings and to discharge the Receiver. Section 376(2) of the Chandler Act, 11 U.S.C.A. § 776(2), permits the withdrawal of original petitions for Arrangement. In such a circumstance the Bankruptcy Court may “upon hearing after notice to the debt- or, the creditors, and such other persons as the court may direct” order the proceeding dismissed if a dismissal “in the opinion of the court may be in the interest of the creditors.” The Receiver petitioned the court to permit him to return the receivership assets to the Debtor Corporations and to withdraw the Arrangement petition. No objection was made to the return of the assets. In fact, the return of the assets was an important part of the agreement between the stockholders of the corporations and Lan-ders. That is, the deal having been accomplished outside of bankruptcy, the services of the Bankruptcy Court were no longer useful or appropriate. The Creditors’ Committee and the Debtors further consented to the dismissal of the debtor proceedings without further notice. Appellant was not notified nor was he given any hearing in connection with the dismissal, the court evidently not considering him an interested party since his alleged contract of employment was not asserted to have been made with the Receiver, but independently of the Bankruptcy Court. From what we have said it necessarily follows that appellant was not a creditor nor in any sense a party to the bankruptcy proceedings. Accordingly, he has no standing to object to the dismissal of the bankruptcy proceedings and the discharge of the Receiver. Affirmed. . § 2, sub. a of the Bankruptcy Act, Title 11 U.S.C.A. § 11, sub. a. . § 2, sub. á (7) of the Bankruptcy Act, Title 11 U.S.C.A. §' 11, sub. a (7). . § 23, sub. a of the Bankruptcy Act, Title 11 U.S.C.A. § 4'6, sub. a. 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:

sc_declarationuncon

A

What follows is an opinion from the Supreme Court of the United States. Your task is to indentify whether the Court declared unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance. Note that the Court need not necessarily specify in many words that a law has been declared unconstitutional. Where federal law pre-empts a state statute or a local ordinance, unconstitutionality does not result unless the Court's opinion so states. Nor are administrative regulations the subject of declarations of unconstitutionality unless the declaration also applies to the law on which it is based. Also excluded are federal or state court-made rules. COMMISSIONER OF INTERNAL REVENUE v. WODEHOUSE. No. 84. Argued December 10, 13, 1948. Decided June 13, 1949. . 'Melva M. Graney argued the cause for petitioner. With her on the brief were Solicitor General Perlman, Assistant Attorney ■ General Caudle, Ellis N. Slack and Lee A. Jackson. Watson Washburn argued the cause and filed a brief for respondent. Mr. Justice Burton delivered the opinion, of the Court. . The question before us is whether certain sums received in 1938 and 1941, by the. respondent, as a nonresident alien author not engaged in trade or business within, the United States and not having an office or place of business therein, were required by the Revenue Acts of the United States to be included in his gross income for federal tax purposes. Each of these sums had been paid to him in advance and respectively for an exclusive serial or book right throughout the United States in relation to a specified original story written by him and ready to be copyrighted. The answer turns upon the meaning of “gross income from sources within the United States” as that term was used, limited and defined in §§ 212 (a), 211 and 119 of the Revenue Act of 1938, and the Internal Revenue Code, as amended in 1940 and 1941. For the reasons hereinafter stated, we hold that these sums eách came within those kinds of gross income from sources within the United States that were referred to in those Acts as “rentals or royalties for the use of or for the privilege of using in the United States . . . copyrights, . . . and other like property,” and that, accordingly, each of these sums was taxable under one or the other of those Acts. The respondent, Pelham G. Wodehouse, at the times material to this case, was a British subject residing in France. He was a nonresident alien of the United States not engaged in trade or business within the United States and not having an office or place of business therein during either the taxable year 1938 or 1941. He was a writer of serials, plays, short stories and other literary works published in the United States in the Saturday Evening Post, Cosmopolitan Magazine and other periodicals. February 22, 1938, the Curtis Publishing Company (here called Curtis) accepted for publication in the Saturday Evening Post the respondent’s unpublished novel “The Silver Cow.” The story had been submitted to Curtis by the respondent’s literary agent, the Reynolds Agency, and, on that date, Curtis paid the agency $40,000 under an agreement reserving to Curtis the American serial rights in the story, including in such rights those in ■the United States, Canada and South America. The memorandum quoted in Appendix B, infra, p. 398, constituted the agreement. Also in 1938, the respondent received $5,000 from Doubleday, Doran & Company for the book rights in this story. The story was published serially in the Saturday Evening Post, July 9 to September 3, 1939. Pursuant to a like agreement, the respondent received $40,000 from Curtis, December 13, 1938, for serial rights in and to his story “Uncle Fred in the Springtime.” It was published serially in the Saturday Evening Post, April 22 to May 27, 1939. July 23, 1941, Hearst’s International Cosmopolitan Magazine, through the respondent’s same agent, paid the respondent $2,000 for “all American and Canadian serial rights (which include all American and Canadian magazine, digest, periodical and newspaper publishing rights)” to the respondent’s article entitled “My Years Behind Barbed Wire.” The agreement appears in Appendix C, infra, p. 400. Apparently this story was published shortly thereafter. August 12, 1941, Curtis, tnrough the same-agent, paid the respondent $40,000 for the “North American (including Canadian) serial rights” to respondent’s novel entitled “Money in the Bank.” The agreement was in the form used by Curtis in 1938. The evidence does not state that this story was published but it shows that Curtis, pursuant to its agreements, took out a United Statés copyright on each of the respective stories named in the foregoing agreements. After each story’s serial publication, Curtis reassigned to the respondent, on the latter’s demand, all rights in and to the story excepting those rights which the respondent expressly had agreed that Curtis was to retain. The respective sums were thus paid to the respondent, in advance and in full, for the serial or book rights which he had made available. Eor United States income tax purposes, the respondent’s literary agent, or some other withholding agent, withheld from the respondent, or from his wife as his assignee, a part of each payment. In 1944 the Commissioner of Internal Revenue, petitioner herein, gave the respondent notice of tax deficiencies assessed against him for the taxable years 1923, 1924, 1938, 1940 and 1941. In these assessments, among other items, the Commissioner claimed deficiencies in the respondent’s income tax payments based upon his above-described 1938 and 1941 receipts. The respondent, in a petition to the Tax Court for a. redetermination of such deficiencies, not only contested the additional taxes assessed against him, which were based upon the full amounts of those receipts, but he asked also for the refund to him of the amounts which had been withheld, for income tax purposes, from each such payment. The Tax Court entered judgment against him for additional taxes for 1938, 1940 and 1941, in the respective amounts of $11,806.71, $8,080.83 and $1,854.85. In speaking of the taxes for 1940 and 1941, the Tax Court said: “The first issue, found also in the year 1938,- presents the question of the taxability of lump sum payments for serial rights to literáry works. Counsel for the petitioner [Wodehouse, the respondent here] .concedes that substantially the same issue was raised and decided in Sax Rohmer, 5 T. ,C. 183; aff'd., 153 Fed. (2d) 61; certiorari denied, 328 U. S. 862. “In Sax Rohmer, supra, we held that the lump sum payments for serial rights were royalties and, as such, were taxable to the recipient. The arguinents advanced in the cases at bar follow the same pattern as those appearing in the Sax Rohmer case, as presented to this Court and. to the Circuit Court of Appeals. The petitioner’s contentions were rejected in both courts and for the same reasons stated ;n the opinions therein, they are rejected here.” 8' T. C. 637, 653. As the respondent’s taxes for 1938 and 1941 had been paid to the Collector of Internal Revenue at Baltimore, Maryland, his petition for review of the Tax Court’s judgment for those years was filed in the United States Court of Appeals for the Fourth Circuit.. The judgment against him was there reversed, 166 F. 2d 986, one judge dissenting on the authority and reasoning of Rohmer v. Commissioner, 153 F. 2d 61 (C. A. 2d Cir.). Because of the resulting conflict between the Circuits and also because comparable issues as to this respondent’s taxes for 1940 were pending before the Court of Appeals for the Second Circuit, we granted certiorari. 335 U. S. 807. ’ ' The petitioner contends that receipts of the type before us long have been recognized as rentals or royalties paid for the use of or for the privilege of using in the United States, patents, copyrights and other like property. Keeping in mind that, before 1936, such receipts were expressly subject to withholding as part of the taxable-income of nonresident alien individuals, he contends that those receipts remained taxable and subject to withholding in 1938 and 1941, after the standards for taxation of such aliens had been made expressly coterminous with the standards for subjecting this part of their income to withholding procedures. In opposition, the respondent argues, first, that each sum he received was a payment made to him in return for his sale of a property interest in a copyright and not a payment to him of a royalty for rights granted by him under the protection of his copyright. Being the proceeds of a sale by him of such a property interest, he concludes that those proceeds were not required to be included in his taxable gross income because the controlling Revenue Acts did not attempt to tax nonresident alien individuals, like himself, upon income from sales of property. Secondly, the respondent argues that, even if his receipts were to be treated as royalties, yet each was received in a single lump sum and not “annually” or “periodically,” and that, therefore, they did not come within his taxable gross income. The petitioner replies that, in this case, we do not properly reach the fine questions of title, or of sales or copyright law, thus raised by the respondent as to the divisibility of a copyright or as to the sale of some interest in a copyright. The petitioner states that the issue here is one of statutory interpretation. It is confined primarily to the taxability of the respondent’s receipts within the broad, rather than narrow, language of certain Revenue Acts. Attention must be focused on those Revenue Acts. If their terms made these receipts taxable because of the general nature of the transactions out of which the receipts arise, namely, payments for the use of or for the privilege of using copyrights, then it is those statutory definitions,- properly read in the light of their context and of their legislative history, that must determine the taxability of the receipts. He argues that the language of the Revenue Acts does not condition the right of the United States to its revenue upon any fine point of property law but covers these receipts in any event. Treating the respondent's receipts simply as representing payments for the use of .or the privilege of using copyrights the petitioner argues that they constituted income that was subject both to withholding and to taxation in 1938 and 1941. He claims finally that the respondent cannot escape taxation of such receipts merely by showing that each payment was received by him -in a lump sum in advance for certain uses of a copyright, instead of in several payments to be made at intermediate dates during the life of the copyright. I. Sums received by a nonresident alien individual for the use of a copyright in the United States constituted gross income taxable to him under the Revenue Act of 1988 and the Internal Revenue Code. Under the income tax laws of the United States, sums received by a nonresident alien author not engaged in trade or business within the United States and not having an office or place of business therein long have been required to be included in his gross income for our federal tax purposes. Such receipts have been an appropriate and readily collectible, subject of taxation. A review of the statutes, regulations, administrative practices and court decisions discloses this policy and, at least from a revenue standpoint, no reason has appeared for changing it. Since the early days of our income tax levies, rentals and royalties paid for the use of or for the privilege of using in the United States, patents, copyrights and other like, property have been taxed to nonresident aliens and for many years at least a part of the tax has been withheld at the source of the income. To exempt this type of income from taxation in 1938 or 1941, in the face of this long record of its taxation, would require a clearness and positiveness of legislative determination to change the established procedure that, is entirely absent here. The policy of this Court in this general field of statutory interpretation was stated in 1934 in a case which dealt with the taxation of a somewhat comparable form of income of a foreign corporation. In Helvering v. Stockholms Enskilda Bank, 293 U. S. 84, the question presented was that of the proper interpretation to be given to § 217 (a) (1) of the Revenue Act of 1926, c. 27, 44 Stat. 9, 30 (analogous to § 119 (a) (1) of the Revenue Act of 1938, 52 Stat. 503, now before us). Certain sums had been received by a foreign corporation from the United States Government in the form of interest upon a refund of an overpayment by that corporation of its income taxes. This Court held that such interest, in turn, constituted taxable gross income derived by the foreign corporation from a source within the United States, because it amounted to interest upon an interest-bearing obligation of a resident of the United States within the meaning of the Act. This interpretation was adopted in opposition to the foreign corporation’s argument that the payment should be exempted because it amounted to interest on one of the “obligations of the United States” and that interest on such an obligation was expressly exempted from taxation by § 213 (b) (4) of the Revenue Act of 1926 (analogous to § 22 (b) (4) of the Revenue Act of 1938). This Court distinguished between the meaning of the word “obligations” in the context of the different sections of the Act and stated the applicable general principles of statutory construction as follows: “The general object of this act is to put money into the federal treasury; and there is manifest in the reach of its many provisions an intention on the part of Congress to bring about a generous attainment of that object by imposing a tax upon pretty much every sort of income subject to the federal power. Plainly, the payment in question constitutes income derived from a source within the United States; and the natural aim of Congress would be to' reach it. In Irwin v. Gavit, 268 U. S. 161, 166, this court, rejecting the contention that certain payments there involved did not constitute income, said: ‘If these payments properly may be called income by the common understanding of that word and the statute has failed to hit them it has missed so much of the general purpose that it expresses at the start. Congress intended to use its power to the full extent. Eisner v. Macomber, 252 U. S. 189, 203.’ Although Congress intended, as the court held in the Viscose case, supra [56 F. 2d 1033 (C. A. 3d Cir.)], to include interest on a. tax refund made to a domestic corporation, we are asked to deny such intention in respect of a competing foreign corporation.' But . we see nothing in the relationship of a foreign corporation to the United States, or in any other circumstance called to our attention, which fairly shows that such a discrimination was within the contemplation of Congress. On the.contrary, the natural conclusion is that if any discrimination had been intended it would have been made in favor of, and not against, the domestic corporation, which contributes in a much more substantial degree to the support of the people and government of the United States.” Id. at pp. 89-90. And further: “In the foregoing discussion, we have not been unmindful of the rule, frequently stated by this court, that taxing acts ‘are not to be extended by implica-, tion beyond the clear import of the language used/ and that doubts are to be resolved against the government and in favor of the taxpayer. The rule is a salutary one, but it does not apply here. The intention of the lawmaker controls in the construction of taxing acts as it does in the construction of other statutes, and that intention is to be ascertained, not by taking the word or clause in question from its setting and viewing it apart, but by considering it in connection with the context, the general purposés of the statute in which it is found,, the occasion and circumstances of its use, and other appropriate tests for the ascertainment of the legislative will. Compare Rein v. Lane, L. R. 2 Q. B. Cases 144, 151. The intention being thus disclosed, it is enough that the word or clause is reasonably susceptible of a meaning consonant therewith, whatever might be its meaning in another and different connection. We are not at liberty to reject the meaning so established and adopt another lying outside the intention of the legislature, simply because the latter would release the taxpayer or bear less heavily against him. To do so would be not to resolve a doubt in his favor, but to say that the statute does not mean what it means.” Id. at pp. 93-94. A. These receipts unquestionably would have been taxed to a nonresident alien individual if received by him under the Revenue Act of 1934.' The background and development of the particular provisions before us emphasize the congressional purpose to tax this type of income. They disclose the full familiarity of Congress with this general type of transaction. Throughout the history of our federal income taxes since the Sixteenth Amendment to our Constitution, the Revenue Acts have expressly subjected to taxation the income received by nonresident alien individuals from' sources within the United States. For example, there is no doubt that the receipts here in question would have been taxable to the respondent if they had been received by him under the Revenue Act of 1934, c. -277, 48 Stat. 680, et seq., and the present issue resolves itself largely into a determination of whether $uch receipts were re-, lieved from taxation by the Revenue Act of 1936, c. 690, 49 Stat. 1648, et seq.,- through certain changes in the income tax laws that were made by that Act and which were still in effect in 1938 and 1941. Under the Revenue Act of 1934, the income of a nonresident alien individual Was taxed at the same rates as was the income of a resident citizen.(§§ 11 and 12) but his taxable gross income was limited wholly to that which he had received “from sources within the United States,” §211 (a). Such sources were described in § 119 of that Act, and the material portions of that Section have remained unchanged ever since. They ^ive their own definition of rentals and royalties. ' These have been quoted from above and they are set forth in full in Appendix A, infra, p. 397. The Act of 1934 thus sought to include as taxable gross income any income which a nonresident alien individual received as royalties for the privilege of using any copyrights in the United States and also sought to tax his income from the sale of any personal property which he had produced (in whole or in part) outside the United States but had sold within the United States. § 119 (a) (4) and (éj (2). As a mechanism of collection, the Act also sought to withhold from nonresident alien individuals, at the source of payment, the entire normal tax of 4% computed upon numerous classifications of their income named in § 143 (b). This language is important in this case. It expressly included certain forms of interest and also "rent, salaries, wages, premiums, annuities, compensations, remuneratipns, emoluments, or other fixed or determinable annual or periodical gains, profits, and income, of any nonresident alien individual, . . . (Emphasis added.) While royalties were not mentioned specifically in this statutory withholding clause, they had been expressly listed in the Regulations, since long before 1934, so that there was no doubt that they were tó be subject to withholding as a matter of interpretation. It was equálly clear that income derived from a sale in the United States, of either real or personal property, was not included, either expressly or by implication or interpretation, in the income subject to a withholding of the tax on it at the' source of the income. The Regulations, since the Act of 1924 (U. S. Treas. Reg. 65, Art. 362 (1924)) to the present time, have contained decisive statements on these points. • Such, Regulations have been substantially identical with the following which appeared in Treasury Regulations 86, Article 143-2 (1934): “Only fixed or determinable annual or periodical income is subject to withholding. The Act specifically includes in such income, interest, rent, salaries, wages, premiums, annuities, compensations, remunerations, and emoluments. But other kinds of income are included, as, for instance, royalties. ". . . The income, derived from the sale in the United States of property, whether real or personal, is not fixed or determinable annual or periodical income.” (Emphasis added.) Apart from these provisions requiring the withholding of taxes at the source of the income, the Revenue Acts have contained other provisions, in similar language, calling for the reporting to the Commissioner of Internal Revenue of material information as to certain income which might be taxable. This language has received an interpretation which is related to and consistent with that here given to the provisions as to withholding taxes. These statutes and Regulations show that, under the Act of 1934, Congress sought to tax (and withhold all or part of the tax on) the income of a nonresident alien individual insofar as it was derived from payments for the use of or for the privilege of using copyrights'in the United States. It also sought to tax (although it could not generally withhold the tax on) any gain which the taxpayer derived from the sale of personal property produced by him without the United States but sold within the United States. Accordingly, if the receipts now before us had been received by the respondent under the Act of 1934, they would have been taxable whether they were treated as payments in the nature of royalties for the use of the copyrights under § 119 (a) or were treated as payments of a sale’s price for certain interests in copyrights under § 119 (e). The Regulations helpfully carried this analysis further. They showed that, while both forms of income were taxable, yet it was only the royalty payments (and not the sales’ proceeds) that were subject to the withholding procedure. A Treasury Decision made in 1933, under the Revenue Acts extending from 1921 to 1928, and a decision of the Court of Appeals for the Second Circuit made in 1938, under the Revenue Act of 1928, c. 852, 45 Stat. 791, sustain the above conclusions. The latter case was that of Sabatini v. Commissioner, 98 F. 2d 753 (C. A. 2d Cir.), later discussed and approved in Rohmer v. Commissioner, 153 F. 2d 61, 63 (C. A. 2d Cir.). Incidentally, these opinions declared not only that the taxes in question were imposed upon the receipts as royalties but that it made no difference whether such royalties were each received in lump sums in full payment in advance, to cover the use of the respective copyrights throughout their statutory lives, or whether the royalties were received from time to time and in lesser sums. B. The Revenue Act of 1936 preserved the taxability of the several kinds of income of nonresident alien individuals which had been the subject of withholding at their respective sources, including receipts in the nature of, royalties for the use of copyrights in the , United States. .The Revenue Act of 1936 did not change materially the statutory definition of gross income from sources within the United States under § 119. It did, however, amend § 211 (a) materially ih its description of the taxable income of nonresident alien individuals. These, amendments (1) substituted a special flat rate of 10% for the general normal tax and surtax rates, (2). required this entire special tax, in the usual case, to be withheld at the source of the taxable income, (3) limited the taxability of the income of each nonresident alien individual to those kinds of income to which the withholding provisions also applied, and (4) (except for the addition of dividends) inserted verbatim, as a new statement of the types of taxable income of -a nonresident alien individual (not engaged in trade or business within the United States' and not having an office or place of business. therein), the language that previously had been used to state the specific types of income to which the withholding procedure was to apply. See its § 143 (b) paralleling its amended § 211 (a). By thus restricting the income tax to those specific types of income to which the withholding procedure had previously applied, Congress automatically relieved nonresident alien individuals from the taxation of their income from certain sales of real Or personal property, previously taxed. This Amendment, on the other hand' retained and in-ereased the tax on the very kind of income that is before us. It also increased the portion of such income to be withheld at its source to meet the new and higher flat rate of tax. The legislative history of the Revenue Act of 1936 confirms the special meaning thus apparent on its face. It emphasizes the policy which expressly marked the enactment of this Act, including particularly these Amendments. The practical situation was that it had beén difficult for United States tax officials to ascertain the taxable income (in the nature of capital gains) which had been derived from sales of property at a profit by nonresident alien individuals, or by foreign corporations, when the respective taxpayers were not engaged in trade or business within the United States and did not have an office or place of business therein. This difficulty was in contrast to the easej of computing and collecting a tax from certain other kinds of income, including payments for -the use of patents and copyrights, from which the United States income taxes were being, wholly or partially, withheld at the source. The Congressional Committee Reports expressed a. purpose of Congress to limit future taxes on nonresident alien individuals to those readily collectible. With a view eyidently to securing substantially as much revenue as before, Congress thereupon applied a new flat rate of 10% to nonresident alien individuals and of 15% to foreign corporations, the entire amount of this flat rate of tax to be withheld and collected at the source of the income. The reports referred also to increases in stock transfer taxes which might result from thus removing the income tax from profits of nonresident alien individuals on their stock sales. ' Congress recognized a value and a convenience in thus turning to the accessible, fixed and determinable income of nonresident aliens. There is no dqubt that these steps sought to increase or at least to maintain the existing volume of revenue. No suggestion appears that Congress intended or wished to relieve from taxation the readily accessible and long-established source of revenue to be found in the payments made to nonresident, aliens for the usé of patents or copyrights in the United States. Much less was any suggestion made that lump sum advance payments of rentals or royalties should be exempted from taxation while at the same time smaller repeated payments of rentals or royalties would be taxed and collected at the source of the income. To have exempted these nonresident aliens from these readily collectible taxes derived from sources within the United States would have discriminated in their favor against résident citizens of the United States who would be required to pay their regular income tax on such income, if treated as royalties within the meaning of our gross income provisions, or at least to pay a tax upon them as capital gains, if treated as income from sales of capital within the meaning of our capital gains provisions. No such purpose to discriminate can be implied. Accordingly, at the time in 1936 when these Amendments were being enacted into § 211 (a), the provisions for taxing the gross income of nonresident alien individuals under the Revenue Act of 1934 already had been long and officially interpreted as covering receipts from royalties as expressly and broadly defined in § 119 (a) and subjected to withholding at the- source of income under § 143 (b). The legislative history of the 1936 Amendments is, therefore, a refutation of any claim that Con-, gress, at that time, was seeking to exempt such taxpayers from those appropriate and readily collectible items. On the other hand, that .history shoyvs that Congress was seeking to continue to tax, and even to increase the tax upon, those kinds of income which had been found to be readily withholdable at their respective sources. Accordingly, whát Congress did was to incorporate the very language of the withholding provisions of § 143 (b) into the languáge of the taxing § 211 (a). The Regulations under § 143 (b), quoted above substantially as being in effect since 1924, had already settled that roy alties were included in § ll$'(b). The Treasury Bulletin also, showed that lump sum payments made in advance for limited rights under copyrights were included in the “royalties” thus subject to withholding and taxation. The type of transactions and the kind of payments were thus identified. The broad language there used is entitled to be interpreted in accordance with its plain mean- and established usage. Therefore," after the 1936 Amendments,.# became equally clear that these receipts in the nature of royalties which were previously withheld at their source were included in the sources of income specified in § 211 (a), but that profits from, sales of property were not included' in the sources of income specified in %-211 (a) any more than they had been under § 11$ (a). The decisions of the Court of Appeals of the Second Circuit in Sabatini v. Commissioner; supra, in 1938, in relation to the Revenue Act of 1928, and in Rohmer v. Commissioner,-supra, in 1946, in relation to the Internal Revenue Code/ as amended in 1940, reflected the same point of view. None of these provisions of the Act of 1936 were changed by the Revenue Act of 1938, the Internal Revenue Code, or the 1940 or 1941 Amendments to that Code, except in relation to the size of the tax rates. The principal changes even in those rates were to provide higher taxes in the higher brackets, rather than to reduce the taxes on nonresident aliens. II. The receipt of the respective amounts by the respondent in single lump sums as payments in full, in advance, for certain rights under the respective copyrights did not exempt those receipts from taxation. Once it has been determined that the receipts of the respondent woüld have been required to be included in his gross income for federal income tax purposes if they had been received in annual payments, or from time to time, during the life of the respective copyrights, it becomes equally clear tha' . the receipt of those same sums by. him in single lump sums as payments in full, in advance, for the same rights to be enjoyed throughout the entire life of the respective copyrights cannot, solely by reason of the consolidation of the payment into one sum, render it tax exempt. No Revenue Act cam be interpreted to reach such a result in the absence of inescapably clear provisions to that effect. There are none such here. The argument for the exemption was suggested by the presence in §§211 (a) and 143 (b) of the words “annual” and “periodical:” If reád apart from their text and legislative history and supplemented by the gratuitous insertion after them of the word “payments,” they might support the limiting effect here argued for them. However, when taken in their context, and particularly in the light of the legislative history of those Acts, and the interpretation placed upon them by the Treasury Department and the lower courts, they have, no such meaning. Those words are merely generally descriptive of the character of the gains, profits and income which arise out of such relationships as those which produce readily with-holdable interest, rents, royalties and salaries, consisting wholly of income, ¿specially in contrast to gains, profits and income in the nature of capital gains from profitable sales of real or personal property. In the instant case, each copyright which was to be obtained had its full, original life of 28 years to run after the advance payment was received by the author covering the use of or the privilege of using, certain rights under it. Fixed and determinable income, from a tax standpoint, may be received either in annual or other payments without altering in the least the need or the reasons for taxing such income or for withholding a part of it at its source. One advance payment to cover the entire 28-year period of a copyright comes within the reason and reach of the Revenue Acts as well as> or even better than, two or more partial payments of the same sum. Article 143-2 of Treasury Regulations 101, issued under the Revenue Act of 1938, provided: “The income need not be paid annually if it is paid periodically; that is to say, from time to time, whether or not at regular intervals. That the length of time during which the payments are to be made may be increased or diminished in accordance with someone’s will or with the happening of an event does not make the payments any the less determinable or periodical.” Substantially this liberal language in the Regulations has been used in this connection since 1918. (U. S. Treas. Reg. 45, Art. 362 (1918).) Single lump sum payments of royalties were held to be taxable under the Revenue Acts of 1921, 1924, 1926 and 1928, I. T. 2735, XII-2 Cum. Bull. 131 (1933); under the Revenue Act of 1928, Sabatini v. Commissioner, supra; and under the Internal Revenue Code, as amended in 1940, Rohmer v. Commissioner, supra. For the foregoing reasons, we hold that the receipts in question were required to be included in the gross income of the respondent for federal income tax purposes. The judgment of the Court of Appeals accordingly is reversed and remanded for further proceedings consistent with this opinion. L D , ¿ _ , , Reversed and remanded. Me. Justice Douglas took no part in the consideration or decision of this case. [For dissenting opinion of Mr. Justice Frankfurter, joined by Mr. Justice Murphy and Mr. Justice Jackson, see post, p. 401.] Appendix A. Material provisions of §§ 212 (a), 211 and 119 of the Revenue Act of 1938 and the Internal Revenue Code: “SEC. 212. GROSS INCOME. “(a) General Rule. — In the case of a nonresident alien individual gross income includes only the gross income from sources within the United States.” (Emphasis added.) 52 Stat. 528, and 53 Stat. 76,26 U. S. C. § 212 (a). “SEC. 211. TAX ON NONRESIDENT ALIEN INDIVIDUALS. “ (a) No United States Business or Office.— “(1) General rule. — There shall be levied, collected, and paid for each taxable year, in lieu of the tax imposed by sections 11 and 12 [normal tax and surtax imposed generally upon individuals and applicable in the instant case, under paragraphs (a) (2) and (c), because the respondent’s gross income for each taxable year exceeded the allowable maximum there specified], upon the amount received, by every nonresident alien individual not engaged in trade or business within the United States and not having, an office or place of business therein, from sources within the United States as interest (except' interest on deposits with persons carrying on the.banking business), dividends, rents, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable annual or periodical gains, profits, and income, a tax of 10 per centum of such amount, .... “(2) Aggregate ■ more than $21,600. — The tax imposed by paragraph (1) shall not apply to any individual if the aggregate amount received during the taxable year from the soúrces therein spécified is more than $21,600. “(c) No United States Business or Office and Gross Income of More Than $21,600. — A nonresident alien individual not engaged in trade or business within the United States and not having an office or place of business therein who has a gross income for any taxable year "of more than $21,600 from the sources specified in subsection (a) (Í), shall be taxable-without regard to the provisions of subsection (a) (1), except that— . “(1) The gross income shall include only income from the sources specified in subsection (a) (1); .“(2) The deductions (other than the so-called ‘charitable deduction’. provided in section 213 (c)) shall be allowed only if and to the extent that they are properly allocable to the gross income from the sources specified in subsection (a) (|) ; “(3) The aggregate of the normal tax and surtax under sections 11 and 12 shall, in no case, be less íhan 1Ó per centum of the gross income from the sources specified in subsection (a) (1); and ...."' (Emphasis added.) 62 Stat. 527-528. The above provisions of §§ 212 and 211 were reenacted in the Internal Revenue Code, 53 Stat. 76, 75-76. The tax rates were changed by the Revenue Act of 1940, c. 419, 54 Stat..516-517 as follows: the surtaxes were increased generally in § 12 (b); the flat rates were increased from 10% to 15% and the allowable maximum income subject to the flat rates was raised from $21,600 to $24,000 in. §211 (a,) and (c), 54 Stat. 518. The Revenue Act of 1941,.c. 412, 55 Stat. 687, 688, again increased the surtaxes in § 12 (b), increased the flat rates from, 15% to 27%% and decreased the allowable maximum income, subject to the flat rates from $24,000 to $23,000 .in §211 (a) and (c), 55 Stat. 694. Since then, the normal tax and surtax rates have been increased still further, the flat rate applicable Jo nonresident alien individuals has been increased from 27%% to, 30% and th*' allowable maximum income to which tlie flat rates ’ -jspply has beeii reduced to*$15,400: 26 U. S. C. § 211 (a)- and (c). “SEC. 119. INCOME FROM. SOURCES WITHIN UNITED STATES. “(a) Gross Income From Sources in United States. — The following items of gross income shall be treated as income from sources within the United States: • • “(1) Interest.— ... “(2) Dividends.— ... “(3) Personal services.— “(4) Rentals and royalties. — Rentals or royalties from property located in the United States or from any interest in such property, including rentals or royalties for the use of or for the privilege of using in the United States, patents, copyrights, secret processes dnd formulas,' good will, trade-marks, trade brands, franchises, and other like property.; and- “(5) Sale of real property. — Gains; profits, and income from the sale of real property locáted in the United States. “(6) Sale of personal property. — For gains, profits, and income from the sale of personal property, see subsection (e). “(b) Net Income From Sources in United States. — From the items of gross income specified in subsection (a) of this section there shall be deducted .the expenses, losses, and other deductions properly apportioned or allocated thereto and a ratable part of any expenses, losses, or other deductions which can not definitely be allocated to some item or class of gross income. The remainder, if any, shall be. included in full as net income from sources within the United States. “(c) Gross Income From Sources Without United States.— The following items of gross income shall be treated as income from sources without the United States: “(1) Interest other, than that derived from sources within the United States as. provided in subsection (a) (1) of this section; “(2) Dividends other than those derived from sources within the United States as provided in subsection' (a) (2) .of this section; “(3) .Compensation for labor or personal services performed without the United States;- “(4) Rentals or royalties from property located without the United States or .from any interest in such property,-including. rentals or royalties for the use of or for the privilege of using without the United States, patents; copyrights; secret-processes and formulas, good will, trade-marksf trade brands, franchises, and other like properties; and . ... . “(5) Gains, profits^ and income from the sale of real property located without the United States. “(d) Net Income From Sources Without United States.— . . . “(e) Income From Sources Partly Within and Partly Without- United States.— . . .- Gains, profits, and income from— “(1) transportation or other services rendered partly within and partly without the United States, or “(2) from the sale of personal property produced (in whole or in part) by the taxpayer within and sold without the United States, or produced {in whole or in part) by the taxpayer without and sold within the United States, shall be treated as derived partly from sources within and partly from sources without the United States. Gains, profits and income derived from the purchase of personal property within and its sale without the United States or from the purchase of personal property without and its sale within the United States, shall be .treated as derived entirely from éources within the country in which sold, .... “(f) Definitions.— . . . .” (Emphasis added.) 52 Stat; 503-506,53 Stat. 53-55,26 U. S. C. § 119. Appendix B.- “THE CURTIS PUBLISHING COMPANY Independence Square Philadelphia February 22, 1938 “Paul R. Reynolds,-' & Son 599 Fifth Avenue . New York City We inclose herewith our check Forty. Thousand Dollars in payment for Serial: The Silver Cow By P. G. Wodehouse $40,000.00 “Important “This check is offered and-accepted with the understanding that The Curtis Publishing Company buys all rights in and of all stories and-.-special articles appearing in its publications and with the further, understanding that every number of these publications in which any" portion thereof shall appear shall be copyrighted at its expense. After publication in a Curtis periodical is completed it agrees to reassign to the author on demand all rights, except American (including Canadian and South American) serial rights. “Motion Picture Rights “Please note that our reservation of serial rights (which includes publication in one installment) includes new story versions based on motion-picture or dramatic scenarios of short stories and serials that have appeared in Curtis publications, and that we permit the use of such versions only under the following conditions: Such synopsis, scenario, or new story version shall not exceed fifteen hundred (1500) words in length when based on a short story appearing complete in one issue, or five thousand (5000) words when based on a serial appearing in two or more issues, or a series of not less than three connected short stories from which a single picture is to be made. Such synopsis shall appear only in circular matter, press books, press notices, trade journals and in magazines devoted exclusively to dramatic or motion-picture matter, and shall in no event appear as having been written by the author. When selling motion-picture or dramatic rights of matter, .you must notify the producer to this effect, so that there may be no misunderstanding on his part and no infringement of our rights “THE CURTIS PUBLISHING COMPANY” Respondent’s’ exhibit containing the foregoing memorandum agreefftent also included the statement rendered and the checks issued by the agent to the respondent and to the respondent’s wife for $17,100 each, including the following: “March 3, 1938 “P. G. Wodehouse in account with Paul R. Reynolds & Son “Received from Saturday Evening Post for All American, Canadian & South American serial rights to The Silver Cow $40,000. Commission 5% 2,000. $38,000. U. S. Income Tax 10% 3,800. $34,200. Ethel Wodehouse share % 17,100. Draft herewith $17,100.” (Emphasis added.) No issue is before us relating to the computation of the amount withheld or the division of the payments between the respondent and his wife. In the statements rendered by the agent as to the payments received for serial rights to “Uncle Fred in the Springtime,” the initial amount withheld was. 10% of the full payment without deduction of the'agent’s commission. Appendix C. “HEARST’S INTERNATIONAL COSMOPOLITAN Hearst Magazine Building Fifty-seventh Street and Eighth Avenue New York City July 23, 1941 Jul 24 1941 “Mr. Paul R. Reynolds, Sr. 599 Fifth Avenue New York City “Dear .Mr. Reynolds: “This will' confirm our purchase of the article entitled My Year Behind Barbed Wire by P. G. Wodehouse for Two Thousand Dollars ($2,000.00). We are buying all American and Canadian serial rights (which include all American and Canadian magazine, digest, periodical and newspaper publishing rights). “It is understood and agreed that the author, and you as his agent, will not use or permit the use of this article or any part or parts thereof (1) in any manner or for any purpose until thirty (30) days after magazine publication and (2) in connection with or as the basis for any motion and/or talking picture(s), radio broadcast (s), television, dramatic production (s) or public performance (s) throughout the world’unless the words 'Based on (or taken from) literary material originally published in Cosmopolitan’ immediately precede or' follow or otherwise accompany the title of any and all such motion and/or talking pictures, radio broadcasts, telecasts, dramatic productions or public performances. “Your signature hereon will constitute an. agreement between us. “Sincerely yours, “FRANCES WHITING Frances Whiting “Accepted: Date:...................... “I am accepting the above letter on the condition that publication of this article can be released in England simultaneously with publication in Cosmopolitan Magazine (despite the wording of (1) in the second paragraph); with the further understanding that Cosmopolitan will permit no digest or newspaper publication of this article without the consent of the author or his agent in writing; and with the further condition that we receive payment not later than September 1, 1941.” (Emphasis added.) The material provisions were identical in the Revenue Act of 1938, enacted May 28, 1938, c. 289, 52 Stat. 447, et seq., and in the Internal Revenue Code, enacted February 10, 1939, 53 Stat. 1, et seq. Amendments to these provisions in 1940 and 1941 changed only the rates of the taxes. For text of the material provisions, see Appendix A, infra, pp. 395, 397, following this opinion. § 119 (a) (4), 52 Stat. 504, 53 Stat. 54, 26 U. S. C. § 119 (a) (4). For full text of the material provisions of § 119, see Appendix A, infra, p. 397. See Appendix B, infra, p. 398. As the court below held that the respondent’s 1938 and 1941 receipts were not subject to taxation, it did not reach the subsidiary issues which had been raised as to the proper amount of those taxes if they were sustained. Similarly, the court below did not pass Upon the claim that certain of the assessments were subject to the three-year statute of limitations rather than the five-year statute here applied. See §275 (a) and (c), 52 Stat. 539, 53 Stat. 86, 26 U. S. C. §275 (a) and (c). This claim turned upon the recognition to be given to certain assignments made by the respondent to his wife. Those assignments, if fully recognized, might have reduced the tax to be assessed against the respondent to an amount less than 25% of the amount originally stated by him in his return and thus rendered the five-year statute inapplicable. However, 'the effect of those assignments was not passed upon by the court below. “Supplement H — Nonresident Alien Individuals “SEC. 211. GROSS INCOME. “ (a) General Rule. — In the case of a nonresident alien individual gross income includes only the gross incomé from sources within the United States.” §211 (a), 48 Stat. 735. “SEC. 143. WITHHOLDING OF TAX AT SOURCE. “(a) Tax-Free Covenant Bonds.— ... “(b) Nonresident. Aliens. — All persons, in whatever capacity acting, including lessees or mortgagors of real or personal property, fiduciaries, employers, and all. officers and employees of the United States, having the control, receipt, custody, disposal," or payment of interest (except interest on deposits with persons carrying on the banking business paid to persons not engaged in business in the United States and not having an office or place of business therein), rent, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable annual or periodical gains, profits, and income, of any nonresident alien individual, or of any partnership, not engaged in trade or business within the United States and not having any office, or place of business therein and composed in whole or in part of nonresident aliens, . . . deduct and withhold from such annual or periodical gains, profits, and income .a tax'equal to 4 per centum thereof: . . . (Emphasis added.) 48 Stat. 723-724. “SEC. 147. INFORMATION AT SOURCE. “(a)- Payments op $1,000 or More. — All persons, in whatever capacity acting, including lessees or mortgagors of real or personal property, fiduciaries, and employers, making payment to another person, of interest, rent, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable gains, profits, and income ... of $1,000 or more in any taxable year, ... shall render a true and accurate return to the Commissioner, under such regulations and in' such form and manner and to such extent as may be prescribed by him with the approval of the Secretary, . . .(Emphasis added.) 48 Stat. 726. Treasury ■ Regulation 86, under the Act of 1934, showed among other things, that.this Section applied generally to fixed or determinable income, that royalties were included as fixed and determinable income and that information as to them was not required when such royalties did not exceed the taxpayer’s exemptions. Also, such information at the source was not required, where the income had been" withheld, at the source, from a nonresident alien individual and a report had been made to that effect. See, for example :• “Art. 147-1. . . . Although to make necessary a return of information the income must be fixed or determinable, it need not be annual or periodical. —v.” “Art. 147-3. Cases where no return of information required.— Payments of the following character, although over $1,000, need not be reported in returns of information . . . :. “{h) Payments of salaries, rents, royalties, interest (except bond interest required to be reported on ownership certificates), and other fixed or deterrmnable income aggregating less than $2,500 made to a married individual; . : . .” “Art. 147-5. Return of information as to payments to other than citizens or residents. — -In the case of payments of fixed or determinable annual or periodical income to nonresident aliens (individual or fiduciary), . . . the returns filed by withholding agents on Form 1042 [required by Art. 143-8] shall constitute and be treated as returns of information. (See sections 143 and 144.)” (Emphasis added.) This opinion was rendered in response to a request to the Treasury for advice as to whether certain payments received during the years 1921 to 1928 by the taxpayer, a nonresident alien author, were taxable as income from sources within the United States. The payments were received pursuant to contracts granting certain volume, serial and motion picture rights in consideration of stipulated royalties payable in various ways. . Sóme contracts prescribed a royalty on each copy sold, others a total stipulated sum, and, in at least one case, this sum was payable in several parts. The opinion reviewed the practice of many , years and gave a positive answer to guide future practice. The answer was that all these receipts were taxable insofar as they came from sources within the United States. The opinion contained the following significant statements which indicate the administrative practice which had been applied and thereafter was to apply to these Sections: “The fact that a payment in the. nature of a. rent or royalty is in a lump sum rather than so much per annum, per unit of property, per performance, per book sold, or a certain percentage of the receipts or profits, does not alter the character of the payment as rent or royalty. (O. D. 1028, C. B. 5, 83; Appeal of J. M. & M. S. Browning Co., 6 B. T. A., 914, acquiescence C. B. VII-1, 5.) Nor is it material whether the royalty is paid in advance. (Appeal of Bloedel’s Jewelry, Inc., 2 B. T. A., 611.) It is accordingly the. opinion of this office that the payments in question are ‘rentals or royalties from . . . [or] for the use of or for the privilege of using . . . copyrights . . . and other like property.’ Since the grant by the taxpayer in each instance is so clearly the grant of a particular right in all the rights constituting the taxpayer’s literary property and copyright, the conclusion is .obvious that the grant is a license and not a sale. “The applicable Revenue Acts regard royalties from American copyrights (or for the use of or for the ■ privilege of using in the United States copyrights and other like property) as income from, sources within the United States, and royalties from foreign copyrights (or for the. use of or for the privilege of using without the. United States copyrights and other like property) as income from sources without the United States. Substantially all the income here in question constitutes royalties from, or for the use of, or for the privilege of using American copyrights.” I. T. 2735,' XII-2 Cum. Bull. 131 (1933). “The fact that' one lump sum was received for.the privilege of using the property of the author instead of a series of payments does not alter the real character of what the taxpayer received. It was payment for the use of Rife literary property for the purpose named and in so far as it was in payment for use in the United States was taxable as a royalty paid in advance and received for the granting of that privilege. While there seems to be no direct authority for this'view of the meaning of the statute, we believe it correct in principle and the order of the Board in this respect is reversed.” Id. at p. 755. This decision effectively supplements the Treasury Bulletin of 1933 and emphasizes the. general language of the statute in taxing proceeds of the type of transaction that is before us. It reversed an intermediate holding made by the Board of Tax Appeals in 1935 in Sabatini v. Commissioner, 32 B. T. A. 705. . That intermediate decision, accordingly, was in the process of review when the Revenue Act of 1936 was enacted and, therefore, it cannot be argued that Congress carried its interpretation into the, Revenue Act of 1936. If anything, the contrary might be argued as to Sabatini v. Commissioner, 98 F. 2d 753 (C. A. 2d Cir.), which was .decided before the enactment of the Internal Revenue Code, “SEC. 211. TAX ON NONRESIDENT ALIEN INDIVIDUALS.- “(a) No United States Business or Office. — There shall be levied, collected, and paid for each’ taxable year, in lieu of the tax imposed by sections 11 and 12, upon the amount received, by every nonresident, alien individual not engaged in trade or business within the United States and not having an office or place of business the'rein, from sources within the United States as interest (except interest on deposits with persons carrying on the banking business), dividends, rents, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable annual or periodical gains, profits, and income, a tax of 10 per centum of such amount, . . . .” (Emphasis' added.) 49 Stat. 1714. “SEC. 143. WITHHOLDING OF TAX AT SOURCE. “(b) Nonresident Aliens — All persons, in whatever capacity acting, including lessees or mortgagors of real or personal property, fiduciaries, employers, and all officers and employees of the United States, having the control, receipt, custody, disposal, or payment of interest (except interest on deposits with persons carrying on the banking business paid to persons not engaged in business in the United States and not having an office or place of business therein), dividends, rent, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable annual or periodical gains, profits, and income (but only to the extent that any of the above items constitutes gross income from sources within the United States), of any nonresident alien individual, or of any partnership not engaged in trade or business within the United States and not having any office or place of business therein and composed in Whole or in'part'.of nonresident aliens, shall . . . deduct and withhold from such annual or periodical gains, profits, and income a tax equal to 10 plfr centum thereof, . . . (Emphasis added.) 49 Stat. 1700-1^01. • “nonresident aliens and foreign corporations “It has also been necessary to recommend substantial changes in our present system of taxing nonresident aliens and foreign corporations. .... In section 211, it is proposed that the tax on a nonresident alien not engaged in a trade or business in- the United States and not having, an office or place of business therein, shall be at the rate of 10 percent on his gross income from interest, dividends, rents, wages, and salaries and other fixed and determinable income. This tax (in the usual case) is collected at the source by withholding as provided for in section 11)8. Such a nonresident viill not be subject to the tax on capital gains, including gains from hedging transactions, as at present, it having been found impossible to effectually collect this latter tax.' It is believed that this exemption from tax will result in ádditional revenue from the transfer taxes and from the income tax in the case of persons carrying on the brokerage business. ... s “. . . In the case of a foreign corporation not engaged in trade or business within the United States and not having an office or place of business therein, it is proposed to levy a flat rate of tax of 15 percent on the gross income of such corporation from interest, dividends, rents, salaries, wages, and other fixed and determinable income - (not including capital gains). This tax is to be collected in the usual case by withholding at the source. ... “It is believed that the proposed revision of our system of taxing nonresident aliens and foreign corporations will be productive of substantial amounts of additional revenue, since it replaces a theoretical system impractical of administration in a great number of cases.” (Emphasis added.) H. R. Rep. No. 2475, 74th Cong., 2d SesS.9-10 (1936). ' To the same effect, see S. Rep. No. 2156, 74th Cong.,-2d Sess. 21,23 (1936). On the floor of the House, Representative Hill of Washington, of the Committee on Ways and Means, supporting these Amendments, said: “We have placed a flat tax of 10 percent on nonresident aliens, that is, people not citizens of the United States and not residing in the United States, and this 10-percent tax is withheld at the source. We expect to get considerably more revenue out of both nonresident aliens and foreign corporations having no'place of ^business or not engaged in trade or business in this country, than we have been getting under the present plan, because we are going .to withhold it at the source, and not take a chance on their making a report of it, or having to send our representatives to some foreign country to find What their net income is, and seek to* induce them to pay their tax.” 80 Cong. Rec. 6005 (1936). ’ On the floor of the Senate, Senator King of Utah, a member of the Finance' Committee and in charge of the bill, said, in supporting these Amendments: “The House bill changes the method of taxing nonresident- aliens and foreign corporations. A nonresident alien not engaged in a trade or business in the United States, of not having an office or place of business therein, is taxed at a flat rate of 10 percent on his income from, interest, dividends, rents, wages, salaries, and other fixed or determinable income, which are collected at the source. . . . These nonresident' aliens are exempted under the House bill from the tax. ■on capital gains, including hedging transactions, it being found admin-' istrativély almost impossible to collect thé capital-gains tax in'such cases. This exemption will result in increased revenue from transfer, taxes or. from- the income tax in the case of persons carrying on the brokerage business.” 80 Cong. Rec. 8650 (1936). Particularly in the Revenue Act of 1938, §211 was amended to provide that, if the aggregate amount of a taxpayer’s income of the types included from sources within the United States was more than $21,600 during a taxable year, then the regular rate of tax imposed by §§ 11 and 12 became applicable, subject, to the proviso that in no case it be less than 10% of the gross income subject to the tax. §211 (a) and (c), 52 Stat. 527-528, and see Appendix A, infra, p. 395. “. . . While payment ordinarily. is at a certain rate for each article or certain per cent of the gross sale, that in itself is not determinative. The purpose for which the payment is made and not the manner thereof is the determining factor.” Commissioner v. Affiliated Enterprises, 123 F. 2d 665, 668 (C. A. 10th Cir.). Question: Did the Court declare unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance? A. No declaration of unconstitutionality B. Act of Congress declared unconstitutional C. State or territorial law, regulation, or constitutional provision unconstitutional D. Municipal or other local ordinance unconstitutional Answer:

songer_r_state

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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. JUBAS v. SAMPSELL. No. 12524. „ , „ . . United States Court of Appeals Ninth Circuit. Nov. 14, 1950. Gendel & Raskoff, Los Angeles, Cal,, for appellant. Craig, Weller & Laughan, Los Angeles, Cal. (Thomas S. Tobin, Los Angeles, Cal., . ... .. °f counsel), for aPPcllee- _ATC _. . , STEPHENS, Circuit Judge, ’ J The court’s Findings of Fact are to the following purport and are unquestioned: A copartnership composed of Gene L J ‘ f FaíTan. and Leo G- 01son was conducting a retail shoe business under the fictitious name of Fashion Bootery. The copartnership was adjudged a bankrupt and plaintiff-appellee thereafter became Trustee jn Bankruptcy. While yet solvent, the COpartnership sold 1240 pairs of shoes « . , , , £ which were of broken sizes and out of , ^ _ stylc: Tbey had “st betwcen $5'25 and $^*25 per pair and defendant-appellant purchased them for their then value of $1.00 per pair. This purchase and sale constituted 25% of the number of pairs of shoes and 15% of the value of the then held stock in trade. Prior to the sale “all available attempts to sell said shoes in the ordinary retail method of separate Pairs of shocs t0 mdivldual ^tomers had bcen ^successful.” The firm “had been tmable t0 obtam any hl^her or bctter offcr for sald shoes tban ?L0° Per Palr’ which was offered by defendant bercm-” The California Bulk Sales Law, § 3440 of the Civil Code of California, provides that a sale in bulk of a substantial part oí a stock in trade “otherwise than in the ordinary course of trade and in the regular and usual practice and method of business of the vendor * * * will be conclusively presumed to> be fraudulent and void as against existing creditors * * * ” unless a seven days’ notice of intention is recorded with the county re-J corder. No such notice was recorded. Fagan and Olson were declared bankrupt and the Referee brought timely suit to recover on behalf of the bankrupt estate. The district court held that the goods sold constituted a substantial ■ part of the stock m trade and that it was conclusively fraudulent, and gave judgment for the value of the 1240 pairs of shoes at $1.00 per pair. Defendant appeals. The sole question here is whether in the circumstances the court erred by holding that the sale was conclusively fraudulent because § 3440 of the Civil Code of California was not complied with. Appellant claims that the sale was in „ , : j ™ it. j í regular and usual practice and method of , . r ,, , busmess of the vendor and that the merchandise which was the subject of the sale , , . , , was not a substantial part of the vendor s stock in trade. We are of the opinion that these claims cannot be sustained. The “regular and usual practice and method of business of the vendor” cannot be measured by a prevalent custom of merchants which the vendor followed. The vendors herein were retail shoe merchants whose regular and usual practice and method of business . e , , . was selling shoes to those who came into & , the store to buy from the stock m trade J for wear. The plain meaning of the statute is that when a storekeeper disposes of a substantial part of his stock in trade in bulk, and selling in bulk sales is not the usual and ordinary way in which he conducts his business from day to day, the sale falls within the statute. The Findings of Fact to the effect , v. . . .. . , , that the shoes m suit were m the stock in trade and constituted 25% in quantity and 15% in value of the whole stock supports the conclusion that the part sold was a substantial part of the whole. See Schainman v. Dean, 9 Cir., 1928, 24 F.2d 475 and Markwell & Co. v. Lynch, 9 Cir., 1940, 114 F.2d 373, 375. Affirmed, Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number. Answer:

songer_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 Bobby Joe CRAIG, Appellant, v. SUN OIL COMPANY OF PENNSYLVANIA, and William R. Claiborne, Appellees. No. 74-1310. United States Court of Appeals, Tenth Circuit. Argued Jan. 20, 1975. Decided April 28, 1975. Ray Painter, Jr., Tulsa, Okl. (Jack R. Givens, and Jones, Givens, Brett, Gotcher, Doyle & Atkins Inc., Tulsa, Okl., with him on the brief), for appellant. Jon A. Baughman, Philadelphia, Pa. (John J. Runzer, Philadelphia, Pa., Robert M. Dubbs, St. Davids, Pa., and John A. Ladner, Tulsa, Okl., with him on the brief), for appellee, Sun Oil Co. of Pennsylvania. Booth & Jay, and Frank R. Hickman, Tulsa, Okl., on the brief for appellee, William R. Claiborne. Before SETH, HOLLOWAY and BARRETT, Circuit Judges. SETH, Circuit Judge. This is a private action under the Sherman Act seeking treble damages against Sun Oil Company of Pennsylvania and William R. Claiborne. The trial court granted motions of the defendants for summary judgment at the conclusion of discovery and after the filing of affidavits by plaintiff in response to the motions. The defendant Claiborne held a distributorship franchise from Sun, and sold tires, batteries, and accessories pursuant thereto from a filling station in Tulsa. The tire sales by Claiborne were at retail to his station customers and at wholesale to other Sun stations and fleet owners. He sold this station to the plaintiff in May 1969, and plaintiff was given a franchise by Sun. Claiborne then began business under a Sun franchise from another location. This suit centers on this sale and subsequent relationships between Sun, plaintiff, and Claiborne. As mentioned, defendant Claiborne, after his sale to plaintiff, began a wholesale tire distributorship from a warehouse in Tulsa. This enterprise was financed for the most part by Sun. It was operated under the same type of contract with Sun as plaintiff had and Claiborne had before. There were in Tulsa and vicinity at least one or two other similar distributorships at all pertinent times. The sale of the Claiborne station to plaintiff involved Sun in that it approved the new franchise to plaintiff for tires, batteries, and accessories, and it also financed for plaintiff equipment and machinery at the station. Part of the sale price was applied on debts which Claiborne owed to Sun, and the part for good will concerned only plaintiff and Claiborne. By February 1970 plaintiff’s business had failed, he was in default on notes to Sun, and Sun began suit, and took possession of the equipment. The essence of plaintiff’s complaint is that Claiborne and Sun conspired to set him up as an additional distributorship for the purpose of making it practical for Sun to finance Claiborne in the new outlet, and that once that purpose was achieved Claiborne and Sun continued to conspire to destroy his business by means of price, credit, and service discrimina-tions in favor of Claiborne. With respect to conspiracy to restrain trade under 15 U.S.C. § 1, the trial court concluded that even if such claim was supported in fact, which it found was not, a conspiracy which does not decrease competition or the number of competitors, or which replaces one distributor with another, is not actionable under the Sherman Act. With respect to attempt or conspiracy to monopolize under 15 U.S.C. § 2, the court concluded the complaint made no allegations supporting a claim thereunder. As to price, service, or credit discrimination under 15 U.S.C. § 13, the court found the only fact situation possibly involving price discrimination was a subsequently corrected mechanical error in a billing; it found that the same services were available to plaintiff and Claiborne alike, but that plaintiff neither accepted nor desired any assistance other than credit; and that discrimination in terms of credit does not as a matter of law violate the Robinson-Patman Act. The allegations of plaintiff relating to the inducements for him to purchase Claiborne’s station are that Claiborne represented that he was “getting entirely out of the tire business,” and that plaintiff believed this and Sun knew about it. The plaintiff then alleges that the defendants used the proceeds of the sale to set up Claiborne at his new place of business to compete with plaintiff. Thus the conspiracy alleged was to induce plaintiff to buy, to use the money to start Claiborne at a new place, and then for defendants to drive plaintiff put of business by price, credit, service, and facilities discrimination. The plaintiff in his complaint does not refer to any monopoly nor to any relevant markets; in fact, neither of the terms appear in the complaint. Two references are made in the complaint to 15 U.S.C. § 2 but are conclusionary only, and were stricken by the trial court. We agree that there are no allegations which can be taken as asserting a violation of 15 U.S.C.A. § 2. The plaintiff is very specific that only a 'cause of action for an antitrust violation has been alleged, and that there is only one conspiracy alleged. We have held that a conspiracy which results merely in the substitution of one distributor for another does not violate 15 U.S.C. § 1. Feddersen Motors, Inc. v. Ward, 180 F.2d 519 (10th Cir.); Shotkin v. General Electric Co., 171 F.2d 236 (10th Cir.). See also, Ace Beer Distributors, Inc. v. Kohn, Inc., 318 F.2d 283 (6th Cir.). An increase in the number of distributors is not actionable under section 1. Claiborne and Sun argue further that any fraudulent misrepresentations by which.they allegedly induced plaintiff’s entry into the market are at best actionable as a business tort. We agree. Plaintiff, however, responds that if such a tort is not acionable under section 1, it is evidence, together with the later discrimination, of the overall conspiracy against him and that in any event conspiracy to restrain trade is a per se violation of section 1. As to the per se violation argument, based on the allegation of a conspiracy to restrain trade, the plaintiff refers to Albert Pick-Barth Co. v. Mitchell Woodbury Corp., 57 F.2d 96 (1st Cir.); the later First Circuit case of Atlantic Heel Co. v. Allied Heel Co., 284 F.2d 879 (1st Cir.); to C. Albert Sauter Co., Inc. v. Richard S. Sauter Co., 368 F.Supp. 501 (E.D.Pa.), and to our decision in Perryton Wholesale, Inc. v. Pioneer Distributing Co. of Kansas, 353 F.2d 618 (10th Cir.). The attorneys at oral argument directed the court’s attention to Whitten v. Paddock Pool Builders, Inc., 508 F.2d 547, First Circuit, No. 74-1169, December 17, 1974, which overruled Albert Pick-Barth and Atlantic Heel. We do not consider Perryton Wholesale, Inc. v. Pioneer Distributing Co. of Kansas, 353 F.2d 618 (10th Cir.), to be applicable to this case, as the court was there concerned with a particular type of business activity which is not present here. Reference is made in the Perryton opinion to existing competition, and it is not necessarily a per se case despite the citation of the First Circuit cases. The complaint, as to the purchase of the business, alleges only a business tort, if anything, as noted above. The subsequent events alleged, and the facts used on the motion for summary judgment, show a series of events which in total amounted to no more than a substitution of distributors. The “in and out” of plaintiff had no impact on the competitive situation, and was not actionable under the antitrust theory of plaintiff’s case. The complaint also contains allegations framed under the Robinson-Patman Act, assertions that the defendant Sun discriminated against plaintiff, as compared to Claiborne, during the relatively short period plaintiff was in business. Both were “distributors” under franchise agreements with Sun. The record shows that defendant Claiborne was engaged in wholesaling tires, sold to him by Sun, from a warehouse. Plaintiff operated the filling station with facilities for retail sales and service of tires, batteries, and accessories, as well as gasoline and oil. Thus tires were only a part of his business. Plaintiff alleges he acquired no Sun service stations as tire customers for wholesale sales which he was franchised to make. The allegations of plaintiff considered in this aspect of the appeal, of course, relate to the “services” and “facilities” provided by Sun, 15 U.S.C. § 13(e), and to price discrimination under 15 U.S.C. § 13(a) to include the granting of credit. It is clear that the allegations of price discrimination are based upon several billing errors made by Sun, but which were corrected. The trial court reached the same conclusion, and it would serve no useful purpose to detail the transactions. Similarly there is also no basis for any assertion of discrimination grounded on the handling of cash discounts, or the annual bonus plan. The trial court concluded that although there may have been a dispute as to the facts relating to the credit terms and conditions arranged by Sun with Claiborne and those with plaintiff, this made no difference because the discrimination in credit terms as alleged could not, as a matter of law, be the basis for a claim under 15 U.S.C. § 13(a) or (e). We agree with this conclusion. It is obvious that differences in the borrower’s financial strength, business experience, and many other factors bring about differences in the terms of credit, security required, guarantees, and other devices used by creditors under these circumstances. See Rea v. Ford Motor Co., 497 F.2d 577 (3d Cir.); Skinner v. United States Steel Corp., 233 F.2d 762 (5th Cir.); and Clausen & Sons, Inc. v. Theo. Hamm Brewing Co., 284 F.Supp. 148 (D.Minn.), reversed on other grounds, 395 F.2d 388 (8th Cir.). We do not say that there could not be a discrimination in credit of such magnitude or nature as to constitute a violation, but no such extreme situation was alleged here by any means. The allegations of the complaint relating to discrimination in the furnishing of facilities are conclusionary only. The record contains nothing which could relate to such an allegation. The allegations concerning the discrimination in the furnishing of services are somewhat more specific. Plaintiff asserts that Sun did not assist him by advice and counseling provided to others to help in soliciting customers, and for other business matters. The deposition of the plaintiff, however, demonstrates that he did not really know what advice or visits were to be expected. What he did expect by way of visits again related to the solicitation of the former customers of the station and his expectations as to competition from Claiborne. There is really no allegation of any specific way in which there was discrimination; there was thus nothing specific that plaintiff asserts was given others that he did not have available to him. Willis Craig, who managed the business for plaintiff for the first month and also during the period before it closed (in fact, for six out of the ten months the business existed), stated that he did not need any such help, that he did not ask for any. He said: “I didn’t need any help. I didn’t need them telling me how to run my business.” It is apparent from the record that the plaintiff was disappointed in the amount of business he had, but there are no allegations of the specific discrimination, and his evidence shows advice was available but was not sought. We agree with the conclusions of the trial court as to this point. The facts were clearly insufficient to establish a prima facie violation of the Robinson-Patman Act. The consequences described in FTC v. Simplicity Pattern Co., 360 U.S. 55, 79 S.Ct. 1005, 3 L.Ed.2d 1079, do not come about as the per se aspects were not brought into being. There were no unresolved questions of fact relevant to the issues when the case is considered strictly as an antitrust action, as plaintiff on appeal asserts that it must be. Disposition by summary judgment under these rather unusual circumstances was proper. The complaint in the final analysis presented questions of law as to several issues, and as to the others, the facts developed left no unresolved questions under the applicable doctrines. See, First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569, and Bushie v. Stenocord Corp., 460 F.2d 116 (9th Cir.). Also there survives no cause of action under state law. Affirmed. 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_adminrev

O

What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable". Michael T. GAGE, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, a Delaware corporation; Ronald Mayer; and Mike Gage Chevrolet, Inc., a Delaware corporation, Defendants-Appellees. No. 84-2426. United States Court of Appeals, Tenth Circuit. June 26, 1986. Kenneth S. Fellman of Kissinger & Lansing, P.C., Denver, Colo., for plaintiff-appellant. Jim Clark of Baker & Hostetler, Denver, Colo., for defendants-appellees. Before BARRETT, MOORE and ANDERSON, Circuit Judges. BARRETT, Circuit Judge. Michael T. Gage (Gage) appeals from an order of the district court granting General Motors Corporation’s, et al. (GM) motion to dismiss. Our disposition requires that the facts be developed in detail. In 1975, Mike Gage Chevrolet, Inc. (MGC), a Delaware corporation, commenced business as a Chevrolet dealership in Broomfield, Colorado. MGC held a GM franchise to sell Chevrolets. GM’s Motor Holding Division was MGC’s majority shareholder. Ronald Mayer and Raymond Trent, both of whom were GM employees, served on MGC’s board of directors. At all times relevant hereto Gage was president of MGC, a minority shareholder of MGC, and the third member of MGC’s board of directors. In May 1981, Gage and one R.D. Sped-ding executed a “Memorandum of Agreement” for the sale of the dealership with Vernon Small, who was to be the new dealer. Gage did not receive authority from GM, MGC’s majority shareholder, or from MGC’s board of directors to enter into a contract for the sale of the dealership to Small. (R., Supp. Vol. I at 15.) Without such authority Gage could not validly contract to sell the corporation’s assets. Id. The sale to Small was not consummated. The dealership was subsequently sold to Howard Goldstein and Robert Stream with GM’s approval. Gage subsequently sued GM in Colorado state court on June 7, 1982. Within his complaint Gage alleged that (1) GM had breached a fiduciary duty by its refusal to approve the sale of the dealership to Small; (2) GM’s conduct interfered with the contractual and business relationship between Small and himself; and (3) GM’s conduct breached the Dealer Sales and Service Agreement between GM and himself. Gage sought $100,000.00 in actual damages and $1,000,000.00 in punitive damages. Gage filed a first amended complaint in state court on January 4, 1983, wherein he realleged the claims of relief set forth in his original complaint and, in addition, alleged that GM’s conduct gave rise to constructive fraud and that he was' entitled to recover all attorney fees and litigation expenses incurred in the suit. On April 20, 1983, the state court, after finding that Gage’s first amended complaint failed to state a claim for relief, entered an order dismissing it. In so doing the state court found: 4. The first claim for relief is premised on an alleged breach of fiduciary duty by reason of Defendant’s failure to approve the sale of the dealerhip [sic] to Vernon Small. Since Gage himself had no authority to sell the assets of the dealership corporation, there was no valid contract on which Defendant could act. 5. The second claim for relief asserts that Defendants wrongfully interfered with the attempts to sell the dealership to Vernon Small. In essence, Plaintiff claims that GM, as majority shareholder and through its employee Mayer, interfered with contractual relations between its own corporation and Vernon Small. This Court has previously ruled that such an assertion does not state a claim for relief. 6. Further, Plaintiff’s first and second claims for relief are premised on the contention that General Motors’ refusal to permit sale of dealership assets to Small was wrongful and actionable. Under the statutes of Delaware, the state of incorporation of Mike Gage Chevrolet, Inc., as well as under the Colorado statutes, the sale of all corporate assets, not in the ordinary course of business, cannot occur without the approval of the shareholders. 8 Del.Ch. 1974, 271; C.R.S.1973, 7-5-112(2). The Delaware Act requires approval of a majority of the stock, while Colorado provides for approval by two-thirds of the outstanding shares. It is therefore, apparent that by exercising its statutory right to vote on any sale of all corporate assets not in the ordinary course of business, General Motors could lawfully prevent a sale here in question to Vernon Small. The exercise of this statutory right cannot subject a shareholder to liability to those who might benefit from such a sale. The decision to sell or not to sell all corporate assets, not in the ordinary course of business, by statute belongs solely to the shareholders and is not reviewable by the courts. Allied Chemical & Dye Corp. v. Steel & Tube Co., 14 Del.Ch. 64, 122 A. 142 (1923); Baron v. Pressed Metals of America, 35 Del.Ch. 581, 123 A.2d 848, 858 (Sup.Ct., 1956). 7. In addition, although General Motors had an absolute legal right to refuse to permit a sale of all assets of Mike Gage Chevrolet, Inc., there is nothing in the complaint to suggest that the proposed sale to Small was ever properly presented to the shareholders for approval. The complaint alleges that the contracts with Small were executed by Mike Gage. There is no indication that these purported contracts were ratified or even presented to the Board of Directors. Mike Gage, as president of Mike Gage Chevrolet, Inc., as a matter of law, lacked authority to enter into the contracts here in question for the sale of all assets to Small. 2A Fletcher, Cyclopedia of Corporations §§ 605-06. The proper procedure to have followed was to first submit the proposed sale to the Board of Directors for approval and, upon the Board’s approval, sumbit [sic] the matter to the shareholders. 8 Del.Ch. 1974, § 271; C.R.S. 1973, 7-5-112(1). The complaint affirmatively shows that this was not done. 8. The third claim for relief is based on an agreement entitled “General Motors Dealer Sales and Service Agreement” executed by GM and Mike Gage Chevrolet, Inc. Plaintiff alleges that such agreement requires GM to purchase the dealership assets if it refuses to approve a sale of those assets to a third party. Because GM refused to purchase the dealership assets after failing to approve the sale to Small, Gage asserts that GM breached the Dealer Sales and Service Agreement. The Agreement itself is before the Court on the pleadings in this case. Since the Agreement is in writing its construction and operation are issues of law for the Court to determine. The Agreement contains no language imposing any obligation on GM to purchase the dealership assets upon disapproval of a sale. The Agreement states only that GM has an option or right of first refusal to purchase the assets if a proposed sale is disapproved. There is no ambiguity to be construed against GM. Under the clear language of the contract, an election not to exercise the right of first refusal cannot constitute a breach of the Agreement. (R., Supp. Vol. I at pp. 15-18 (emphasis supplied).) On June 14, 1984, new counsel for Gage filed a second amended complaint in state court wherein Gage realleged the claims in his first amended complaint, and in addition, alleged an “interference with prospective business advantage.” (R., Supp. Vol. I at p. 24.) On March 26, 1984, the state court entered an order granting Gage’s motion to dismiss his second amended complaint without prejudice after Gage’s counsel stated: For the record, plaintiff’s counsel states as an officer of this court, that he was not aware of the potential federal claim until five days prior to the filing deadline for the second amended complaint, and the only reason for filing the motion to dismiss without prejudice is plaintiff’s desire to bring his claim under 15 U.S.C. § 1221 et seq. (Federal Automobile Dealer’s Day in Court Act.) (R., Vol. I at p. 62. See also, Vol. III at p. 21.) On May 21, 1984, Gage filed a complaint in federal district court. He alleged, as he had previously in state court, claims for (1) breach of fiduciary duties, (2) interference with contractual relationship, and (3) interference with prospective business advantage. In addition Gage alleged, for the first time, that GM’s conduct was violative of the federal Automobile Dealers Day in Court Act (ADDCA) and Colorado’s Dealer’s Day In Court Act (CDDCA), C.R.S. 1973, 12-6-120, et seq. GM moved to dismiss for failure to state a claim upon which relief could be granted. On September 26, 1984, the federal district court entered an order dismissing Gage’s complaint for failure to state a claim upon which relief could be granted. In so doing the court found: 4. The present complaint does not state a claim for relief under the federal Dealer’s Day in Court Act. Under this statute, it is necessary to plea [sic] and prove facts showing coercion, intimidation or threats by the Defendant. Under Delaware law, as well as under Colorado law, General Motors, as the majority shareholder of the dealership corporation, had a legal right not to approve a sale of the corporate assets to Small and to approve the sale to other purchasers. The exercise of these legal rights cannot amount to coercion, intimidation or threats as a matter of law. 5. The requirements of the Colorado Dealer’s Day in Court Act are substantially the same as those under the federal statute and, therefore, to sustain a claim pursuant to the state Act, the Plaintiff must plead and prove coercion, intimidation or threats. As I have previously indicated in connection with the federal Dealer’s claim, General Motors, as majority shareholder, of Mike Gage Chevrolet, Inc., had a right to reject the proposed sale of assets to Small and to direct a sale of such assets to some other party. As a result, the complaint states no claim under the state Dealer’s Day in Court Act. 6. As to the third, fourth and fifth claims for relief, it is clear that Plaintiff did not have authority to enter into a binding contract for the sale of all of the corporate assets. Such a transaction would have to be approved by the board of directors and, even then, was subject to being disapproved by the shareholders. The only contract which was made and approved by both the directors and shareholders of Mike Gage Chevrolet, Inc. was the one with Goldstein and Stream. Since the ultimate authority to approve or disapprove a sale of all corporate assets did not rest with Plaintiff, any agreement which he may have had with Small was invalid and not binding on the dealership corporation. In addition, the decision of Judge Kingsley dismissing Plaintiffs amended complaint in the state litgation [sic] is the law of the case and must be followed in resolving the issues presented by Defendants’ motion. Judge Kingsley’s Order states that the Plaintiff’s claims for breach of fiduciary duty, interference with contract and interference with business relationships fail to state claims upon which relief can be granted. (R., Vol. I at p. 68 (emphasis supplied).) On appeal Gage contends that: (1) as a minority shareholder his complaint stated a claim for relief against GM as the majority shareholder, for breach of fiduciary duty; (2) he had a valid claim against GM for interference with prospective business advantage; (3) he alleged a claim for relief under both the federal Automobile Dealer Day In Court-Act and the Colorado Dealer Act; and (4) the law of the case doctrine should not apply, since the complaint dismissed in state court was substantially different from the complaint dismissed in federal court. I. Gage contends that the law of the case doctrine was improperly applied by the federal district court in dismissing counts three, four and five of his federal complaint, because these counts were “substantially different” from those in his earlier state court complaints. We disagree. The federal court, in considering Gage’s third, fourth, and fifth claims for relief, which were identical in all material respects with his state court claims, noted that since Gage, as president of MGC, contracted with Small without approval of the board of directors and the shareholders, the contract was invalid and not binding on MGC. The court further found: In addition, the decision of Judge Kingsley dismissing Plaintiff’s amended complaint in state litigation is the law of the casé and must be followed in resolving the issues presented by Defendants’ [GM] motion. (R., Vol. I at p. 68.) The law of the case doctrine is a restriction self-imposed by the courts in the interests of judicial efficiency. Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912); Bromley v. Crisp, 561 F.2d 1351, 1363 (10th Cir.1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 499 (1978). It is a rule based on sound public policy that litigation should come to an end, Todd Shipyards v. Auto Transport, S.A., 763 F.2d 745 (5th Cir.1985), and is designed to bring about a quick resolution of disputes by preventing continued re-argument of issues already decided. Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981). The law of the case rule applies only when there has been a final decision. United States v. United States Smelting Co., 339 U.S. 186, 198-99, 70 S.Ct. 537, 544, 94 L.Ed. 750 (1950); United States v. Bettenhausen, 499 F.2d 1223, 1330 (10th Cir.1974). The law of case rule applies, as here, when a federal district court reviews matters previously considered in state court involving the same parties. In Gemini Supply Corporation v. Zeitlin, 590 F.Supp. 153, 159 (E.D.N.Y.1984) (emphasis supplied) the court noted: Although the doctrine of law of the case is not as rigid as the related doctrines of res judicata or collateral estoppel, see J. Moore, J. Lucas & T. Currier, 1 b Moore’s Federal Practice, 118 (2d Ed. 1983), we are hesitant to upset the determination of a State court on a question of State law, absent a showing of “substantially different evidence at a subsequent trial, new controlling authority, or the prior decision was clearly erroneous and would result in injustice.” Handi Investment Co. v. Mobil Oil Co., 653 F.2d 391 (9th Cir.1981). In Barrett v. Baylor, 457 F.2d 119, 123-24, (7th Cir.1972) the court quoted with approval Professor Moore’s observations vis a vis the applicability of the law of the case rule in federal court where a state court established the substantive rule in litigation which the state court later dismissed without prejudice: Professor Moore summarizes the law in this area as follows (1B Moore’s Federal Practice (2d ed. 1965) ¶ 0.404 [7]): “It follows from what has been said that in a non-federal matter where the state substantive rule has been established in state court litigation that is still pending or has been dismissed without prejudice, the state rule constitutes the law of the case in another action in the federal court involving the same matter and the same parties, or those in privy with them, unless, of course, the rule enunciated no longer represents the state law.” Applying these standards we hold that the federal district court properly applied the law of the case rule in considering Gage’s third, fourth and fifth claims for alleged breach of fiduciary duties and interference with contractual and business relationships. As set forth supra, the state court, in a final decision of April 20, 1983, dismissed these same claims. In so doing, the court found that Gage, as president of MGC, did not have the authority to enter into a binding contract for the sale of all of MGC’s corporate assets and that under the laws of both Delaware and Colorado such a sale was subject to the approval of both the board of directors and shareholders. Gage did not appeal from this state court dismissal. Rather, he opted to file in federal court “to bring his claim under” the federal Automobile Dealer’s Day in Court Act. Nothing in the record before us indicates “substantially different evidence” between Gage’s three state claims as presented in the state court and those presented in the federal court. Furthermore, there was no “new authority” presented to the federal court or indication “[that] the prior decision [state court] was clearly erroneous and would result in injustice.” Gemini Supply Corporation v. Zeitlin, supra. The law of case rule was properly applied herein. II. Gage contends that he alleged a viable claim for relief under both the federal Automobile Dealer’s Day In Court Act and Colorado’s Dealer Act. Gage argues: Having shown that GM’s refusal to consider the sale to Vernon Small, and approval of the sale to Stream and Gold-stein, constitutes a valid claim of breach of fiduciary duties owed to the minority shareholder and dealership, it is Gage’s position that these breaches of fiduciary duties constitutes a series of acts amounting to threats or coercion and intimidation on the part of GM, entitling Gage to state a claim for relief under the DDCA and CDA. (Appellant’s Brief at p. 11-12.) Assuming, arguendo, that Gage had actually established a “valid claim of breach of fiduciary duty,” he has, nonetheless, failed to establish a “series of acts amounting to threats or coercion and intimidation on the part of GM,” giving rise to a failure to perform in good faith. In Zarbock v. Chrysler Corporation, 235 F.Supp. 130, 133 (D.Colo.1964) the court stated: Plaintiff has brought this suit under that portion of the Automobile Dealer Franchise Act which provides a cause of action against an automobile manufacturer who fails to “act in good faith in performing or complying with any of the terms or provisions of the franchise____” 15 U.S.C. § 1222. “Good faith” is defined in the Act as: “[T]he duty of each party to any franchise ... to act in a fair and equitable manner toward each other so as to guarantee the one party freedom from coercion, intimidation, or threats of coercion or intimidation from the other party: Provided, that recommendation, endorsement, exposition, persuasion, urging or argument shall not be deemed to constitute a lack of good faith.” 15 U.S.C. § 1221(e). Therefore, the actionable conduct must clearly involve “coercion or intimidation or threats of coercion or intimidation of the dealer.” The Act has been very recently construed in Globe Motors, Inc. v. Studebaker-Packard Corp., 328 F.2d 645 (3 Cir., 1964). Here it was stated that the statute did not provide a new remedy for breach of contract but created a new cause of action. An indispensable element of this new cause of action is not the lack of good faith in the ordinary sense, but a lack of good faith in which. “coercion, intimidation or threats” are at least implicit. “Lack of good faith” is not to be liberally construed. That GM opted not to sell to Small but preferred to sell to Goldstein and Stream cannot be considered a failure to act in good faith when, as here, there is no evidence of intimidation, threats, or coercion. Even were we to assume that GM’s action in this regard was arbitrary, mere arbitrariness on the part of a manufacturer does not constitute a violation of the federal act. Colonial Ford, Inc. v. Ford Motor Co., 577 F.2d 106, 110 (10th Cir.1978), cert denied, 444 U.S. 837, 100 S.Ct. 73, 62 L.Ed.2d 48 (1979); Randy’s Studebaker Sales, Inc. v. Nissan Motor Corporation, 533 F.2d 510, 514 (10th Cir.1976). We hold that the district court did not err in finding that Gage’s complaint did not state a claim for relief under the federal Dealer’s Day In Court Act or the Colorado Dealer’s Day In Court Act. As the district court observed, “General Motors, as the majority shareholder of the dealership corporation, had a legal right not to approve a sale of the corporate assets to Small and to approve the sale to other purchasers. The exercise of these legal rights cannot amount to coercion,' intimidation or threats as a matter of law.” (R., Vol. I at p. 68.) III. We have considered carefully Gage’s remaining contentions and hold that they are without merit. AFFIRMED. . Breach of fiduciary duties and interference with contractual and business relationships. Question: What federal agency's decision was reviewed by the court of appeals? A. Benefits Review Board B. Civil Aeronautics Board C. Civil Service Commission D. Federal Communications Commission E. Federal Energy Regulatory Commission F. Federal Power Commission G. Federal Maritime Commission H. Federal Trade Commission I. Interstate Commerce Commission J. National Labor Relations Board K. Atomic Energy Commission L. Nuclear Regulatory Commission M. Securities & Exchange Commission N. Other federal agency O. Not ascertained or not applicable Answer:

songer_circuit

H

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. S. BIRITZ CONSTRUCTION CO., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Joseph S. BIRITZ and Dorothy Biritz, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Nos. 18816, 18817. United States Court of Appeals Eighth Circuit. Dec. 12, 1967. Oliver W. Schneider, Clayton, Mo., for petitioners; Donald H. Whaley, Clayton, Mo., on the brief. Robert J. Campbell, Atty., Dept, of Justice, Washington, D. C., Mitchell Rogovin, Asst. Atty. Gen., Dept, of Justice, Lee A. Jackson, Harry Baum, Robert H. Solomon, Attys., Dept, of Justice, Washington, D. C., for respondent. Before VAN OOSTERHOUT, GIBSON and HEANEY, Circuit Judges. FLOYD R. GIBSON, Circuit Judge. This is a petition to review two decisions of the Tax Court, holding that a note taken by a sole stockholder from his corporation in exchange for some land represented a contribution to capital rather than a debt. The decisions concern a single issue and were consolidated for purpose of trial and for review. The Tax Court in an opinion by Scott, J., sustained the determination of the Commissioner of Internal Revenue increasing the taxable income of petitioners, Joseph and Dorothy Biritz, for the calendar year 1960 by $15,290, as additional dividend income resulting from the payment of a $20,653 demand note given by the corporation to Biritz in 1954. The total amount paid could not be treated as a dividend distribution as there was only available for dividend distribution (out of earnings and profits for the period of the corporation’s existence) the amount assessed. Likewise, the Tax Court sustained the Commissioner’s dis-allowance of interest deductions of $1239 claimed by the petitioner corporation for its fiscal years 1959 and 1960, and treated these payments as non-dednctible dividend distributions. A determination of whether an advance made by a stockholder to a closed corporation creates a true debtor-creditor relationship or actually represents a contribution to capital depends upon the particular facts of each case. John Kelley Co. v. Commissioner of Internal Revenue, 326 U.S. 521, 66 S.Ct. 299, 90 L.Ed. 278 (1946); Gooding Amusement Co. v. Commissioner of Internal Revenue, 236 F.2d 159 (6 Cir. 1956), cert. denied 352 U.S. 1031, 77 S.Ct. 595, 1 L.Ed.2d 599. It is, therefore, necessary to set out in some detail the factual situation and background of the transaction under review. Joseph Biritz began working in the building trades as a carpenter in 1934. From 1938 until 1949, except for time spent in the Armed Forces, Biritz built homes in partnership with another person for various real estate companies. The homes were financed by the real estate companies that contracted for them. In 1949 Biritz began to conduct his business as a sole proprietor, which business consisted principally of carpentry work in connection with building homes, repair work, room additions and millwright work. Financing of the homes built was supplied by the buyers who made partial payments as the work progressed. However, on minor repairs or small jobs Biritz would finance the work and render his bill on completion. It was his policy to pay subcontractors and suppliers within thirty days and take advantage of discounts offered. On November 21, 1952 Biritz and his wife acquired a tract of land containing 10.847 acres for $21,386. From the date of acquisition until the incorporation of J. S. Biritz Construction Co., $5,924 was expended improving the property. A friend of Biritz suggested that he incorporate in order to limit his personal liability. Upon discussing this matter with his lawyer, who also approved of incorporating, the corporation was organized under the laws of the State of Missouri. The assets and liabilities of the Joseph Biritz sole proprietorship were transferred to the corporation along with the real estate mentioned in exchange for capital stock and the promissory note in question. The assets transferred where valued at $30,765, the principal asset being the tract of improved land valued at $27,310 (which was apparently the cost basis). Minor liabilities were assumed and no cash was paid into the corporation. The corporation issued 996 shares of its $10 par value common stock to Biritz, and two qualifying shares, necessary under Missouri law, were issued to Dorothy Biritz and to her father. As part of the same corporate financing the corporation issued a demand negotiable promissory note to Joseph Biritz dated March 6, 1954 in the amount of $20,653 bearing interest at the annual rate of 6 per cent. This note was not secured. The note was set up on the corporate records as a note payable and interest thereon was paid annually at-the rate of 6 per cent in cash or by the issuance of another promissory note, which in turn was later paid. The corporation deducted the annual interest paid on the note on its tax return as interest paid under § 163 (a) of the Internal Revenue Code (26 U.S.C. § 163(a)). After incorporation additional amounts were spent in developing the land, which amounts were advanced by Biritz and carried on the corporation’s books as “J. S. Biritz Account.” At the close of the corporation’s fiscal year ending February 28, 1955 the corporation owed Biritz $35,680 on this account. Of this amount $31,114 represented expenditures made by Biritz personally to improve the land, which was platted as “Biritz Drive.” By the end of fiscal year 1956 the “J. S. Biritz Account” had been reduced to $7,821 and the account continued to reduce in amount until the end of fiscal year 1960 when only $1,132 was shown as owing Biritz. From the time of incorporation until February 1960 the corporation completed construction of and sold 11 residences on Biritz Drive, 7 of these residences were constructed under contract after the lots were sold, 3 were fully constructed prior to sale, and 1 was partially constructed prior to sale. The corporation did not obtain construction loans on any of these houses. The majority of the homes built were financed by means of earnest money and progress payments made by the purchasers. Some costs of construction were defrayed by notes given by Biritz as well as advances made to the corporation on open account. In addition to the development of Biritz Drive, the corporation continued to do repair work, room additions and millwright work along the same general lines as had been done by Biritz as a sole proprietor. The volume of business of the corporation averaged about $130,-000 per year from 1954 through fiscal 1960. The sales of homes and lots averaged about $80,000 per year while income resulting from remodeling and repairing averaged about $50,000 per year, although in fiscal 1955 and 1959 income from remodeling and repairing totaled more than from the sale of homes and lots. The corporation’s books for the period 1954 through 1960 showed notes (not at issue here) were issued to J. S. Biritz and Dorothy Biritz for such purposes as office rent, officers’ salaries, etc., which notes generally were paid off in the year issued. The corporation continued the policy instituted by Biritz of paying all trade accounts within thirty days. On February 10, 1960, the promissory note issued by the corporation in 1954 to Joseph Biritz in the amount of $20,-653 was paid to him upon demand in order that he might embark on another business venture. The Tax Court concluded that the payment of the note to Biritz was a dividend distribution to the extent of available corporate earnings, finding that the note did not represent a true indebtedness but was rather an equity investment by Biritz in the corporation. The rationale of the Tax Court opinion was that Biritz intended to place all of the assets transferred to the corporation at the date of its incorporation at the risk of the corporate business and that Biritz intended that the note was to be paid “only if and when the corporation had sufficient profits to make the payment without handicapping the [corporate] operation.” The Tax Court pointed out that the corporation had no working capital and could only obtain working capital from Biritz or from mortgaging the land transferred to it, and found significant the fact that Biritz did not take back a mortgage on the land. The Tax Court found that the corporation could operate on its limited initial assets only because of Biritz’s assistance and concluded that Biritz “intended that the corporation make payment of interest or principal on this note only if the business were successful and able to pay such amounts without curtailing its business activities”; that the successful development of the land by the corporation was the only circumstance under which Biritz “could reasonably anticipate payment of his note”, and that “The land which petitioner transferred to [he corporation was needed to get the corporation into operation as it in fact did operate. This fact indicates that the note given petitioner for the land represented money at the risk of the corporate business.” And then the Tax Court concluded “that under the circumstances here shown the entire properties transferred to the corporation were in the nature of a contribution to the corporate equity capital at the risk of the corporate business”, and decided the note represented an equity investment and not an indebtedness for federal tax purposes. The Commissioner contends that whether the note represents a true indebtedness for federal income tax purposes is essentially a factual question upon which the taxpayer has the burden of proof, citing John Kelley Co. v. Commissioner of Internal Revenue, supra; Crown Iron Works v. Commissioner of Internal Revenue, 245 F.2d 357 (8 Cir. 1957); Arlington Park Jockey Club v. Sauber, 262 F.2d 902, 905 (7 Cir. 1959); and submits that the findings of the Tax Court on a factual issue should not be disturbed unless clearly erroneous. Commissioner of Internal Revenue v. Dubenstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Crown Iron Works v. Commissioner of Internal Revenue, supra. We agree that since the Commissioner has made the assessment the taxpayer has the burden of proving the transaction in question was a bona fide loan. We do not think, however, that the issue presented is solely or even essentially a factual one but is a mixed question of law and fact. The factual question is intertwined with the applicable principles of law that should be accorded recognition in making the factual determination. See concurring opinion of Waterman, J., in Gilbert v. Commissioner of Internal Revenue, 248 F.2d 399, 408 (2 Cir. 1957), cert. denied 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1950). A brief look at the scope of review provisions in tax cases is helpful at this point. In Dobson v. Commissioner of Internal Revenue, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248 (1943), the Supreme Court enunciated the rule that questions of fact or mixed questions of law and fact having a “ ‘warrant in the record’ and a reasonable basis in the law” decided by the Tax Court were not reviewable by the Courts of Appeals under the applicable review provision of the 1926 Revenue Act, which provided on review from the Board of Tax Appeals (now the Tax Court) “* * * such courts shall have power to affirm or, if the decision of the Board is not in accordance with law, to modify or to reverse the decision of the Board * * * ” Revenue Act of 1926, § 1003(b), 44 Stat. 9, 110, Internal Revenue Code, § 1141(c) (1). This standard of review was reaffirmed in John Kelley Co. v. Commissioner of Internal Revenue, 326 U.S. 521, 526-529, 66 S.Ct. 299, 90 L.Ed. 278 (1946). However, Congress in 1948 amended 26 U.S.C. § 1141(a) by inserting in paragraph (a), which gives the courts of appeal exclusive jurisdiction to review decisions of the Tax Court (with an exception not pertinent to this issue), the following clause setting forth the standard of review, “in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury.” (Title 26 U.S.C. § 1141 now appears as § 7482 of Title 26 U.S.C.). This makes applicable Rule 52(a), Fed.R.Civ.P. which also imposes the “clearly erroneous” standard of review on factual issues. However, as pointed out in Judge Waterman’s concurring opinion in Gilbert v. Commissioner of Internal Revenue, supra, the issue of whether advances made to a corporation gives rise to debts as that term is used in § 23 (k) of the Internal Revenue Code is a mixed question of law and fact. The advancements of moneys or equivalent assets to a closely held corporation in a transaction that is alleged or intended to create a debtor-creditor relationship has given rise to much litigation. The Commissioner generally takes the position that these advances constitute contributions to equity capital and are not true loans for federal tax purposes. The tax consequences are manifest to those knowledgeable in accounting, tax laws, and sophisticated corporate operations. As noted in John Kelley Co. v. Commissioner of Internal Revenue, 326 U.S. 521, 530, 66 S.Ct. 299, 90 L.Ed.2d 278 (1946), interest and dividends are well understood words and need no further definition. One line of cases represented by Kelley deals with situations where the debentures or loan agreements contain both elements of an indebtedness and elements of an equity stock. These are commonly referred to as “hybrid” securities, and another line of cases deals with actual moneys or assets advanced and set up as loans on the corporate books either by way of open account or notes payable. We are here concerned only with the question of whether a loan actually was in form and substance made to the corporation. However, both lines of cases contain reasoning and language dealing with the ultimate issue of whether a debt- or-creditor relationship was established under the circumstances in each case. None of the reported cases lays down any comprehensive rule by which the question presented may be decided in all cases and the decision in each case turns upon the particular facts of that case. John Kelley Co. v. Commissioner of Internal Revenue, supra; Gilbert v. Commissioner of Internal Revenue, 248 F.2d 399 (2 Cir. 1957), cert. denied 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959); Gooding Amusement Co. v. Commissioner of Internal Revenue, 236 F.2d 159 (6 Cir. 1956). As noted in Gooding at 165 of 236 F.2d: “* * * [M]ost of the authorities are of little value in the determination of a particular case, for the reason that ‘each depends for its solution upon its own peculiar facts,’ to be determined in the light of all the surrounding circumstances.” Citations omitted. Thus, little purpose would be served by a minute comparison of the myriad details that distinguish the reported cases. The Commissioner properly recognized in his brief: “Cases in this area of the tax law have been characterized ‘by a minute comparison of, and effort to differentiate * * * ’ John Kelley Co. v. Commissioner [of Internal Revenue], supra, [326 U.S. 521] p. 530 [66 S.Ct. 299, 90 L.Ed. 278]. Consequently, most of the authorities are of little value in the determination of a particular case since each depends for its solution upon its own peculiar facts.” There are a number of cases dealing with loan transactions that support the Commissioner’s contention and have upheld the Commissioner in treating what were in form loans to corporations as capital contributions. Without attempting to list all of them, the following are representative and are considered among the leading cases on the issue: Brake & Electric Sales Corp. v. United States, 287 F.2d 426 (1 Cir. 1961); Gooding Amusement Co. v. Commissioner of Internal Revenue, supra; Wood Preserving Corporation v. United States, 347 F.2d 117 (4 Cir. 1965); Arlington Park Jockey Club v. Sauber, 262 F.2d 902 (7 Cir. 1959); McSorley’s, Inc. v. United States, 323 F.2d 900 (10 Cir. 1963); Moughon v. Commissioner of Internal Revenue, 329 F.2d 399 (6 Cir. 1964); Charter Wire, Inc. v. United States, 309 F.2d 878 (7 Cir. 1962). On the other hand there are a number of cases supporting petitioner’s contention that the transaction was in form and substance a loan, creating a true debtor-creditor relationship rather than an equity investment. These cases are: Rowan v. United States, 219 F.2d 51 (5 Cir. 1955); Gloucester Ice & Cold Storage Co. v. Commissioner of Internal Revenue, 298 F.2d 183 (1 Cir. 1962); Nassau Lens Co. v. Commissioner of Internal Revenue, 308 F.2d 39 (2 Cir. 1962); Byerlite Corp. v. Williams, 286 F.2d 285 (6 Cir. 1960); Kraft Foods Co. v. Commissioner of Internal Revenue, 232 F.2d 118 (2 Cir. 1956); Miller’s Estate v. Commissioner of Internal Revenue, 239 F.2d 729 (9 Cir. 1956); Wilshire & Western Sandwiches v. Commissioner of Internal Revenue, 175 F.2d 718 (9 Cir. 1949); Ruspyn Corporation v. Commissioner of Internal Revenue, 18 T.C. 769 (1952). Most of the cases in attempting to assess the true nature of a claimed loan transaction use varying indicia in an attempt to determine the true and actual nature of a transaction. These indicia have varying degrees of relevancy, depending on the particular factual situation and are generally not all applicable to any given case. Indicia used are: (1) Whether the corporation is so grossly under-capitalized that the loans are in fact needed for capital purposes and are actually intended to be risked capital rather than a loan. Burr Oaks Corporation v. Commissioner of Internal Revenue, 365 F.2d 24 (7 Cir. 1966), cert, denied 385 U.S. 1007, 87 S.Ct. 713, 17 L.Ed.2d 545; Aqualane Shores, Inc. v. Commissioner of Internal Revenue, 269 F.2d 116 (5 Cir. 1959) We do not think these so-called “thin capitalization” cases are relevant to this situation as the capital contributed of approximately $10,-000 is substantial in relation to the total debt structure of approximately $20,000, creating a debt ratio of 2 to 1. As stated in Kelley, supra, at p. 526 of 326 U.S., at p. 302 of 66 S.Ct.: “As material amounts of capital were invested in stock, we need not consider the effect of extreme situations such as nominal stock investments and an obviously excessive debt structure.” Again as reasoned in Miller’s Estate v. Commissioner of Internal Revenue, 239 F.2d 729 at 734 (9 Cir. 1956): “We know of no rule which permits the Commissioner to dictate what portion of a corporation’s operations shall be provided for by equity financing rather than by debt. It is common knowledge that the choice of procedures in this regard will vary from corporation to corporation and we think that it cannot be said that any particular method of issuance of stock and incurrence of indebtedness can be labeled as ‘normal’, and hence subject to approval by the Commissioner.”; (2) Whether the purported loans were made in proportion to equity holdings. Charter Wire, Inc. v. United States, supra; McSorley’s, Inc. v. United States, supra; Arlington Park Jockey Club v. Sauber, supra. We do not think this criteria is applicable to a sole stockholder corporation as any loan or advance made by a sole stockholder would be in proportion to his stockholdings. It could have relevancy where there are multiple stockholders, but even there as held in Wilshire and Western Sandwiches v. Commissioner of Internal Revenue, 175 F.2d 718, at p. 720 (9 Cir. 1949): “It is not contended that a corporation is without power to enter into a debtor and creditor relationship with its stockholders. The intent of the parties as to the nature of the transaction controls.”; (3) Whether the repayment of the loan was predicated on the success of the venture. Burr Oaks Corp. v. Commissioner of Internal Revenue, supra; McSorley’s, Inc. v. United States, supra; (4) Whether there was a fixed date for payment of the note and a reasonable expectation of payment by that date. United States v. South Georgia Ry. Co., 107 F.2d 3 (5 Cir. 1939); (5) Whether the note was subordinated to other corporate debts. Nassau Lens Co. v. Commissioner of Internal Revenue, supra; O. H. Kruse Grain & Milling v. Commissioner of Internal Revenue, 279 F.2d 123 (9 Cir. 1960); (6) Whether third parties would have made the loan under the same conditions. Nassau Lens Co. v. Commissioner of Internal Revenue, supra ; Wilbur Security Co. v. Commissioner of Internal Revenue, 279 F.2d 657 (9 Cir. 1960); (7) Whether the claimed loan was secured by a mortgage or otherwise; (8) Whether a provision was made for a sinking fund to retire the loan. Fellinger v. United States, 363 F.2d 826 (6 Cir. 1966); Moughon v. Commissioner of Internal Revenue, supra. A sinking fund would be in order for a relatively large debenture issue but appears to be unwonted in this type of case; (9) Whether the person making the purported loan participated in the management of the corporation. Wilbur Security Co. v. Commissioner of Internal Revenue, supra. In closely held or one-man corporations the stockholder always participates in management; (10) Whether the corporation had a large proportion of debt to equity. The proportion here is clearly within permissible limits. It may readily be seen that several of the above indicia if applied to a one-man corporation would automatically rule out a stockholder making any loan advances to his corporation. However, we do not think that the Commissioner has the authority to say what proportion of a person’s assets should be committed to a particular enterprise and further that there is no statutory bar or law that prohibits a sole stockholder or stockholders of a closely held corporation from creating a true debtor-creditor relationship with the corporation, if the particular transaction under question was actually made as a loan, treated as a loan and was both in form and in substance a loan. As stated in Rowan v. United States, 219 F.2d 51, 55 (5 Cir. 1955): “But the court also recognizes that, entirely without reference to the incidence of taxes stockholders of corporations have always been free to commit to corporate operations such capital as they choose and to lend such additional amounts as they may elect to assist in the operation if that is their true intent, always thus reserving the right to share with other creditors a distribution of assets if the enterprise fails.” The Court in Gloucester Ice & Cold Storage Co. v. Commissioner of Internal Revenue, supra, held $100,000 of 20-year non-subordinate debenture bonds were debt obligations and not a capital investment as held by the Tax Court. In giving effect to the unambiguous form and substance of the transaction, the Court said at p. 185 of 298 F.2d: “There being no element of subterfuge or artifice to escape tax consequences, the bonds speak for themselves. And they speak in clear and unmistakable terms of indebtedness. Therefore there are no disputed questions of fact relevant to the issue to be decided. Inferences cannot avail against patent facts.” Again in Nassau Lens Co. v. Commissioner of Internal Revenue, supra, the Court stated at p. 46 of 308 F.2d: “There is ‘no rule which permits the Commissioner to dictate what portion of a corporation’s operations shall be provided for by equity financing rather than by debt.’ Estate of Miller v. Commissioner of Internal Revenue, 239 F.2d 729, 734 (9th Cir. 1956), so long as the latter can be said to be debt in terms of substantial economic reality.” The Court in Byerlite Corp. v. Williams, 286 F.2d 285 (6 Cir. 1960) recognized large advances to a subsidiary as loans where there was no tax-avoidance scheme and the transaction was not a sham or masquerade. Although there is no one controlling-factor or broad rule that can be used in deciding these cases, the courts have usually recognized advances or loans to a closely held corporation as creating a true debtor-creditor relationship where there is a demonstrable business purpose in making a loan and the transaction is not a tax-avoidance scheme or a sham or masquerade. Byerlite Corp. v. Williams, 286 F.2d 285 (6 Cir. 1960); Ruspyn Corporation v. Commissioner of Internal Revenue, supra. Cf. Talbot Mills v. Commissioner of Internal Revenue, 146 F.2d 809 (1 Cir. 1944), aff’d sub nom. John Kelley Co. v. Commissioner of Internal Revenue, supra, an attempted equity conversion to debt case, where the shadow of tax evasion loomed large. In Kraft Foods Co. v. Commissioner of Internal Revenue, supra, a divided Court held the legal and economic significance of a transaction must be respected even though a minimization of taxes results; provided, of course, the transaction is not a sham or masquerade to cover a tax-avoidance scheme. Many lenders rely upon expected earnings for payment of their debts as liquidation of a corporation or any business venture usually is a salvage operation resulting in only a small percentage being paid to the creditor, whether the creditors be stockholders or third persons. As significantly stated in Miller’s Estate v. Commissioner of Internal Revenue, supra, at 732 of 239 P.2d: “Many borrowers rely upon expected earnings for payment of their debts. We cannot see any justification for inferring that a promissory note is unreal and not representative of the actual arrangement merely because the maker expects to pay out of future earnings.” We think the facts of this ease clearly show that a loan transaction was intended, it being in the form of a loan, was treated as a loan and in substance was a loan. This was not a tax-avoidance scheme nor a mere sham or masquerade. All of the formal details relating to a loan were complied with and the corporate books reflect the transaction as a loan. Any taxpayer under the law should be allowed to commit only so much of his resources to a given venture as he desires in the form of equity or of loans, unless the transaction is a mere subterfuge or sham set up for tax-avoidance purposes. Biritz had a legitimate reason for incorporating and the loan transaction entered into was definitely not a sham or device to escape the double taxation of corporate earnings. Biritz desired to commit only a portion of his available assets to the corporate operation in the form of equity capital and certainly should be allowed to operate as expeditiously and frugally as he desires. One-man corporations are commonly used to limit personal liability. The land transferred to the corporation was actually an inventory asset and not a capital asset in the sense that the land was used as a base of corporate operations, though this factor would not necessarily be controlling. The land was used as an inventory item to further the house building operations of the corporation. The land could have been sold at any time to pay off the corporate loan. The land was not essential to the operations of the corporation in the sense that without it the corporation could not operate. Biritz could have held the land personally, developed it personally and transferred it a lot at a time to the corporation as needed for building purposes. Only an average of two lots a year were used for building purposes. The debt to equity ratio of 2 to 1 is patently not so inordinately high as to qualify this as a “thin capitalization case. The note was in legally proper form to qualify the holder as a general creditor in event of dissolution and was not subordinated to other corporate debts. The interest was paid annually in cash or by a promissory note and taxes paid on this income by Biritz. The demand feature of the note is of some significance as is the lack of a mortgage for security of the note, as a third person would ordinarily require security and prefer a note with a fixed maturity date, but these indicia alone are not controlling; nor can these indicia alone characterize the transaction as a subterfuge or sham. Biritz as the sole stockholder is naturally interested in the successful operation of his corporation and if he does not desire to take the extra trouble and incur the additional expense of a mortgage, he should not be called upon to do so. The demand feature is also one of convenience and is of limited significance in this case. A reasonable and fixed rate of interest was paid and the corporate earnings were not siphoned off by this transaction. There is actually no evidence that this was not a loan, was not intended to be a loan, or that Biritz actually intended to make a capital investment rather than a loan. We think the Tax Court has painted with too broad a brush in limiting the permissible activities of an entrepreneur in personally financing his business. Financing embraces both equity and debt transactions and we do not think the courts should enunciate a rule of law that a sole stockholder may not loan money or transfer assets to a corporation in a loan transaction. If this is to be the law, Congress should so declare it. We feel the controlling principle should be that any transaction which is intrinsically clear upon its face should be accorded its legal due unless the transaction is a mere sham or subterfuge set up solely or principally for tax-avoidance purposes. The conclusion of the Tax Court that the note did not evidence a true loan transaction is erroneous and is reversed. . Tho memorandum findings of fact and opinion of the Tax Court (T.C. Memo. 1966 — 227) are not officially reported. . 26 U.S.C. § 363(a) reads: “(a) General rule. — There shall he allowed as a deduction all interest paid or accrued within tho taxable year on indebtedness.” Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:

songer_jurisdiction

D

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer". A. Henry "Hank” SOAR et al., Plaintiffs, Appellants, v. NATIONAL FOOTBALL LEAGUE PLAYERS’ ASSOCIATION et al., Defendants, Appellees. No. 76-1085. United States Court of Appeals, First Circuit. March 11, 1977. Leonard Decof, Providence, R.I., with whom Philip M. Weinstein and Leonard De-cof, Ltd., Providence, R.I., was on brief, for appellants. Robert V. Atmore, Minneapolis, Minn., with whom Thomas D. Gidley, Hinckley, Allen, Salisbury & Parsons, Providence, R.I., Edward M. Glennon and Lindquist & Vennum, Minneapolis, Minn., were on brief, for National Football League Players Association, appellees. John B. Jones, Jr., Washington, D.C., with whom C. Michael Buxton, Washington, D.C., Edwards & Angelí and John H. Blish, Providence, R.I., were on brief, for National Football League, Pete Rozelle and James Kensil, appellees. Before COFFIN, Chief Judge, and ALD-RICH and McENTEE, Circuit Judges. McENTEE, Senior Circuit Judge. Appellants are several former professional football players who played in the National Football League (“NFL”) and retired before the 1959 season. They brought an action against the NFL and two of its officers and against the National Football League Players’ Association (“NFLPA”) and two of its officers, seeking to recover funds allegedly due in consequence of a trust fund agreement referred to as the “Bert Bell NFL Player Retirement Plan.” Appellants alleged, in part, that an oral contract came into existence on April 23, 1959 between the NFLPA (on behalf of the plaintiffs and others) and the NFL (through Commissioner Bert Bell acting as the League’s agent). According to the plaintiffs, this contract provided that NFL players who retired prior to the 1959 season would be included in a players’ pension plan, would be given pension credits for their years of NFL play before 1959, and would (if sufficient funds became available) be accorded benefits from the pension funds. We need not reproduce here all the facts adduced by appellants as probative of the existence of the oral contract from which their asserted rights to pension benefits allegedly derive. It would require several paragraphs to describe the full factual context in which that contract is said to have been made. For present purposes, however, it suffices to quote the following exchange between William Howton (President of the NFLPA in 1959) and Commissioner Bert Bell: “Howton : ‘Look, we kind of got coerced into accepting this thing. This was Carroll’s suggestion. None of us are included in this plan and it’s not the plan we want.’ Bell: ‘Look, we had to take this plan going on. There was a pretty good fight going on. There was some tempers flaring in the owners’ group. They kind of pushed it in.’ Howton : ‘Bert, we want the retroactive part of it.’ Bell: ‘Look, I assure you, the money will go to retroactive benefits.’ ” This brief conversation constitutes the nucleus of appellants’ theory that a binding oral contract (to which they were parties) was made on April 23, 1959. The conversation allegedly took place in a Philadelphia hotel on that date after the NFL owners had approved a pension plan which would embrace certain NFL players, but not the present appellants. As did the court below, we shall turn first to the alleged contract between appellants and the NFL. The court declined to hold on motion for summary judgment that no agreement existed between Commissioner Bell and the NFLPA, stating that the existence of such an agreement was “an issue of fact appropriate for determination by trial.” See Fed.R.Civ.P. 56(c). It immediately proceeded to hold, however, that even if such an agreement did exist it did not constitute an enforceable contract. The court’s summary judgment as to this issue had three independent bases: 1) “no reasonable person could find on the basis of the evidence . . . that Commissioner Bell had either actual or apparent authority to bind the ‘NFL’ to a pension agreement;” 2) “there was no legal consideration given for the alleged promise by Commissioner Bell to provide plaintiffs pension coverage;” 3) the alleged contract is too indefinite to be enforced. Because we find the last-mentioned reason to be a fully satisfactory basis for the summary judgment on the contractual issue, we do not pass on either of the other grounds. It is fundamental that for a contract to be enforceable it must be of sufficient explicitness so that a court can perceive what are the respective obligations of the parties. Fahringer v. Estate of Strine, 420 Pa. 48, 58, 216 A.2d 82, 88 (1966); Lombardo v. Gasparini Excavating Co., 385 Pa. 388, 392, 123 A.2d 663, 666 (1956); Beachler v. Mellon-Stuart Co., 354 Pa. 341, 343, 47 A.2d 147, 149 (1946). See also Willowood Condominium Association, Inc. v. HNC Realty Co., 531 F.2d 1249, 1251 (5th Cir. 1976); Interocean Shipping Co. v. National Shipping and Trading Corp., 462 F.2d 673, 676 (2d Cir. 1972); Heldenbrand v. Stevenson, 249 F.2d 424, 427-28 (10th Cir. 1957); Air Technology Corp. v. General Electric Co., 347 Mass. 613, 626, 199 N.E.2d 538, 548 (1964); Ansorge v. Kane, 244 N.Y. 395, 155 N.E. 683 (1927) (Pound, J.). Applying this principle to the present case, we are convinced that the district court properly found that the alleged oral contract was too indefinite to be enforced even if it fulfilled the other conditions of a valid contract (e. g. consideration) and even if Commissioner Bell was in fact capable of binding the NFL (the issue of apparent authority). The court listed the following as examples of questions left unanswered and unanswerable by the terms of the purported contract: —“Would the pension plan cover players in the old American Football Conference, some of whose players and teams joined the NFL?” —“Would there be special treatment for players whose careers were disrupted by World War II?” —“Would coverage be extended to players on now defunct teams, and if so, would this disqualify the plan for IRS purposes?” —“What does it mean to say the players will be included when ‘sufficient’ funds are available?” The purported oral contract provides no answer to these questions. It is clear that any agreement which leaves unanswered such critical questions cannot by any reasonable stretch of the imagination be said to represent a real meeting of the minds. While an enforceable contract might be found in some circumstances if one or more such questions were left unanswered, see note 6 supra, the accumulation in the instant ease of so many unanswered questions is convincing evidence that there never was a consensus ad idem between the parties. We are fully persuaded that there was no genuine issue of material fact left to resolve concerning the existence of a contract, Fed.R.Civ.P. 56(c), and the court correctly granted the motion for summary judgment. The contractual claim was Count II; Counts I, III, and IV of the complaint all dealt with various breaches of fiduciary duties owed by the present NFLPA towards appellants. Although in places the complaint does not state with maximum clarity that these alleged fiduciary duties derived from the oral contract discussed above, appellants did so state in their “Memorandum in Objection to Defendant’s [sic] Motion for Summary Judgment or to Dismiss This Action as a Class Action.” This Memorandum indicates very clearly the relatively narrow base on which appellants’ claim of breach of fiduciary duties was founded: “. . . Plaintiffs are not asking these Defendants to bargain for them, but rather that they be compelled to carry out the agreement that was bargained for on April 23, 1959, at which time the pension plan was agreed to in principal [sic], and thereafter adopted in 1962.” “. . . Plaintiffs argue that the Defendants on their portion of trust and confidence owed a duty to them to refrain from placing their personal interests ahead of Plaintiffs in administering the trust in accord with the original agreement to create the pension fund . .” (Emphasis supplied). While we have considerable doubt as to whether any basis for a fiduciary duty could be found apart from the alleged contract of April 23, 1959, we do not pass on that issue since appellants clearly chose to focus exclusively on the contract as the basis for fiduciary obligations. Accordingly, since we have sustained the district court’s summary judgment as to the nonexistence of an enforceable contract, logic compels us to sustain its summary judgment on Counts I, III, and IV. Affirmed. . Appellants also alleged the breach of fiduciary duties owed to them by some or all of the appellees. As we view the case, however, the issue of fiduciary duties need be reached only if there exists a valid contract between the parties. See discussion, infra. . The “Carroll” referred to is Carroll Rosen-bloom, one of the owners. The coercion which Howton mentioned consisted of Rosenbloom’s strong advice to Howton and the other NFLPA representatives that they accept the pension plan approved by the owners on that day without further discussion. Rosenbloom’s exact words (as recalled by Howton) were: “Look, you got the plan, now is not the time to question it. Go in and thank them [the owners]. Tell them you have got faith in the Commissioner and sit down and go over this whole thing with Hyman [an actuarial consultant] later.” . Briefly, the plan approved on April 23 (entitled the “Bert Bell Retirement Plan”) provided for pension eligibility for those players who were active in the 1959 season and played in the NFL for five seasons thereafter (including the 1959 season). The pension trust agreement was not actually executed until 1962; it was approved by the Internal Revenue Service as a qualified pension plan under 26 U.S.C. § 401 in March of 1963. The plan was amended in October 1964 so as to permit those players active in 1959 to use pre-1959 seasons of NFL service to satisfy the five-year vesting requirement. None of the current appellants was benefited by this amendment, nor have there been any subsequent amendments in their favor. . Appellants contend that the instant case was not an appropriate one for summary judgment. We disagree. Summary judgment is in order “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is genuine issue as to any material fact . . .” Fed.R.Civ.P. 56(c). See Rodriguez v. Ritchey, 539 F.2d 394, 401 (5th Cir. 1976); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976); Caplan v. Roberts, 506 F.2d 1039, 1042 (9th Cir. 1974). In determining whether to grant summary judgment, the court must consider the facts in the light most favorable to the party opposing the motion, Rodriguez v. Ritchey, supra at 395, and “must indulge all inferences favorable to the party opposing the motion.” Hahn v. Sargent, supra at 464. The opposing party, however, may not rest upon the allegations made in the pleadings, but has the obligation to “set forth specific facts showing that there is a genuine issue for trial.” First National Bank of Arizona v. Cities Service Co., Inc., 391 U.S. 253, 289-90, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968). See Fed.R.Civ.P. 56(e). See also Hahn v. Sargent, supra at 464; Robin Construction Co. v. United States, 345 F.2d 610 (3d Cir. 1965). A court is not obliged to deny an otherwise persuasive motion for summary judgment “on the basis of a vague supposition that something might turn up at the trial.” Lundeen v. Cordner, 354 F.2d 401, 408 (8th Cir. 1966) (citing cases). The district court’s opinion in this case reflects an awareness of these principles, and as to those matters on which it granted summary judgment we think that it correctly found that there remained “no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c). See Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-61, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). We would also note that there is no rule prohibiting summary judgment in contract actions. The general principles governing dispositions under Rule 56 apply with equal vigor to contract actions. Compare Capian v. Roberts, supra, with Ozark Milling Co. v. Allied Mills, Inc., 480 F.2d 1014 (8th Cir. 1973). See generally 6 J. Moore, Federal Practice 56.17(11] (2d ed. 1976). . As for the question of what law to apply in this diversity case, we must look to the conflict of laws principles of Rhode Island, the forum state, Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). See Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3, 96 S.Ct. 167, 46 L.Ed.2d 3 (1975); Turcotte v. Ford Motor Co., 494 F.2d 173, 176 (1st Cir. 1974). It is reasonably certain that Rhode Island would judge the validity and enforceability of the alleged contract at issue here on the basis of the law of Pennsylvania, the state where the contract was allegedly made. Owens v. Hagenbeck-Wallace Shows Co., 58 R.I. 162, 171, 192 A. 158, 163 (1937). (The Supreme Court of Rhode Island has specifically refrained, in the relatively recent past, from deciding whether the “interest weighing” approach which it follows in tort cases, Woodward v. Stewart, 104 R.I. 290, 243 A.2d 917, cert. denied, 393 U.S. 957, 89 S.Ct. 387, 21 L.Ed.2d 371 (1968), should be applied to contract cases. A. C. Beals Co. v. Rhode Island Hospital, 110 R.I. 275, 287 n.5, 292 A.2d 865, 871 n.5 (1972).) . We recognize, of course, that courts frequently find enforceable contracts in agreements which do not set forth all terms with optimal specificity. See, e. g. Portnoy v. Brown, 430 Pa. 401, 404, 243 A.2d 444, 447 (1968); Suchan v. Swope, 357 Pa. 16, 19, 53 A.2d 116, 118 (1947). See also V’Soske v. Barwick, 404 F.2d 495, 500 (2d Cir. 1968), cert. denied, 394 U.S. 921, 89 S.Ct. 1197, 22 L.Ed.2d 454 (1969); Purvis v. United States ex rel. Associated Sand & Gravel Co., Inc., 344 F.2d 867, 869-70 (9th Cir. 1965); Air Technology Corp. v. General Electric Co., 347 Mass. 613, 626 n.17, 199 N.E.2d 538, 548 n.17 (1964); Shayeb v. Holland, 321 Mass. 429, 73 N.E.2d 731 (1947). Cf. Uniform Commercial Code § 2-204(3) (Official Text 1972). See generally 1. A. Corbin, Contracts §§ 95-108 (1963). The alleged oral contract at issue here, however, is altogether too indefinite concerning too many important particulars for it to be enforceable. “[T]he void is too great, the omissions are too noticeable and the risk of ensnaring a party in a set of contractual obligations . . never knowingly assumed is too serious.” Ginsberg Machine Co. v. J. & H. Label Processing Corp., 341 F.2d 825, 828 (2d Cir. 1965) (distinguishing Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118 N.E. 214 (1917)). . Another important question left unanswered by the purported oral contract is the amount of pension benefits which would be accorded to appellants. . We are also unable to perceive any valid manner in which the purported oral contract could be said to constitute an enforceable “agreement to agree.” See Bryant v. Clark, 163 Tex. 596, 358 S.W.2d 614 (1962); Willmott v. Giarraputo, 5 N.Y.2d 250, 184 N.Y.S.2d 97, 157 N.E.2d 282 (1959). See generally 1 S. Wil-liston, Contracts 45 (3d ed. 1957). . As a result of various propositions in appellants’ brief to this court, appellee NFLPA moved to file a supplemental appendix consisting solely of appellants’ district court “Memorandum in Objection to Defendant’s [sic] Motion for Summary Judgment or to Dismiss This Action as a Class Action.” We deferred action on this motion, but we now allow it. . Cf. Mt. Healthy City School District Board of Education v. Doyle,-U.S.-, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). 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:

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". Richard I. KRODEL, Appellant, v. John J. HOUGHTALING et al., Appellees. No. 72-1094. United States Court of Appeals, Fourth Circuit. Oct. 26, 1972. Richard I. Krodel, pro se. W. W. Koontz, Alexandria, Va., for appellees. Before HAYNSWORTH, Chief Judge, SOBELOFF, Senior Circuit Judge, and FIELD, Circuit Judge. PER CURIAM. Plaintiff appellant sued the defendants for malicious interference with his contract rights, and on this appeal challenges four rulings of the district court: (1) denial of plaintiff’s motion for a jury trial, (2) denial of his motion for a continuance, (3) dismissal of the action for lack of prosecution, and (4) denial of plaintiff’s motion for a new trial. Although the Federal Rules of Civil Procedure preserve the right of trial by jury, Fed.R.Civ.P. 38(a), a timely demand for a jury trial must be filed. Fed.R.Civ.P. 38(b), (d). Since the plaintiff failed to file such a demand, the district court properly denied the motion for a jury trial. The granting of a continuance is a matter which lies within the sound discretion of the trial court, and the district court’s ruling on such motion will not be disturbed absent a showing of abuse of discretion. Montgomery v. Commissioner of Internal Revenue, 367 F.2d 917 (9 Cir. 1966). The plaintiff sought a continuance to enable him to contact material witnesses, but the record reveals that he had neither interviewed nor subpoenaed any of these individuals. The record further indicates that plaintiff knew nothing of the testimony he expected to elicit from these witnesses, and under these circumstances it is manifestly clear that the district judge did not abuse his discretion in denying the motion for a continuance. District courts have “sound judicial discretion” to dismiss an action for “plaintiff’s failure to prosecute it with reasonable diligence * * Timmons v. United States, 194 F.2d 357 (4 Cir. 1952). The plaintiff had ample opportunity to develop evidence in support of his case, but he neither interviewed not subpoenaed witnesses whose whereabouts he knew. Furthermore, the plaintiff himself declined to testify. The district court’s dismissal of the action finds strong support in the record and was well within the court’s discretion. The decision whether to grant or deny a new trial is also a discretionary matter with the trial court. Hopkins v. Coen, 431 F.2d 1055 (6 Cir. 1970); United States for Use and Benefit of Weyerhaeuser Co. v. Bucon Construction Company, 430 F.2d 420 (5 Cir. 1970). In his motion for a new trial the plaintiff asserted that he had discovered new evidence and that he had been prejudiced by reason of bias on the part of the trial judge. However, the plaintiff refused to disclose his newly discovered evidence to the court, implying that he feared such disclosure might result in intimidation of his material witnesses. This conduct on the part of the plaintiff made it impossible for the district court to appraise the alleged new evidence as a ground for granting a new trial. The plaintiff’s contention that the trial court was biased finds no support whatever in the record. Accordingly, we find that the district court acted properly in denying the motion for a new trial. Finding no error in the challenged rulings, the action of the district court is affirmed. Affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:

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. MINIMUM WAGE BOARD OF PUERTO RICO v. LUCE & CO., S. EN C. No. 3989. Circuit Court of Appeals, First Circuit May 22, 1946. Paul A. Sweeney, Atty., Department of Justice, of Washington, D. C. (John F. Sonnett, Asst. Atty. Gen., David L. Kreeger, Sp. Asst. to Atty. Gen., Warner Gardner, Sol., Department of Interior, Irwin W. Silverman, Chief Counsel, Division of Territories and Island Possessions, Department of Interior, and Shirley Ecker Boskey, Atty., Department of Interior, all of Washington, D. C., and Ismael Soldevila, General Counsel, Minimum Wage Board of Puerto Rico, of San Juan, Puerto Rico, on the brief), for appellant. John T. Noonan, of Boston, Mass. (William J. Hession, of Boston, Mass., on the brief), for appellee. Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges. MAGRUDER, Circuit Judge. . The appeal in the instant case is taken from that portion of a judgment of the Supreme Court of Puerto Rico, entered on September 23, 1943, which set aside decree No. 2 issued on February 27, 1943, by the Minimum Wage Board of Puerto Rico. After full consideration we have concluded that the Supreme Court of Puerto Rico was not “inescapably wrong” in holding, as a matter of statutory construction, that the Minimum Wage Act of April 5, 1941, as amended on April 23, 1942, by Act No. 44, did not apply “to contracts for services entered into and executed” before the effective date of the said amendment. It thus becomes unnecessary for us to decide various other issues which would have been presented had we taken a contrary view on the construction of the statute. Act No. 8, approved April 5, 1941, Laws P.R.1941, p. 302, created the Minimum Wage Board of Puerto Rico. The board is charged with the duty of studying the wages, working hours, and labor conditions which prevail in the different occupations, businesses, and industries in Puerto Rico, and of making investigations regarding the health, safety, and well-being of the workers. Whenever the wages paid in any occupation, business, or industry are insufficient to satisfy the normal needs of workers and are detrimental to the maintenance of the minimum standard of living necessary for their health, efficiency, and general well-being, it becomes the duty of the board to appoint a Minimum Wage Committee to investigate the labor conditions prevailing in such occupation, business, or industry, and within a period of three months to report to the board its findings with reference to the minimum wages, the number of working hours, and the labor conditions, indispensable to the maintenance of the health, safety, and general well-being of the workers in such occupation, business, or industry. On the basis of the report by such Minimum Wage Committee, and after a public hearing, the board is empowered to prescribe minimum wages, maximum working hours, and labor conditions by mandatory decree effective sixty days after its promulgation. Violation of the terms of such mandatory decree becomes a misdemeanor subject to punishment by fine or imprisonment. Any person aggrieved by a decree of the board may, within twenty days after promulgation of such decree, apply to the board for reconsideration. A review of the final decision rendered by the board may be obtained in the Supreme Court of Puerto Rico within fifteen days after the service thereof, and the court may affirm or set aside the decision of the board. In January and February of 1942, a serious strike took place in the Puerto Rican sugar industry. Representatives of the insular government intervened, and the men went back to work on February 16, 1942. There had been delay in the organization of the Minimum Wage Board, which did not hold its inaugural session until February 9, 1942, while the strike was still pending. At its first ordinary session, on February 11, 1942, the board resolved to make a study of the sugar cane industry for the purpose of regulating minimum wages, hours of work and working conditions. Shortly after the termination of the strike, an amendment was made to the Minimum Wage Act by Act No. 44, approved April 23, 1942, Laws P.R.1942, p. 476. Since the Act was not passed by a vote of two thirds of all the members elected to each house, it did not become effective until ninety days thereafter, that is, on July 23, 1942, as provided in § 34 of the Organic Act, 39 Stat. 961, 48 U.S.C.A. § 825. The pertinent portions of Act No. 44 are as follows: “Section 1. — Statement of Motives.— Without prejudice to the sacred right of striking, which belongs to workmen in order to better their living or working conditions, it is advisable and necessary to insure the permanence of industrial activities in Puerto Rico and to prevent the workmen from leaving their work when controversies arise between them and their employers in regard to wages, which controversies may be solved through the prompt fixing of reasonable wages. For such purpose, it is the duty of the State to determine proceedings which, guaranteeing to the workmen their right to claim better compensation, permit them to continue receiving the means indispensable for meeting their needs, and permit the industry to ■continue using the services of such workmen until their claims are aired. In times ■of emergency, when the uninterrupted activity of all industries is still more necessary, the establishment of special proceedings for the prompt fixing of wages, which, being applied in some cases with a retroactive effect, thus avoid the stoppage of the industry or the temporary deprivation of the workmen of their means of livelihood, is made more advisable. “Section 2. — A new section numbered 10-A is hereby added to Act No. 8, * * * which section shall read as follows : “Section 10-A. — Notwithstanding the provisions of other sections of this Act, the Governor of Puerto Rico, through a proclamation for that purpose, may require at any time that the Minimum Wage Board appoint a Minimum Wage Committee to investigate the working conditions prevailing in a certain occupation, business, or industry, where there exists or has existed within the six (6) months preceding the date of the Governor’s proclamation, a state of strike, lockout, emergency, or controversy between workmen and employers, in regard to wages, and fix the minimum wages that shall be paid in the occupation, business, or industry in question. “The Governor, on issuing the proclamation provided for in this section, shall set forth that the wages that the board may fix shall have retroactive effect to the date on which the laborers returned, or may return, to work. * * * “(b) That the mandatory decree which the board shall issue, in accordance with Section 10 of this Act, shall be effective immediately and shall also have retroactive effect, as to the wages fixed, to the date on which the laborers in the industry in question returned, or may return, to work, if that act occurred prior to the promulgation of the decree of the board. The board shall determine the date of the return of the laborers to their work.” Purporting to act under the authority of the new Section 10-A, the governor on July 29, 1942, issued the following proclamation : “By the Governor of Puerto Rico A Proclamation. Directing the Minimum Wage Board to fix Minimum Wages for the Sugar Industry. Whereas, It is of public knowledge that at the commencement of the sugar grinding season of this year in Puerto Rico and during the second fortnight of January and the first one of February, 1942, a large part of the laborers engaged in the sugar industry were on strike, and Whereas, The said laborers returned to their work on the understanding that the Minimum Wage Board was to study the sugar industry of Puerto Rico and fix proper minimum wages, Now, therefore, I, R. G. Tugwell, Governor of Puerto Rico, pursuant to the authority vested in me by Section 10-A of Act No. 8 of April 5, 1941 as amended by Act 44, approved April 23, Í942, do hereby require the Minimum Wage Board to appoint a Minimum Wage Committee to investigate labor conditions existing in the sugar industry of Puerto Rico so that the Board may fix the minimum wages that should be paid to the employees of said industry. The wages fixed by the Board, in due course and in accordance with the provisions of Section 10-A of the above mentioned Act, shall have retroactive effect to the date on which the laborers who were on strike returned to their work, said date to be determined by the Board. In witness whereof, I have hereunto set my hand and caused to be affixed the Great Seal of Puerto Rico at the City of San Juan, this 29th day of July A.D.-, nineteen hundred and forty-two. (Seal) R. G. Tugwell, Governor.” On August 14, 1942, the Minimum Wage Board appointed a Minimum Wage Committee for the sugar industry as required by the terms of the governor’s proclamation. The board decided that the members of the committee so appointed should act and proceed also as a separate committee under § 6 of the original Act, pursuant to which a prospective mandatory decree might be issued prescribing minimum wages, maximum hours, and working conditions; and accordingly, on August 21, 1942, appointed said members as such separate committee. The committee, in its dual capacity, conducted hearings during August and September, 1942, and submitted its recommendations to the Minimum Wage Board. The first recommendation dealt with the minimum wages which should be paid in the sugar industry from February 16, 1942, the date on which the workers had returned to work; the second dealt with the minimum wages which should be paid and the maximum hours and labor conditions which should obtain in the future. After receipt of these recommendations from the committee, the Minimum Wage Board held public hearings between November 25 and December 18, 1942, at which hearings the present appellee appeared and participated. At the conclusion of the hearings the board issued two orders, known respectively as decree No. 2 and decree No. 3. Decree No. 3, which was prospective in its operation and did not derive its statutory authority from the new Section 10-A, fixed the minimum wage for workers in the sugar industry prospectively, and prescribed certain working conditions. Decree No. 2, which was issued pursuant to Section 10-A, prescribed minimum wage rates for workers in the agricultural and industrial phases of the sugar industry,- and directed that such wages be paid to the workers retroactively to February 16, 1942, the “date when the workmen who were on strike returned to their work.” Appellee filed with the board a petition for reconsideration of both decrees, setting forth that they were in excess of the board’s authority on several enumerated grounds. After a hearing thereon, the petition for reconsideration was disallowed by the board. Thereafter, appellee duly filed its petition in the Supreme Court of Puerto Rico, under § 24 of the Minimum Wage Act, seeking review of mandatory decrees Nos. 2 and 3. That court upheld the validity of decree No. 3, and this phase of the litigation is not now before us. We are, however, concerned with decree No. 2, which was held invalid as beyond the competence of the Minimum Wage Board on the ground that the provisions of Section 10-A were not, as a matter of statutory construction, retroactively applicable to a strike which had ended before the enactment of Act No. 44. In this connection the court below said: “It is a universal principle of law, embodied in Section 3 of the Civil Code, that civil statutes of a substantive nature shall not have a retroactive effect unless they expressly so provide, and even then, in no case shall they prejudice rights acquired under the provisions of prior legislation. “If Section 10-A which we are discussing is examined, it will be readily seen that it fails to provide, either expressly or even impliedly, that it should have a retroactive effect. On the contrary, the pertinent part of the statement of motives, as well as the purposes of the law itself, clearly show that such was not the intention of the lawmaker. The evident purpose of the law, as the same appears from the statement of motives, is to prevent laborers from leaving their work while their claims are pending determination, thus depriving themselves of the means indispensable to provide for their needs, while at the same time they paralyze the industry by depriving it of their labor. Such being the purpose of the law, it is easy to understand that its provisions can have no application to a situation which it is unnecessary to prevent, nor could it be prevented, because it had -come to an end long before the act itself went into effect.” Board’s Exhibit 22 is a book edited as an official publication by “Government of Puerto Rico — Minimum Wage Board — Division of Researches and Statistics”. In this book the following statement appears: “The strike of the cane workers affiliated with the General Confederation of Workmen of Puerto Rico produced a stoppage in the sugar industry, which started on January 19, 1942. It ended when the workmen returned to their jobs on February 16, with the understanding that the Minimum Wage Board would make as soon as possible a study of the sugar industry in order to fix adequate minimum wages and that the Minimum Wage Act would be amended to make the wages set by the Board retroactive to the date of the return of the workmen to their jobs.” The record also contains extracts from the official publication “Minutes of the Senate of Puerto Rico, Fifteenth Legislature, Second Regular Session, 1942”, giving statements made on the floor of the Senate by the majority and minority floor leaders just after the vote had been taken on the final passage of the amendatory bill. Appellant insists that these statements disclose an understanding on the part of these two senators that Act 44 was intended to apply retroactively to the strike in the sugar industry which had terminated on the previous February 16. These statements seem to us to be somewhat inconclusive. Appellant has also submitted to us, in the form of an appendix to its reply brief, various excerpts from a newspaper published in San Juan designed to show that as a matter of common knowledge, of which this court might take judicial notice, the workers had been induced to terminate their strike in the sugar industry on February 16, 1942, on the strength of assurances by the president of the Senate that he would endeavor to have the Minimum Wage Act amended so as to empower the board to prescribe minimum wages in the sugar industry retroactive to the date the men returned to work. Appellee objects to our reception and consideration of this material; but in the view we take the point is unimportant. If such assurances were given to the workmen on strike, they could not, of course, bind the legislature as to its future action. Incidentally,-appellant’s assertion as to the nature of the assurances which brought the particular strike to an end is not borne out by the recital in the governor’s proclamation, which merely stated: “The said laborers returned to their work on the understanding that the Minimum Wage Board was to study the sugar industry of Puerto Rico and fix proper minimum wages”. In ascertaining the intention of the legislature, the Supreme Court of Puerto Rico excluded from consideration everything outside the text of Act 44 itself. This it was at liberty to do, for the Supreme Court of the United States has emphasized as a cardinal principle of review in appeals involving the interpretation of local legislation “that the mere fact that our own system of law and statutory construction would call for the application of one rule to a given set of facts, does not preclude the adoption of a different one by the insular courts.” De Castro v. Board of Commissioners, 1944, 322 U.S. 451, 455, 64 S.Ct. 1121, 1123, 88 L.Ed. 1384. In addition to that, the view of the Supreme Court of Puerto Rico as to the canon of construction applicable here is fortified by the provision in § 3 of the Civil Code of Puerto Rico (1930 Ed.) that “Laws shall not have a retroactive effect unless they expressly so decree.” Quite obviously the construction of Act 44 urged by appellant, and rejected by the court below, would involve giving Act 44 a retroactive effect. It would mean that an Act passed April 23, 1942, and not effective until July 23, 1942, empowered the Minimum Wage Board to impose upon employers in the sugar industry an obligation to pay additional compensation to their workers for services rendered from and after February 16, 1942, thus affecting contracts of employment already performed before the Act was passed. Whether the legislature might constitutionally have done this we need not now inquire, but we cannot say that the court below manifestly erred in concluding that the language of Act 44 contains no clear expression of such legislative purpose, in the absence of which the Act should be taken as having a prospective operation only. Act 44 does indeed specifically provide that retroactive effect shall be given to minimum wage decrees of the board issued under Section 10-A. That is, when Act 44 becomes effective, if a strike thereafter occurs and the men later return to work, a wage decree under Section 10-A may be promulgated with retroactive effect to the date on which the strike terminated. But this is not to say that Act 44 itself is to be effective retroactively so as to authorize the fixing of minimum wages for services that had already been rendered prior to the passage of the Act. As applied prospectively, in accordance with the construction adopted by the court below, Act 44 is intelligible legislation fully accomplishing the purpose set forth by the legislature in its formal Statement of Motives. In the future, if a strike occurs of such importance as to justify the governor in invoking the provisions of Section 10-A, the men can be persuaded to go back to work upon the assurance of the governor that he' will by proclamation require the Minimum Wage Board to proceed under Section 10-A, with the result that the eventual minimum wage order issued by the board in an accelerated proceeding will be retroactive to the date the men returned to work. Appellant also contends that Act 44 on its face does expressly authorize retroactive application of a minimum wage order to services already rendered before the Act was passed, in that the governor’s proclamation of July 29, 1942, invoking the provisions of Section 10-A, was authorized by the literal language of that section. That section authorizes such action by the governor “where there exists or has existed within the six (6) months preceding the date of the Governor’s proclamation, a state of strike, * * * in regard to wages. * * * ” Since the strike in the sugar industry did not end until February 16, 1942, it can be said that a “state of strike” in the particular industry existed within six months preceding the date of the governor’s proclamation. But on the face of Act 44, it does not appear to be ad hoc legislation. Rather, it is general legislation amending the permanent structure of the Minimum Wage Act so as to afford an orderly method of dealing with acute strike situations which may occur in the future. Section 10-A does not expressly state that it shall apply retroactively to strikes which had already terminated. In the absence of some indication to that effect, in unmistakable terms, the court below was at liberty to construe the six-months provision as referring to strikes which might occur after the passage of the Act. To borrow a phrase from one of our earlier opinions, we would need a touch of arrogance to be able to say that the unanimous decision of the court below as to the meaning of'Act No. 44 was “inescapably wrong”. The judgment of the Supreme Court of Puerto Rico is affirmed. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:

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. UNITED STATES v. ADDONIZIO et al. No. 78-156. Argued March 27, 1979 — Decided June 4, 1979 Deputy Solicitor General Easterbrook argued the cause for the United States. With him on the briefs were Solicitor General McCree and Assistant Attorney General Heymann. Michael Edelson argued the cause and filed a brief for respondent Addonizio. Leon J. Greenspan argued the cause for respondents Whelan and Flaherty. With him on the brief was Joseph D. DeSalvo. Kenneth N. Flaxman filed a brief for the Lewisburg Prison Project as amicus curiae urging affirmance. Me. Justice Stevens delivered the opinion of the Court. Three prisoners have alleged that a postsentencing change in the policies of the United States Parole Commission has prolonged their actual imprisonment beyond the period intended by the sentencing judge. The question presented is whether this type of allegation will support a collateral attack on the original sentence under 28 U. S. C. § 2255. We hold that it will not. I With respect to the legal issue presented, the claims before us are identical. To bring this issue into sharp focus, we accept for purposes of decision Addonizio’s view of the facts and the relevant aspects of the Parole Commission’s practices. After his conviction in the United States District Court for the District of New Jersey, on September 22, 1970, Addonizio was sentenced to 10 years’ imprisonment and a fine of $25,000. Factors which led the-District Judge to impose that sentence included the serious character of Addonizio’s offenses, and the judge’s expectation that exemplary institutional behavior would lead to Addonizio’s release when he became eligible for parole after serving one-third of his sentence. The judge did not contemplate that the Parole Corn-mission might rely on the seriousness of the offense as a reason for refusing a parole which Addonizio would otherwise receive. In 1973, the Parole Commission markedly changed its policies. Under its new practices the gravity of the offense became a significant factor in determining whether a prisoner should be granted parole. Addonizio became eligible for parole on July 3, 1975. After hearings, the Parole Commission twice refused to release him, expressly basing its refusal on the serious character of his crimes. Thereafter, Addonizio invoked the District Court’s jurisdiction under 28 U. S. C. § 2255 and moved for resentencing. Following the Third Circuit’s decision in United States v. Salerno, 538 F. 2d 1005, 1007 (1976), the District Court accepted jurisdiction, found that the Parole Commission had not given Addonizio the kind of “meaningful parole hearing” that the judge had anticipated when sentence was imposed, and reduced his sentence to the time already served. The judge stated that he had “anticipated — assuming an appropriate institutional adjustment and good behavior while confined — that [Addonizio] would be actually confined for a period of approximately three and one-half to four years of the ten-year sentence.” This “sentencing expectation” was frustrated by the Parole Commission’s subsequent adoption of new standards and procedures. The Court of Appeals affirmed. 573 F. 2d 147. Because of a conflict with the decision of the Ninth Circuit holding that § 2255 does not give district courts this type of resentenc-ing authority, we granted the Government’s petition for cer-tiorari in Addonizio’s case and in the consolidated case of two other prisoners in which similar relief was granted. 439 U. S. 1045. II We decide only the jurisdictional issue. We do not consider the Government’s alternative argument that the significance of the changes in the Parole Commission’s procedures has been exaggerated because it always attached some weight to the character of the offense in processing parole applications. Nor do we have any occasion to consider whether the new guidelines are consistent with the Parole Commission and Reorganization Act of 1976, 90 Stat. 219; or whether their enforcement may violate the Ex Post Facto Clause of the Constitution. III When Congress enacted § 2255 in 1948, it simplified the procedure for making a collateral attack on a final judgment entered in a federal criminal case, but it did not purport to modify the basic distinction between direct review and collateral review. It has, of course, long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment. The reasons for narrowly limiting the grounds for collateral attack on final judgments are well known and basic to our adversary system of justice. The question in this case is whether an error has occurred that is sufficiently fundamental to come within those narrow limits. Under § 2255, the sentencing court is authorized to discharge or resentence a defendant if it concludes that it “was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” This statute was intended to alleviate the burden of habeas corpus petitions filed by federal prisoners in the district of confinement, by providing an equally broad remedy in the more convenient jurisdiction of the sentencing court. United States v. Hayman, 342 U. S. 205, 216-217. While the remedy is in this sense comprehensive, it does not encompass all claimed errors in conviction and sentencing. Habeas corpus has long been available to attack convictions and sentences entered by a court without jurisdiction. See, e. g., Ex parte Watkins, 3 Pet. 193, 202-203 (Marshall, C. J.). In later years, the availability of the writ was expanded to encompass claims of constitutional error as well. See Waley v. Johnston, 316 U. S. 101, 104—105; Brown v. Allen, 344 U. S. 443. But unless the claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack has remained far more limited. Stone v. Powell, 428 U. S. 465, 477 n. 10. The Court has held that an error of law does not provide a basis for collateral attack unless the claimed error constituted “a fundamental defect which inherently results in a complete miscarriage of justice.” Hill v. United States, 368 U. S. 424, 428. Similar limitations apply with respect to claimed errors of fact. The justification for raising such errors in a § 2255 proceeding, as amicus here points out, is that traditionally they could have been raised by a petition for a writ of coram nobis, and thus fall within § 2255’s provision for vacating sentences that are “otherwise subject to collateral attack.” But coram nobis jurisdiction has never encompassed all errors of fact; instead, it was of a limited scope, existing “in those cases where the errors were of the most fundamental character, that is, such as rendered the proceeding itself irregular and invalid.” United States v. Mayer, 235 U. S. 55, 69. Thus, the writ of coram nobis was “available to bring before the court that pronounced the judgment errors in matters of fact which had not been put in issue or passed upon and were material to the validity and regularity of the legal proceeding itself; as where the defendant, being under age, appeared by attorney, or the plaintiff or defendant was a married woman at the time of commencing the suit, or died before verdict or interlocutory judgment.” Id., at 68. The claimed error here — that the judge was incorrect in his assumptions about the future course of parole proceedings — does not meet any of the established standards of collateral attack. There is no claim of a constitutional violation; the sentence imposed was within the statutory limits; and the proceeding was not infected with any error of fact or law of the “fundamental” character that renders the entire proceeding irregular and invalid. The absence of any error of this nature or magnitude distinguishes Addonizio’s claim from those in prior cases, upon which he relies, in which collateral attacks were permitted. Davis v. United States, 417 U. S. 333, for example, like this case, involved a claim that a judgment that was lawful when it was entered should be set aside because of a later development. The subsequent development in that case, however, was a change in the substantive law that established that the conduct for which petitioner had been convicted and. sentenced was lawful. To have refused to vacate his sentence would surely have been a “complete miscarriage of justice,” since the conviction and sentence were no longer lawful. The change in Parole Commission policies involved in this case is not of the same character: this change affected the way in which the court’s judgment and sentence would be performed but it did not affect the lawfulness of the judgment itself— then or now. Nor is United States v. Tucker, 404 U. S. 443, analogous to the present case. In that case, the Court ordered resentencing of a defendant whose original sentence had been imposed at least in part upon the basis of convictions secured without the assistance of counsel. But the error underlying the sentence in Tucker, as the Court emphasized, was “misinformation of constitutional magnitude.” Id., at 447. We have held that the constitutional right to the assistance of counsel is itself violated when uncounseled convictions serve as the basis for enhanced punishment. Burgett v. Texas, 389 U. S. 109, 115. Whether or not the Parole Commission action in this case was constitutional, a question not presented here, there is no claim that the action taken by the sentencing judge was unconstitutional, or was based on “misinformation of constitutional magnitude.” Our prior decisions, then, provide no support for Addonizio’s claim that he is entitled to relief under § 2255. According to all of the objective criteria — federal jurisdiction, the Constitution, and federal law — the sentence was and is a lawful one. And in our judgment, there is no basis for enlarging the grounds for collateral attack to include claims based not on any objectively ascertainable error but on the frustration of the subjective intent of the sentencing judge. As a practical matter, the subjective intent of the sentencing judge would provide a questionable basis for testing the validity of his j udgment. The record made when Judge Barlow pronounced sentence against Addonizio, for example, is entirely consistent with the view that the judge then thought that this was an exceptional case in which the severity of Addonizio’s offense should and would be considered carefully by the Parole Commission when Addonizio became eligible for parole. If the record is ambiguous, and if a § 2255 motion is not filed until years later, it will often be difficult to reconstruct with any certainty the subjective intent of the judge at the time of sentencing. Regular attempts to do so may well increase the risk of inconsistent treatment of defendants; on the other hand, the implementation of the Parole Commission’s policies may reduce that risk. Nothing in the statutory scheme directs sentencing courts to engage in this task on collateral attack; quite to the contrary, the proposed system of sentencing review would be inconsistent with that established by Congress. The decision as to when a lawfully sentenced defendant shall actually be released has been committed by Congress, with certain limitations, to the discretion of the Parole Commission. Whether wisely or not, Congress has decided that the Commission is in the best position to determine when release is appropriate, and in doing so, to moderate the disparities in the sentencing practices of individual judges. The authority of sentencing judges to select precise release dates is, by contrast, narrowly limited: the judge may select an early parole eligibility date, but that guarantees only that the defendant will be considered at that time by the Parole Commission. And once a sentence has been imposed, the trial judge’s authority to modify it is also circumscribed. Federal Rule Crim. Proc. 35 now authorizes district courts to reduce a sentence within 120 days after it is imposed or after it has been affirmed on appeal. The time period, however, is jurisdictional and may not be extended. The import of this statutory scheme is clear: the judge has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term. The judge may well have expectations as to when release is likely. But the actual decision is not his to make, either at the time of sentencing or later if his expectations are not met. To require the Parole Commission to act in accordance with judicial expectations, and to use collateral attack as a mechanism for ensuring that these expectations are carried out, would substantially undermine the congressional decision to entrust release determinations to the Commission and not the courts. Nothing in § 2255 supports — let alone mandates — such a frustration of congressional intent. Accordingly, without reaching any question as to the validity of the Parole Commission’s actions, either in promulgating its new guidelines or in denying Addonizio’s applications for parole, we hold that subsequent actions taken by the Parole Commission — whether or not such actions accord with a trial judge’s expectations at the time of sentencing — do not retroactively affect the validity of the final judgment itself. The facts alleged by the prisoners in these cases do not provide a basis for a collateral attack on their respective sentences pursuant to § 2255. The judgments of the Court of Appeals are therefore reversed. It is so ordered. Me. Justice Brennan took no part in the decision of this case. Mr. Justice Powell took no part in the consideration or decision of this case. Title 28 U. S. C. §2255 provides: “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or ís otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. “If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” At the time he imposed sentence, Judge Barlow stated: “Weighed against these virtues, [Mr. Addonizio’s record of public service] ... is his conviction by a jury in this court of crimes of monumental proportion, the enormity of which can scarcely be exaggerated and the commission of which create the gravest implications for our form of government. “Mr. Addonizio, and the other defendants here, have been convicted of one count of conspiring to extort and 63 substantive counts of extorting hundreds of thousands of dollars from persons doing business with the City of Newark. An intricate conspiracy of this magnitude, I suggest to you, Mr. Hellring [defense counsel], could have never succeeded without the then-Mayor Addonizio’s approval and participation. “These were no ordinary criminal acts. . . . These crimes for which Mr. Addonizio and the other defendants have been convicted represent a pattern of continuous, highly-organized, systematic criminal extortion over a period of many years, claiming many victims and touching many more lives. “Instances of corruption on the part of elected and appointed governmental officials are certainly not novel to the law, but the corruption disclosed here, it seems to the Court, is compounded by the frightening alliance of criminal elements and public officials, and it is this very kind of totally destructive conspiracy that was conceived, organized and executed by these defendants. “. . . It is impossible to estimate the impact upon — and the cost of — these criminal acts to the decent citizens of Newark, and, indeed, to the citizens of the State of New Jersey, in terms of their frustration, despair and disillusionment. “Their crimes, in the judgment of this Court, tear at the very heart of our civilized form of government and of our society. The people will not tolerate such conduct at any level of government, and those who use their public office to betray the public trust in this manner can expect from the courts only the gravest consequences. “It is, accordingly, the sentence of this Court that the defendant Hugh J. Addonizio shall be committed to the custody of the Attorney General of the United States for a term of ten years, and that, additionally, the defendant Hugh J. Addonizio shall pay a fine of $25,000. That is all.” 573 F. 2d 147, 154. In his opinion granting Addonizio relief under §2255 in 1977, Judge Barlow stated: “At the time sentence was imposed, this Court expected that petitioner would receive a meaningful parole hearing — that is, a determination based on his institutional record and the likelihood of recidivism — upon the completion of one-third (%) of his sentence. The Court anticipated — assuming an appropriate institutional adjustment and good behavior while confined — that petitioner would be actually confined for a period of approximately three and one-half to four years of'the ten-year sentence, in view of the fact that he was a first-offender and that there appeared to be little probability of recidivism, given the circumstances of the case and his personal and social history. This sentencing expectation was based on the Court’s understanding — which was consistent with generally-held notions — of the operation of the parole system in 1970.” App. to Pet. for Cert. 28a-29a (footnotes omitted). The Commission commenced using guidelines on a trial basis in 1972 and started to apply them throughout the Nation in November 1973. See 38 Fed. Reg. 31942 (1973). The Commission’s present guidelines are codified at 28 CFR §2.20 (1978). The use of guidelines is now required by statute. See 18II. S. C. §§ 4203 (a) (1) and 4206 (a). As Judge Aldisert noted in his opinion for the Third Circuit, the comments made by the Parole Commission on January 13, 1977, explaining its denial of parole are remarkably similar to the reasons given by the trial judge at the time sentence was imposed. The Commission stated: “Your offense behavior has been rated as very high severity. Your salient factor score is 11. You have been in custody a total of 57 months at time of hearing. Guidelines established by the Commission for adult cases which consider the above factors suggest a range of 26-36 months to be served before release for cases with good institutional adjustment. After careful consideration of all relevant factors and information presented, a decision above the guidelines appears warranted because your offense was part of an ongoing criminal conspiracy lasting from 1965 to 1968, which consisted of many separate offenses committed by you and approximately 14 other co-conspirators. As the highest elected official in the City of Newark, you were convicted of an extortion conspiracy in which, under color of your official authority, you and your co-conspirators conspired to delay, impede, obstruct, and otherwise thwart construction in the City of Newark in order to obtain a percentage of contracts for the privilege of working on city construction projects. “Because of the magnitude of this crime (money extorted totalling approximately $241,000) its economic effect on innocent citizens of Newark, and because the offense involved a serious breach of public trust over a substantial period of time, a decision above the guidelines is warranted. Parole at this time would depreciate the seriousness of the offense and promote disrespect for the law.” 573 F. 2d, at 153-154. Bonanno v. United States, 571 F. 2d 588 (CA9 1978), cert. dismissed, 439 U. S. 1136. United States v. Whelan & Flaherty. In that case, two federal prisoners filed motions under 28 U. S. C. §§ 2241 and 2255 challenging their confinement. The § 2241 motion was denied by the District Court; the Court of Appeals affirmed, 573 F. 2d 147, and the prisoners did not seek further review. In the § 2255 motion, which is at issue here, these respondents claimed that the Parole Commission’s action frustrated the intent of Judge Shaw, who had originally sentenced them and who had since died. The case was assigned to Judge Biunno, who took the position that “the real issue is whether the Parole Commission’s denial of parole was arbitrary and capricious,” 427 F. Supp. 379, 381, and concluded that it was not. The Court of Appeals vacated that decision and directed Judge Biunno to reconsider the case to determine whether Judge Shaw’s sentencing intent had been frustrated. Proceedings on remand have resulted in the release of both respondents. See Geraghty v. United States Parole Comm’n, 579 F. 2d 238 (CA3 1978), cert. granted, 440 U. S. 945 (1979). See Rodriguez v. United States Parole Comm’n, 594 F. 2d 170 (CA7 1979). See Adams v. United States ex rel. McCann, 317 U. S. 269, 274 (“Of course the writ of habeas corpus should not do service for an appeal. . . . This rule must be strictly observed if orderly appellate procedure is to be maintained”); Sunal v. Large, 332 U. S. 174, 181-182; Hill v. United States, 368 U. S. 424. Inroads on the concept of finality tend to undermine confidence in the integrity of our procedures. See, e. g., F. James, Civil Procedure 517— 518 (1965). Moreover, increased volume of judicial work associated with the processing of collateral attacks inevitably impairs and delays the orderly administration of justice. Because there is no limit on the time when a collateral attack may be made, evidentiary hearings are often inconclusive and retrials may be impossible if the attack is successful. See Stone v. Powell, 428 U. S. 465, 491 n. 31; Henderson v. Kibbe, 431 U. S. 145, 154 n. 13. See Brief for Lewisburg Prison Project as Amicus Curiae 10-12. A federal prisoner is entitled to release at the expiration of his maximum sentence less “good time” computed according to 18 U. S. C. §4161. In addition, any prisoner sentenced to more than 5 years’ imprisonment is entitled to be released on parole after serving two-thirds of each consecutive term or 30 years, whichever is first, unless the Commission determines that the prisoner “has seriously or frequently violated institution rules” or that there is a reasonable probability that he would commit further crimes. 18 U. S. C. §4206 (d). The Commission has substantial discretion to determine whether a prisoner should be released on parole, once he is eligible, prior to the point where release is mandated by statute. Title 18 U. S. C. § 4203 (1970 ed.), in effect when Addonizio was sentenced, provided: “If it appears to the Board . . . that there is a reasonable probability that such prisoner wifi live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole.” Under the statute now in effect, 18 U. S. C. § 4206, the Commission is to consider the risk of recidivism and whether “release would . . . depreciate the seriousness of [the] offense or promote disrespect for the law.” See generally S. Conf. Rep. No. 94^648, p. 19 (1976). The trial court may set a defendant’s eligibility for parole at any point up to one-third of the maximum sentence imposed, see 18 U. S. C. §§4205 (a), (b); 18 U. S. C. §§4202, 4208 (1970 ed.). Whether the defendant will actually be paroled at that time is the decision of the Parole Commission. See United States v. Grayson, 438 U. S. 41, 47 (“[T]he extent of a federal prisoner’s confinement is initially determined by the sentencing judge, who selects a term within an often broad, congressionally prescribed range; release on parole is then available on review by the United States Parole Commission, which, as a general rule, may conditionally release a prisoner any time after he serves one-third of the judicially-fixed term”). The trial judge is precluded from effectively usurping that function by splitting a lengthy sentence between a stated period of probation and imprisonment: probation may not be combined with a sentence entailing incarceration of more than six months. 18 U. S. C. §3651. Prior to the adoption of Rule 35, the trial courts had no such authority. “The beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it.” United States v. Murray, 275 U. S. 347, 358. This rule was applied even though the change related only to the second of a pair of consecutive sentences which itself was not being served at the time. Affronti v. United States, 350 U. S. 79. See Fed. Rule Crim. Proc. 45 (b); United States v. Robinson, 361 U. S. 220. Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:

songer_casetyp1_7-3-4

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - bankruptcy, antitrust, securities". MARWILL TRADING CORPORATION, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 154. Circuit Court of Appeals, Second Circuit. Feb. 20, 1939. Wilton H. Wallace and Joseph C. McGarraghy, both of Washington, D. C. (Colladay, McGarraghy, Colladay & Wallace, of Washington, D. C., of counsel), for petitioner. James W. Morris, Asst. Atty. Gen., and Sewall Key and Lloward P. Locke, Sp. Assts. to Atty. Gen., both of Washington, D. C., for respondent. Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges. PER CURIAM. Order affirmed. 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:

sc_respondent

066

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. UNITED STATES v. BASS No. 70-71. Argued October 18, 1971 Decided December 20, 1971 Roger A. Pauley argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Samuel Huntington, and Beatrice Rosenberg. William E. Hellerstein, by appointment of the Court, 402 U. S. 927, argued the cause for respondent. With him on the brief was Phylis Skloot Bamberger. Mr. Justice Marshall delivered the opinion of the Court. Respondent. was convicted in the Southern District of New York of possessing firearms in violation of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. App. § 1202 (a). In pertinent part, that statute reads: “Any person who— “(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony . . . and who receives, possesses, or transports in commerce or affecting commerce . . . any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.” The evidence showed that respondent, who had previously been convicted of a felony in New York State, possessed on separate occasions a pistol and then a shotgun. There was no allegation in the indictment and no attempt by the prosecution to show that either firearm had been possessed “in commerce or affecting commerce.” The Government proceeded on the assumption that § 1202 (a)(1) banned all possessions and receipts of firearms by convicted felons, and that no connection with interstate commerce had to be demonstrated in individual cases. After his conviction, respondent unsuccessfully moved for arrest of judgment on two primary grounds: that the statute did not reach possession of a firearm not shown to have been “in commerce or affecting commerce,” and that, if it did, Congress had overstepped its constitutional powers under the Commerce Clause. 308 F. Supp. 1385. The Court of Appeals reversed the conviction, being of the view that if the Government’s construction of the statute were accepted, there would be substantial doubt about the statute’s constitutionality. 434 F. 2d 1296. We granted certiorari to resolve a conflict among lower courts over the proper reach of the statute. We affirm the judgment of the court below, but for substantially different reasons. We conclude that § 1202 is ambiguous in the critical respect. Because its sanctions are criminal and because, under the Government’s broader reading, the statute would mark a major inroad into a domain traditionally left to the States, we refuse to adopt the broad reading in the absence of a clearer direction from Congress. I Not wishing “to give point to the quip that only when legislative history is doubtful do you go to the statute,” we begin by looking to the text itself. The critical textual question is whether the statutory phrase “in commerce or affecting commerce” applies to “possesses” and “receives” as well as to “transports.” If it does, then the Government must prove as an essential element of the offense that a possession, receipt, or transportation was “in commerce or affecting commerce” — a burden not undertaken in this prosecution for possession. While the statute does not read well under either view, "the natural construction of the language" suggests that the clause "in commerce or affecting commerce" qualifies all three antecedents in the list. Porto Rico Railway, Light & Power Co. v. Mor, 253 U. S. 345, 348 (1920). Since "in commerce or affecting commerce" undeniably applies to at least one antecedent, and since it makes sense with all three, the more plausible construction here is that it in fact applies to all three. But although this is a beginning, the argument is certainly neither overwhelming nor decisive. In a more significant respect, however, the language of the statute does provide support for respondent’s reading. Undeniably, the phrase “in commerce or affecting commerce” is part of the “transports” offense. But if that phrase applies only to “transports,” the statute would have a curious reach. While permitting transportation of a firearm unless it is transported “in commerce or affecting commerce,” the statute would prohibit all possessions of firearms, and both interstate and intrastate receipts. Since virtually all transportations, whether interstate or intrastate, involve an accompanying possession or receipt, it is odd indeed to argue that on the one hand the statute reaches all possessions and receipts, and on the other hand outlaws only interstate transportations. Even assuming that a person can “transport” a firearm under the statute without possessing or receiving it, there is no reason consistent with any discernible purpose of the statute to apply an interstate commerce requirement to the “transports” offense alone. In short, the Government has no convincing explanation for the inclusion of the clause “in commerce or affecting commerce” if that phrase only applies to the word “transports.” It is far more likely that the phrase was meant to apply to “possesses” and “receives” as well as “transports.” As the court below noted, the inclusion of such a phrase “mirror [s] the approach to federal criminal jurisdiction reflected in many other federal statutes.” Nevertheless, the Government argues that its reading is to be preferred because the defendant’s narrower interpretation would make Title YII redundant with Title IV of the same Act. Title IV, inter alia, makes it a crime for four categories of people — including those convicted of a crime punishable for a term exceeding one year — “to ship or transport any firearm or ammunition in interstate or foreign commerce . . . [or] to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U. S. C. §§ 922 (g) and (h). As Senator Long, the sponsor of Title VII, represented to Senator Dodd, the sponsor of Title IV, Title VII indeed does complement Title IV. 114 Cong. Rec. 14774; see also 114 Cong. Rec. 16286. Respondent’s reading of Title VII is fully consistent with this view. First, although subsections of the two Titles do address their prohibitions to some of the same people, each statute also reaches substantial groups of people not reached by the other. Secondly, Title VII complements Title IV by punishing a broader class of behavior. Even under respondent’s view, a Title VII offense is made out if the firearm was possessed or received “in commerce or affecting commerce”; however, Title IV apparently does not reach possessions or intrastate transactions at all, even those with an interstate commerce nexus, but is limited to the sending or receiving of firearms as part of an interstate transportation. In addition, whatever reading is adopted, Title VII and Title IV are, in part, redundant. The interstate commerce requirement in Title VII minimally applies to transportation. Since Title IV also prohibits convicted criminals from transporting firearms in interstate commerce, the two Titles overlap under both readings. The Government’s broader reading of Title VII does not eliminate the redundancy, but simply creates a larger area in which there is no overlap. While the Government would be on stronger ground if its reading were necessary to give Title VII some unique and independent thrust, this is not the case here. In any event, circumstances surrounding the passage of Title VII make plain that Title VII was not carefully molded to complement Title IV. Title VII was a last-minute Senate amendment to the Omnibus Crime Control and Safe Streets Act. The Amendment was hastily passed, with little discussion, no hearings, and no report. The notion that it was enacted to dovetail neatly with Title IV rests perhaps on a conception of the model legislative process; but we cannot pretend that all statutes are model statutes. While courts should interpret a statute with an eye to the surrounding statutory landscape and an ear for harmonizing potentially discordant provisions, these guiding principles are not substitutes for congressional lawmaking. In our view, no conclusion can be drawn from Title IV concerning the correct interpretation of Title VII. Other aspects of the meager legislative history, however, do provide some significant support for the Government’s interpretation. On the Senate floor, Senator Long, who introduced § 1202, described various evils that prompted his statute. These evils included assassinations of public figures and threats to the operation of businesses significant enough in the aggregate to affect commerce. Such evils, we note, would be most thoroughly mitigated by forbidding every possession of any firearm by specified classes of especially risky people, regardless of whether the gun was possessed, received, or transported “in commerce or affecting commerce.” In addition, specific remarks of the Senator can be read to state that the amendment reaches the mere possession of guns without any showing of an interstate commerce nexus. But Senator Long never specifically says that no connection with commerce need be shown in the individual case. And nothing in his statements explains why, if an interstate commerce nexus is irrelevant in individual cases, the phrase “in commerce or affecting commerce” is in the statute at all. But even if Senator Long’s remarks were crystal clear to us, they were apparently not crystal clear to his congressional colleagues. Meager as the discussion of Title VII was, one of the few Congressmen who discussed the amendment summarized Title VII as “mak[ing] it a Federal crime to take, possess, or receive a firearm across State lines . . . 114 Cong. Rec. 16298 (statement of Rep. Pollock). In short, “the legislative history of [the] Act hardly speaks with that clarity of purpose which Congress supposedly furnishes courts in order to enable them to enforce its true will.” Universal Camera Corp. v. NLRB, 340 U. S. 474, 483 (1951). Here, as in other cases, the various remarks by legislators “are sufficiently ambiguous insofar as this narrow issue is concerned ... to invite mutually destructive dialectic,” and not much more. FCC v. Columbia Broadcasting System, 311 U. S. 132, 136 (1940). Taken together, the statutory materials are inconclusive on the central issue of whether or not the statutory phrase “in commerce or affecting commerce” applies to “possesses” and “receives” as well as “transports.” While standing alone, the legislative history might tip in the Government’s favor, the respondent explains far better the presence of critical language in the statute. The Government concedes that “the statute is not a model of logic or clarity.” Pet. for Cert. 5. After “seiz[ing] every thing from which aid can be derived,” United States v. Fisher, 2 Cranch 358, 386 (1805) (Marshall, C. J.), we are left with an ambiguous statute. II Given this ambiguity, we adopt the narrower reading: the phrase “in commerce or affecting commerce” is part of all three offenses, and the present conviction must be set aside because the Government has failed to show the requisite nexus with interstate commerce. This result is dictated by two wise principles this Court has long followed. First, as we have recently reaffirmed, “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Rewis v. United States, 401 U. S. 808, 812 (1971). See also Ladner v. United States, 358 U. S. 169, 177 (1958); Bell v. United States, 349 U. S. 81 (1955); United States v. Five Gambling Devices, 346 U. S. 441 (1953) (plurality opinion for affirmance). In various ways over the years, we have stated that "when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." United States v. Universal C. I. T. Credit Corp., 344 U. S. 218, 221-222 (1952). This principle is founded on two policies that have long been part of our tradition. First, "a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear." McBoyle v. United States, 283 U. S. 25, 27 (1931) (Holmes, J.). See also United States v. Cardiff, 344 U. S. 174 (1952). Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies "the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should." H. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967). Thus, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant. Here, we conclude that Congress has not "plainly and unmistakably," United States v. Gradwell, 243 U. S. 476, 485 (1917), made it a federal crime for a convicted felon simply to possess a gun absent some demonstrated nexus with interstate commerce. There is a second principle supporting today’s result: unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance. Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States. This congressional policy is rooted in the same concepts of American federalism that have provided the basis for judge-made doctrines. See, e. g., Younger v. Harris, 401 U. S. 37 (1971). As this Court emphasized only last Term in Rewis v. United States, supra, we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction. In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision. In Rewis, we declined to accept an expansive interpretation of the Travel Act. To do so, we said then, “would alter sensitive federal-state relationships [and] could overextend limited federal police resources.” While we noted there that “[i]t is not for us to weigh the merits of these factors,” we went on to conclude that “the fact that they are not even discussed in the legislative history . . . strongly suggests that Congress did not intend that [the statute have the broad reach].” 401 U. S., at 812. In the instant case, the broad construction urged by the Government renders traditionally local criminal conduct a matter for federal enforcement and would also involve a substantial extension of federal police resources. Absent proof of some interstate commerce nexus in each case, § 1202 (a) dramatically intrudes upon traditional state criminal jurisdiction. As in Rewis, the legislative history provides scanty basis for concluding that Congress faced these serious questions and meant to affect the federal-state balance in the way now claimed by the Government. Absent a clearer statement of intention from Congress than is present here, we do not interpret § 1202 (a) to reach the “mere possession” of firearms. III Having concluded that the commerce requirement in § 1202 (a) must be read as part of the “possesses” and “receives” offenses, we add a final word about the nexus with interstate commerce that must be shown in individual cases. The Government can obviously meet its burden in a variety of ways. We note only some of these. For example, a person “possesses ... in commerce or affecting commerce” if at the time of the offense the gun was moving interstate or on an interstate facility, or if the possession affects commerce. Significantly broader in reach, however, is the offense of “receiv[ing] ... in commerce or affecting commerce,” for we conclude that the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce. This is not the narrowest possible reading of the statute, but canons of clear statement and strict construction do “not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature.” United States v. Bramblett, 348 U. S. 503, 510 (1955). We have resolved the basic uncertainty about the statute in favor of the narrow reading, concluding that “in commerce or affecting commerce” is part of the offense of possessing or receiving a firearm. But, given the evils that prompted the statute and the basic legislative purpose of restricting the firearm-related activity of convicted felons, the readings we give to the commerce requirement, although not all narrow, are appropriate. And consistent with our regard for the sensitive relation between federal and state criminal jurisdiction, our reading preserves as an element of all the offenses a requirement suited to federal criminal jurisdiction aione. The judgment is Affirmed. Mr. Justice Brennan joins the judgment of the Court and the opinion except for Part III. No question of the quantum of evidence necessary to establish the Government’s prima facie case is before the Court and he would await a case properly presenting that question before deciding it. Section 1202 (a) reads in full: “Any person who— “(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or “(2) has been discharged from the Armed Forces under dishonorable conditions, or “(3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or “(4) having been a citizen of the United States has renounced his citizenship, or “(5) being an alien is illegally or unlawfully in the United States, and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.” Respondent was acquitted on another count charging him with carrying a firearm during the commission of a felony (the sale of a narcotic drug), a federal offense under 18 U. S. C. §924 (c)(2). At this date, six circuits and numerous district courts have decided the issue. The Government’s view was adopted in United States v. Cabbler, 429 F. 2d 577 (CA4 1970), cert. denied, 400 U. S. 901; United States v. Donofrio, 450 F. 2d 1054 (CA5 1971); Stevens v. United States, 440 F. 2d 144 (CA6 1971) (one judge dissenting); United States v. Synnes, 438 F. 2d 764 (CA8 1971); United States v. Daniels, 431 F. 2d 697 (CA9 1970). The result reached by the Second Circuit in this case has also been reached in United States v. Harbin, 313 F. Supp. 50 (ND Ind. 1970); United States v. Steed, No. CR 70-57 (WD Tenn., May 11, 1970); United States v. Phelps, No. CR 14,465 (MD Tenn., Feb. 10, 1970); United States v. Francis, No. CR 12,684 (ED Tenn., Dec. 12, 1969). In light of our disposition of the case, we do not reach the question whether, upon appropriate findings, Congress can constitutionally punish the “mere possession” of firearms; thus, we need not consider the relevance, in that connection, of our recent decision in Perez v. United States, 402 U. S. 146 (1971). The question whether the definition of “felony” in § 1202 (c) (2) creates a classification violating the Fifth Amendment was not raised in the Government’s Petition for Certiorari, and is also not considered here. Frankfurter, Some Reflections on the Reading of Statutes, 47 Col. L. Rev. 527, 543 (1947). Compare United States v. Standard Brewery, Inc., 251 U. S. 210, 218 (1920), with FTC v. Mandel Brothers, Inc., 359 U. S. 385, 389-390 (1959); see also 2 J. Sutherland, Statutory Construction §4921 (3d ed. 1943); K. Llewellyn, The Common Law Tradition 527 (1960). The Government, noting that there is no comma after “transports,” argues that the punctuation indicates a congressional intent to limit the qualifying phrase to the last antecedent. But many leading grammarians, while sometimes noting that commas at the end of series can avoid ambiguity, concede that use of such commas is discretionary. See, e. g., B. Evans & C. Evans, A Dictionary of Contemporary American Usage 103 (1957); M. Nicholson, A Dictionary of American-English Usage 94 (1957); R. Copperud, A Dictionary of Usage and Style 94-95 (1964); cf. W. Strunk & E. White, The Elements of Style 1-2 (1959). When grammarians are divided, and surely where they are cheerfully tolerant, we will not attach significance to an omitted comma. It is enough to say that the statute’s punctuation is fully consistent with the respondent’s interpretation, and that in this case grammatical expertise will not help to clarify the statute’s meaning. The Government urges that “transports” includes the act of “causing a firearm to be transported,” and therefore would- connote an offense separate in some cases from “receives” or “possesses.” From this, the Government argues that “Congress might have felt that the broader scope of the term ‘transports/ as compared to the terms ‘receives’ or ‘possesses/ justified its qualification by the interstate commerce requirement.” Brief for the United States 14 — 15. The Government’s view about the comparative breadth of the various offenses certainly does not follow from its definition of “transports.” But beyond that, its argument about what Congress “might have felt” is purely speculative, and finds no support in any arguable purpose of the statute. There is certainly no basis for concluding that Congress was less concerned about the transporting and supplying of guns than their acquisition. 434 F. 2d, at 1298. See, e. g., 18 U. S. C. § 2421 (prostitution); 18 U. S. C. § 1952 (Travel Act); 18 U. S. C. § 1951 (robbery and extortion); 18 U. S. C. § 1231 (strikebreaking); 18 U. S. C. § 1201 (kidnaping); 18 U. S. C. § 1084 (gambling); 18 U. S. C. § 842 (i) (explosives); 15 U. S. C. § 1 et seq. (antitrust); 15 U. S. C. § 77e (securities fraud). Title VII limits the firearm-related activity of convicted felons, dishonorable dischargees from the Armed Services, persons adjudged “mentally incompetent,” aliens illegally in the country, and former citizens who have renounced their citizenship. See n. 1, supra. A felony is defined as “any offense punishable by imprisonment for a term exceeding one year, but does not include any offense (other than one involving a firearm or explosive) classified as a misdemeanor under the laws of a State and punishable by a term of imprisonment of two years or less 18 U. S. C. App. § 1202 (c)(2). Title IV reaches persons “under indictment for, or . . . convicted in any court of, a crime punishable by imprisonment for a term exceeding one year”; fugitives from justice; users or addicts of various drugs; persons adjudicated as “mental defective[s] or . . . committed” to a mental institution. 18 U. S. C. §§ 922 (g) and (h). Title IV, 18 U. S. C. §§ 922 (g) and (h), is a modified and recodified version of 15 U. S. C. §§902 (e) and (f) (1964 ed.), 75 Stat. 757, which in turn amended the original statute passed in 1938, 52 Stat. 1250, 1251. Each amendment enlarged the group of people coming within the Act’s substantive prohibitions against transportation or receipt of firearms in interstate commerce. The wording of the substantive offense has remained identical, although the original Act had a provision that possession of a firearm “shall be presumptive evidence that such firearm or ammunition was shipped or transported or received [in interstate or foreign commerce].” That presumption was struck down in Tot v. United States, 319 U. S. 463 (1943), and the Court there noted: “[T]he Act is confined to the receipt of firearms or ammunition as a part of interstate transportation and does not extend to the receipt, in an intrastate transaction, of such articles which, at some prior time, have been transported interstate.” Id., at 466. While the reach of Title IV itself is a question to be decided finally some other day, the Government has presented here no learning or other evidence indicating that the 1968 Act changed the prior approach to the “receipt” offense. See, e. g., S. Rep. No. 1097, 90th Cong., 2d Sess., 115 (1968). The Omnibus Crime Control and Safe Streets Act of 1968 started its life as a measure designed to aid state and local governments in law enforcement by means of financial and administrative assistance. See H. R. Rep. No. 488, 90th Cong., 1st Sess. (1967). The bill passed the House on August 8, 1967, and went to the Senate. A similar bill was introduced in the Senate (S. 917) and went to the Committee on the Judiciary, which rewrote it completely. See S. Rep. No. 1097, 90th Cong., 2d Sess., supra. The amendments included the much-debated provisions regarding the admissibility of confessions, wiretapping, and state firearms control. On May 17, 1968, Senator Long introduced on the floor his amendment to S. 917, which he designated Title VII. His introductory remarks set forth the purpose of the amendment. 114 Cong. Rec. 13867-13869. About a week later he explained his amendment once again. There was a brief debate; the reaction was favorable but cautious, with “further thought” and “study” being suggested by several favorably inclined Senators who observed some problems with the bill as drafted. Unexpectedly, however, there was a call for a vote and Title VII passed without modification. See 114 Cong. Rec. 14772-14775. The amendment received only passing mention in the House discussion of the bill, 114 Cong. Rec. 16286, 16298, and never received committee consideration or study in the House either. See 114 Cong. Rec. 13868-13871, 14772-14775. For example, Senator Long began his floor statement by announcing: “I have prepared an amendment which I will offer at an appropriate time, simply setting forth the fact that anybody who has been convicted of a felony [or comes within certain other categories] ... is not permitted to possess a firearm . . . .” 114 Cong. Rec. 13868. For the same, and additional, reasons, § 1201, which contains the congressional “findings” applicable to § 1202 (a), is not decisive support for the Government. That section reports that: “The Congress hereby finds and declares that the receipt, possession, or transportation of a firearm by felons, veterans who are discharged under dishonorable conditions, mental incompetents, aliens who are illegally in the country, and former citizens who have renounced their citizenship, constitutes— “(1) a burden on commerce or threat affecting the free flow of commerce, “(2) a threat to the safety of the President of the United States and Vice President of the United States, “(3) an impediment or a threat to the exercise of free speech and the free exercise of a religion guaranteed by the first amendment to the Constitution of the United States, and “(4) a threat to the continued and effective operation of the Government of the United States and of the government of each State guaranteed by article IV. of the Constitution.” The Government argues that these findings would have been “wholly unnecessary” unless Congress intended to prohibit all receipts and possessions of firearms by felons. But these findings of “burdens” and “threats” simply state Congress’ view of the constitutional basis for its power to act; the findings do not tell us how much of Congress’ perceived power was in fact invoked. That the findings in fact support a statute broader than the one actually passed is suggested by the fact that “in commerce or affecting commerce” does not appear at all in the introductory clause to the “findings,” even though § 1202 (a) contains the phrase and concededly reaches only transportation “in commerce or affecting commerce.” Holmes prefaced his much-quoted statement with the observation that “it is not likely that a criminal will carefully consider the text of the law before he murders or steals . . . .” But in the case of gun acquisition and possession it is not unreasonable to imagine a citizen attempting to “[steer] a careful course between violation of the statute [and lawful conduct],” United States v. Hood, 343 U. S. 148, 151 (1952). Of course, where there is a state law prohibiting felons from possessing firearms, as in New York State, N. Y. Penal Law § 265.05 (Supp. 1971-1972), it may be unreal to argue that there are notice problems under the federal law. There are many States, however, that do not have their own laws prohibiting felons from possessing firearms. See Geisel, Roll, & Wettick, The Effectiveness of State and Local Regulation of Handguns: A Statistical Analysis, 1969 Duke L. J. 647, 652-653. Since ex-offenders in these States are limited only by the federal gun control laws, the notice problem of that law may be quite real. Apex Hosiery Co. v. Leader, 310 U. S. 469, 513 (1940); United States v. Five Gambling Devices, 346 U. S. 441, 449-450 (1953) (plurality opinion); FTC v. Bunte Bros., Inc., 312 U. S. 349, 351, 354-355 (1941); Frankfurter, Some Reflections on the Reading of Statutes, 47 Col. L. Rev. 527, 539-540 (1947). Cf. Auto Workers v. Wisconsin Board, 351 U. S. 266, 274-275 (1956); Palmer v. Massachusetts, 308 U. S. 79, 83-84 (1939); Leiter Minerals, Inc. v. United States, 352 U. S. 220, 225-226 (1957). H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1241 (tent. ed. 1958). This reading preserves a significant difference between the “receipt” offenses under Title IV and Title VII. See supra, at 342-343. Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:

songer_r_natpr

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 "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. Harry LEVEY and Leona Levey, Plaintiffs-Appellees v. FIRST VIRGINIA BANK, Defendant-Appellant, and Arthur Rupley, IV, Defendant. No. 87-1546. United States Court of Appeals, Fourth Circuit. Argued Feb. 3, 1988. Decided April 25, 1988. Robert Louis Deichmeister (Fagelson, Schonberger, Payne & Arthur on brief), for defendant-appellant. Charles M. Rust-Tierney (Philip J. Hirschkop, Bernard J. DiMuro, Hirschkop & Associates on brief), for plaintiffs-appel-lees. Before HALL and ERVIN, Circuit Judges, and BUTZNER, Senior Circuit Judge. ERVIN, Circuit Judge: The Levey’s, judgment creditors of Arthur Rupley, IV, sought to satisfy their judgment by attacking a spendthrift trust set up for Rupley by his grandmother. The district court ruled that the corpus of the trust is protected against Rupley’s creditors; however, the income from the trust is not so protected. The Trustee appeals the decision as it pertains to the income. Finding no error below, we affirm. I. Arthur Rupley, IV, borrowed and refused to pay $50,000.00 from Harry and Leona Levey in 1981. Understandably concerned, the Leveys filed suit and obtained judgment in the Circuit Court of Fairfax County against him for the principal amount owed, consequential damages, interest and attorneys fees. Feeling frustrated in their attempts to find some asset upon which to satisfy their judgment, the Leveys attacked a trust created for Rupley. Rupley is the sole beneficiary of a trust created on April 6, 1979, by Mildred G. Rupley, his grandmother. The Trustee of the trust is First Virginia Bank, appellant herein. The trust agreement contains separate provisions relating to the income generated by the trust and the corpus of the trust. As to the income, Article 3(a) of the agreement provides: “Until grantor’s grandson shall attain 40 years of age, the trust shall pay to or apply for the benefit of Grantor’s grandson in quarterly or more frequent installments, all of the net income arising from said trust.” Jt.App. at 16. Article 3(b) restricts the payment of the principal of the trust as follows: “Until Grantor’s grandson attains the age of 40, the trustee shall pay to or expend for the benefit of Grantor’s grandson so much of the principal hereof as the trustee, in its sole discretion, shall deem necessary for the support, maintenance, general welfare and education of the Grantor’s grandson.” Id. Based on this language, the district court split the income from the corpus, and ruled that the income is vulnerable to creditors. Upon review, we can find no error in this decision. II. Spendthrift trusts are permitted in Virginia under section 55-19 of the Virginia Code. That provision reads in pertinent part: § 55-19. Estates in trust subject to debts of beneficiaries; exception for spendthrift trust. Estates of every kind holden or possessed in trust shall be subject to the debts and charges of the persons to whose use or to whose benefit they are holden or possessed, as they would be if those persons owned the like interest in the things holden or possessed as in the uses of trusts thereof; but any such estate, not exceeding $500,000.00 in actual value may be holden or possessed in trust upon condition that the corpus thereof and income therefrom, or either of them, shall be applied by the trustee to the support and maintenance of the beneficiaries without being subject to their liabilities or the alienation by them, but no such trust shall operate to the prejudice of any existing creditor of the creator of such trust. The statutory language protects the corpus of a spendthrift trust, the income of a trust, or both, from the beneficiaries’ creditors only if the monies of the trust are to be used for the support and maintenance of the beneficiary. Alderman v. Virginia Trust Co., 181 Va. 497, 25 S.E.2d 333, 340 (1943). It is clear from a reading of the trust agreement involved in this case that the income monies are not disbursed only for the support and maintenance of Rupley. Rather, the income is to be paid to him without any exercise of discretion on the part of the bank as Trustee: “[T]he trust shall pay ... all of the net income” to Rupley. In this regard, the cases cited by the bank for the proposition that the trust is protected as a spendthrift trust are distinguishable. Each of the cases cited by the bank holds that for an entire trust to be invulnerable to creditors, both the income and the corpus of the trust can be paid to the beneficiary only for support and maintenance. Alderman, 25 S.E.2d at 342; Sheridan v. Krause, 161 Va. 873, 172 S.E. 508 (1934); Rountree v. Lane, 155 F.2d 471 (4th Cir.1946); and In re Hersch, 57 B.R. 667 (Bkrtcy.E.D.Va.1986). In this case, the income of the trust is unprotected. The bank argues that language apart from that found in Article 3 sections (a) and (b) supplies the missing language that the income is to be used for Rupley’s support and maintenance. The bank refers us to the language found in Article 3(f): “To the full extent allowed by law, any principal or income payable by the trustee under this agreement shall not be pledged, mortgaged, hypothecated, assigned, transferred or sold or in any manner whatsoever accelerated nor shall any principal or income in any manner be subject to or liable in the hands of the trustee for the debts, contracts, obligations, liabilities, or engagements of any beneficiary or be subject to any assignment, or any other voluntary or involuntary alienation or disposition. Jt.App. at 17. This language from Article 3(f) does not evidence an intent by the settlor to make the income payable to Rupley only as his support and maintenance needs require; rather, it speaks to the ability of Rupley to alienate the principal or income from the trust. Under Virginia law, a spendthrift trust has three defining characteristics: First, the trust must provide for the support and maintenance of its beneficiary; second, the settlor must intend to protect the trust from the beneficiary’s creditors; and third, the settlor must intend to prevent the beneficiary’s voluntary or involuntary alienation of trust property. In re Hersch, 57 B.R. at 668-69. Article 3(f) speaks to the third requirement of a spendthrift trust, not the first. As such, we conclude that the income of the trust is not limited to the support and maintenance of Rupley and is therefore unprotected as against creditors like the Leveys. The statute and the case law from Virginia contemplate that either or both the income and the corpus of a trust can be denominated “spendthrift” if all requisite elements are present. In this case the corpus is so protected, the income is not. The district court correctly ruled that the income from the trust is subject to the judgment creditors’ claim. AFFIRMED. . Because we resolve the case favorably toward the Leveys, we need not address their further argument that the Trustee is equitably estopped from denying their claim. Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:

songer_respond1_1_3

F

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the 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. John Michael SMITH, Plaintiff-Appellant, v. MONTGOMERY WARD & CO., Inc., Defendant-Appellee. No. 17545. United States Court of Appeals Sixth Circuit. Jan. 16, 1968. Sol E. Goldberg, Detroit, Mich., for appellant. John L. Vanker, Jr., Detroit, Mich. (Butzel, Eaman, Long, Gust & Kennedy, Detroit, Mich., on the brief), for appellee. Before WEICK, Chief Judge, and PECK and COMBS, Circuit Judges. ORDER COMBS, Circuit Judge. This is an appeal from an order of the District Court granting a motion for summary judgment in favor of the defendant-appellee in a personal injury action. The appellant, John Michael Smith, a former employee of the appellee, Montgomery Ward & Co., Inc., was awarded workmen’s compensation for an injury sustained in the course of his employment in 1958. That injury was, in the words of appellant’s counsel, “a psycho-physiological-musculo-skeletal reaction.” During the compensable period for workmen’s compensation, the appellee company employed private detectives to obtain certain information about the appellant, allegedly for use in a further proceeding in the workmen’s compensation case. An altercation occurred between appellant and one of the detectives. This action for personal injuries was instituted following the altercation. It was alleged in the complaint that the company “knew of plaintiff’s neurotic condition and it was expressly designed as a part of its program of harassment of the plaintiff to provoke the plaintiff to displaying his neurotic tendencies;” also that “as a direct and proximate result of the misconduct of the defendant, its attorneys, agents and employees the previously existing traumatic neurosis was deepened, extended, and aggravated.” Before the personal injury case came to trial, additional proceedings were had in the workmen’s compensation case. In those proceedings counsel for appellant stated in writing that the issue was: “Is plaintiff’s present disability due to the injury of December 3, 1958?” Having stated the question, appellant’s counsel then said, “The answer should be yes.” Judge Talbot Smith, United States District Court for the Eastern District of Michigan, granted summary judgment for the appellee on the ground that appellant’s position in the personal injury case is so clearly inconsistent with his position before the Workmen’s Compensation Commission that the principle of judicial estoppel applies, citing Scarano v. Central R. Co. of New Jersey, 203 F.2d 510 (3rd Cir. 1953), and cases of like import. We agree. Appellant having taken the unequivocal position in the workmen’s compensation proceeding that his present disability is due solely to the 1958 injury, he will not be permitted to assert in this action that his disability is a result of subsequent tortious conduct by the appellee. For the reasons set forth in Judge Smith’s opinion, the judgment is 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_circuit

L

What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. WILLIAMS NATURAL GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Southern California Gas Company, Texaco Inc., ARCO Oil and Gas Co., Pacific Gas and Electric Co., Enserch Exploration, Inc., Exxon Corporation, Texas Eastern Transmission Corp., Intervenors. TEXAS EASTERN TRANSMISSION CORPORATION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, ARCO Oil and Gas Co., Enserch Exploration, Inc., Williams Natural Gas Company, Intervenors. TEXAS GAS TRANSMISSION CORPORATION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Enserch Exploration, Inc., ARCO Oil and Gas Co., Williams Natural Gas Company, Intervenors. Nos. 88-1079, 88-1251 and 88-1264. United States Court of Appeals, District of Columbia Circuit. Argued March 3, 1989. Decided April 7, 1989. Michael E. Small, Washington, D.C., with whom John H. Cary, William Douglas Field, Jr., Owensboro, Ky., and Judy M. Johnson, Houston, Tex., were on the brief, for petitioners in No. 88-1079, et al. Dale A. Wright and James T. McManus, Washington, D.C., also entered appearances for petitioner in No. 88-1079. John S. Carr also entered an appearance for petitioner in No. 88-1251 and for inter-venor Texas Eastern Transmission Corp. in No. 88-1079. Robert W. Perdue, Washington, D.C., also entered an appearance for petitioner in No. 88-1264. Samuel Soopper, Atty., F.E.R.C., with whom Catherine C. Cook, General Counsel, F.E.R.C., and Jerome M. Feit, Atty., F.E. R.C., Washington, D.C., were on the brief, for respondent in No. 88-1079, et al. John Conway also entered an appearance for respondent in Nos. 88-1079, 88-1251 and 88-1264. Carroll L. Gilliam, Kevin M. Sweeney, Catherine E. Bocskor, Washington, D.C., Jack M. Wilhelm, New Orleans, La., Harris S. Wood, Kathleen E. Magruder, Ralph J. Pearson, Jr. and John P. Beall, Houston, Tex., were on the joint brief of intervenors Amoco Production Co., Arco Oil and Gas Co., Div. of Atlantic Richfield Co., Enserch Exploration Inc., as Managing General Partner of EP Operating Co. and Texaco Inc., in support of respondent in No. 88-1079, et al. E.R. Island and David L. Huard, Los Angeles, Cal., entered appearances for in-tervenor Southern California Gas Co. in No. 88-1079. Charles F. Hosmer, Jr., Dallas, Tex., also entered an appearance for intervenor ARCO Oil and Gas Co. in Nos. 88-1079, 88-1251 and 88-1264. J. Paul Douglas, Washington, D.C., also entered an appearance for intervenor ARCO Oil and Gas Co. in No. 88-1079. Joshua Bar-Lev, Steven F. Greenwald and Lindsey How-Downing, San Francisco, Cal., entered appearances for Pacific Gas and Elec. Co. in No. 88-1079. George C. Garikes, Washington, D.C., also entered an appearance for intervenor Enserch Exploration Inc. in Nos. 88-1079, 88-1251 and 88-1264. C. Roger Hoffman and Douglas W. Rasch, Houston, Tex., entered appearances for intervenor Exxon Corp. in No. 88-1079. Judy M. Johnson, Houston, Tex., also entered an appearance for intervenor Texas Eastern Transmission Corp. in No. 88-1079. Dale A. Wright, Michael E. Small, Washington, D.C., and John H. Cary also entered appearances for intervenor Williams Natural Gas Co. in Nos. 88-1251, 88-1264. Maria M. Jackson, Washington, D.C., entered an appearance for intervenor Williams Natural Gas Co. in No. 88-1264. Before WALD, Chief Judge, and WILLIAMS and D.H. GINSBURG, Circuit Judges. Opinion for the Court filed by Chief Judge WALD. WALD, Chief Judge: Petitioners Williams Natural Gas Company, Texas Eastern Transmission Corporation, and Texas Gas Transmission Corporation (collectively “Williams”) seek review of an order of the Federal Energy Regulatory Commission (“FERC” or “the Commission”). That order terminated an ongoing rulemaking; by terminating the docket, FERC maintained an incentive price for certain “tight formation” natural gas regulated under the Natural Gas Policy Act (“NGPA” or “the Act”). Williams contends that the Commission, by failing to complete the rulemaking, has acted arbitrarily and capriciously and in contravention of its statutory obligations. Because we conclude that the agency has failed to justify its termination of the rulemaking, we remand for further consideration by the Commission. I. Facts A. The Natural Gas Policy Act Enacted in 1978, the Natural Gas Policy Act, 15 U.S.C. § 3301 et seq., “comprehensively and dramatically changed the method of pricing natural gas produced in the United States.” Public Service Commission v. Mid-Louisiana Gas Co., 463 U.S. 319, 322, 103 S.Ct. 3024, 3027, 77 L.Ed.2d 668 (1983). The Act defines several categories of natural gas and sets ceiling prices for “first sales” in each category. Congress recognized, however, that the recovery of some gas reserves might not be economically feasible if producers were limited to the maximum prices established by the statute. The Act therefore provided that “[t]he Commission may, by rule or order, prescribe a maximum lawful price, applicable to any first sale of any high-cost natural gas, which exceeds the otherwise applicable maximum lawful price to the extent that such special price is necessary to provide reasonable incentives for the production of such high-cost natural gas.” NGPA § 107(b), 15 U.S.C. § 3317(b). The Act specifically identified four sources from which gas produced would be deemed “high-cost natural gas.” NGPA § 107(c)(l>-(4), 15 U.S.C. § 3317(c)(l)-(4). The statute further provided the Commission with the authority to prescribe incentive prices for any gas “produced under such other conditions as the Commission determines to present extraordinary risks or costs.” NGPA § 107(c)(5), 15 U.S.C. § 3317(c)(5). The ceiling prices established by the statute were not intended to remain in perpetuity. The Act itself provided that maximum prices for the different categories of gas would rise from month to month in compliance with a statutorily-determined formula. Moreover, the maximum prices were intended to be transitional only: most natural gas was deregulated as of January 1, 1985. The NGPA was enacted against a backdrop of growing demand for natural gas and rising prices for energy generally. The Act was intended to ensure producers an adequate return on their investment, and thereby to ensure that sufficient supplies of natural gas would be available. But the Congress which passed the Act quite plainly supposed that the statutory ceiling prices would be lower than those which would obtain in an unregulated market. See FERC v. Martin Exploration Management Co., 486 U.S. 204, 108 S.Ct. 1765, 1769, 100 L.Ed.2d 238 (1988) (“Not one participant in the legislative process suggested that producers should receive higher prices than deregulation would afford them”). That expectation, however, has proved to be inaccurate. Since the passage of the Act, market-clearing prices for natural gas have plummeted, due in large measure to a drop in prices for alternative fuels; by 1984 they were lower than the regulated price ceilings established by the statute. See Martin Exploration, 108 S.Ct. at 1768. If agreements between producers and pipelines were renegotiated on a day-to-day basis, then the drop in natural gas prices would make the price ceilings irrelevant: the parties would presumably base their transactions on the current market-clearing rate, which is presently lower than the ceiling itself. A price ceiling, after all, can be expected to affect prices only if it is lower than the rate which would otherwise be charged. Contracts for the purchase of natural gas are not, however, frequently renegotiated to reflect changing market conditions. These agreements typically span very long periods of time, and the price is often contractually tied to the price ceiling established by the statute or regulations. Thus, the NGPA’s program of price ceilings has become a de facto system of price supports, since many pipelines are obligated by contract to pay a “ceiling” price which is far in excess of the market rate. As the Supreme Court has noted: [T]hese [long-term] contracts had one clause setting the price if the gas were regulated and another clause setting the price if it were deregulated. The contract price for regulated gas was typically close to the price ceiling; the contract price for deregulated gas was typically based on market prices or left open to renegotiation. Because by 1984 the market price of natural gas had plunged below the regulated price ceilings, these producers stood to reap higher contractual prices if their gas was regulated than if it were deregulated. Martin Exploration, 108 S.Ct. at 1768. B. Order No. 99 As noted earlier, NGPA § 107(c)(5) gives the Commission the power to prescribe an incentive price for high-cost natural gas which does not fit within the categories enumerated in § 107(c)(l)-(4). On July 16, 1979, President Carter recommended the establishment of incentives for the production of “tight formation” natural gas. After conducting a rulemaking, the Commission promulgated regulations establishing incentive prices for tight formation gas. Order No. 99 both defined the gas to which the incentive price would apply and established the appropriate ceiling. Not all tight formation gas was made eligible for this special price. Rather, the incentive price is available only if the contract contains a “negotiated contract price,” defined by the regulations as “any price established by a contract provision that specifically references the incentive pricing authority of the Commission under Section 107 of the NGPA, by a contract provision that prescribes a specific fixed rate, or by the operation of a fixed escalator clause.” 18 C.F.R. § 271.702(a)(1). A contract which simply referenced the NGPA without specifically mentioning § 107 would not be sufficient to allow collection of the incentive price. The agency explained “that it must limit the availability of the incentive price ceiling to those contracts which specifically refer to it (or to the extent permitted under a fixed rate or fixed escalator clause) because its pricing authority is limited to setting incentive prices ‘necessary’ to encourage additional production.” F.E. R.C. Stats, and Regs. [Reg. Preambles 1977-1981] at 31,272. Without this requirement, the Commission believed, the incentive price might simply provide a windfall to a producer that had plainly expressed its willingness to sell gas at a lower rate. The presence of a negotiated contract price, on the other hand, was regarded as conclusive evidence that the incentive price was in fact necessary to induce production. The Order did provide that “contracts which do not presently contain a negotiated contract price may be amended to permit collection of the incentive price.” F.E.R.C. Stats, and Regs. [Reg. Preambles 1977-1981] at 31,271. The Commission established this tight formation price pursuant to its authority to prescribe incentive prices for “high-cost” natural gas. In setting the appropriate ceiling, however, the agency did not look solely to the cost of production. Rather, FERC combined a “cost-related” with a “value-related” approach, see F.E.R.C. Stats, and Regs. [Reg. Preambles 1977-1981] at 31,266: the Commission looked both to costs of production and to the price of alternative fuels. The Commission apparently believed that consideration of alternative fuel prices was essential in light of the statutory requirement that incentive prices be “necessary to provide reasonable incentives for the production of such high-cost natural gas.” NGPA § 107(b), 15 U.S. C. § 3317(b) (emphasis supplied). The agency set the price ceiling for tight formation gas at 200 percent of the § 103 price. See F.E.R.C. Stats, and Regs. [Reg. Preambles 1977-1981] at 31,270. Order No. 99 was the subject of a timely challenge and was upheld by the Fifth Circuit. See Pennzoil Co. v. FERC, 671 F.2d 119 (5th Cir.1982). C. The 1983 Notice of Proposed Rule-making On February 10, 1983, FERC issued a Notice of Proposed Rulemaking (“NOPR”), which advocated substantial changes in the incentive price for tight formation gas. See Limitation on Incentive Prices for High-Cost Gas to Commodity Values, Docket No. RM82-32-000, F.E.R.C. Stats, and Regs. [Proposed Regs. 1982-1987] If 32,294. The Commission noted that its experience under the NGPA had belied the premises on which the incentive price had originally rested: In 1980, at the time the Commission sought to maximize incentives for the production of high-cost gas in Order Nos. 99 and 107, it did so against a backdrop of rising oil prices, a stronger economy and relatively little experience with the effects of the NGPA on gas supplies and pricing. In the two years since that period, oil prices have declined in real terms and the economy has stagnated, resulting in substantially decreased demand for gas and all other fuels. At the same time, gas prices have risen steadily, due both to the pricing mechanisms built into the NGPA and the contracting practices of pipelines and producers. Id. at 32,497. The NOPR noted that “the Commission must now consider whether its own decisions in setting incentive ceilings under NGPA section 107(c)(5) are exacerbating the current gas pricing problems.” Id. And the agency expressed the tentative conclusion that a ceiling price in excess of the commodity value of gas, as measured by reference to the prices of competing fuels, is contrary to the public interest. Accordingly, the Commission is proposing to limit the incentive prices for high-cost gas already established by the Commission to ... an imputed commodity value based on the price of alternative fuels. Id. at 32,497-32,498. The NOPR indicated that any regulatory change could apply to all new tight formation gas “the surface drilling of which commenced after the date of publication of this Notice in the Federal Register.” Id. at 32,499-32,500. The date of publication in the Federal Register was February 22, 1983, see 48 Fed.Reg. 7,469. The NOPR also stated that “the Commission is specifically considering expanding the applicability to include future maximum lawful prices for all tight formation” gas, including gas from wells the drilling of which had already commenced. F.E.R. C. Stats, and Regs. [Proposed Regs. 1982-1987] at 32,500. The agency received numerous comments on its proposal. Pipelines favored a reduction in the ceiling, stressing that natural gas prices had become exorbitant in relation to prices of alternative fuels. Producers opposed the change, asserting that the reasoning of Order No. 99 remained sound and that the proposed reduction would not allow adequate incentives for continued development. The Commission, however, took no action, even after receiving repeated petitions to expedite the rule-making. Finally, almost four years later, FERC terminated the docket. See Basket Termination Order, Order No. 459 (December 5, 1986), Joint Appendix (“J.A.”) 1. Texas Gas Transmission Corporation and Williams Natural Gas Company petitioned for rehearing; those petitions were denied. See Basket Termination Order; Order Denying Rehearing, Order No. 459-A (February 3, 1988), J.A. 214. Williams, Texas Gas, and Texas Eastern Transmission Corporation then sought review in this court. The petitioners argued that FERC’s termination of the rulemaking was arbitrary and capricious, and that retention of the current incentive price for tight formation gas was in contravention of the statute. The petitioners asked the court “to reverse or, alternatively, to remand the FERC’s orders with instructions to eliminate or to modify ... incentive pricing for all tight formation gas as of January 1, 1985.” Brief for Petitioners at 37. II. Analysis A. Standard of Review The law in this circuit clearly holds that an agency’s termination of an ongoing rulemaking is judicially reviewable. As we said in Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031, 1047 (D.C.Cir.1979) (“NRDC”), “in light of the strong presumption of reviewability, discretionary decisions not to adopt rules are reviewable where, as here, the agency has in fact held a rulemaking proceeding and compiled a record narrowly focused on the particular rules suggested but not adopted.” See also Environmental Defense Fund v. EPA, 852 F.2d 1316 (D.C.Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1120, 103 L.Ed.2d 183 (1989); Action on Smoking and Health v. C.A.B., 699 F.2d 1209 (D.C.Cir.1983). The NRDC court drew a clear distinction between an agency’s refusal to undertake a rulemaking (reviewable, if at all, under an exceedingly narrow standard), and its decision to terminate a docket after a substantial record has been compiled. See NRDC, 606 F.2d at 1045-47. In the present case, it is clear that we are confronted with no mere failure to act. The agency has issued a lengthy document expressing its tentative conclusion that a change in the regulations is warranted, and it has received numerous comments on the issue from interested parties. Under these circumstances, a court generally will have a sufficient evidentiary basis for determining whether the Commission’s ultimate decision was arbitrary and capricious or in contravention of the statute. At the same time, however, we believe that the agency’s termination of a rulemaking should be reviewed somewhat more deferentially than would its promulgation of a new rule. When the agency promulgates a new regulation, or when it rescinds an old one, it alters the regulatory status quo. Such a decision, we believe, requires a more persuasive justification than does the decision to retain an existing rule. As the Supreme Court stated in a slightly different context: If Congress established a presumption from which judicial review should start, that presumption ... is not against ... regulation, but against changes in current policy that are not justified by the rulemaking record. Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 42, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (emphasis in original). We do not believe that it is necessary to articulate a distinct intermediate standard for reviewing an agency’s termination of an ongoing docket. We simply note that our application of the “arbitrary and capricious” standard must be informed by our recognition that an agency’s decision to retain the status quo may be more easily defensible than a shift in policy would be. B. What Gas is Affected? The Supreme Court’s recent decision in Martin Exploration upheld FERC’s determination that new tight formation gas which qualifies for deregulation under NGPA § 102(c) or § 103 would be deregulated on January 1, 1985. See 108 S.Ct. at 1770-71. It appears that most tight formation gas is therefore no longer subject to the price ceilings established by the NGPA. Some tight formation gas, however, remains regulated. As the agency’s brief to this court states: “New tight formation gas” qualifying under Section 103(b)(2) which was committed or dedicated to interstate commerce on April 20,1977, and which would not otherwise qualify for deregulation under Section 102, could remain regulated. Otherwise, only “recompletion tight formation gas,” which is not required to also qualify under NGPA Sections 102 and 103, remains subject to a regulated ceiling. Only a small percentage of gas remains price regulated. Brief for FERC at 16 n. 10. Plainly, the price of regulated tight formation gas will be affected by the retention of the incentive ceiling. The impact of FERC’s decision to terminate the docket, however, extends beyond this category of gas. The Notice of Proposed Rulemaking indicated that any eventual reduction in the ceiling price for tight formation gas could apply to all such gas “the surface drilling of which commenced after the date of publication of this Notice in the Federal Register.” F.E.R.C. Stats, and Regs. [Proposed Regs. 1982-1987] II 32,294 at 32,499-32,500. If the agency had promulgated the rule as it was set forth in the NOPR, the retroactive application of that rule would have resulted in substantial refunds to the pipelines. Of course, we recognize that the agency might have reduced the ceiling price for tight formation gas without giving its decision retroactive effect. There is also some uncertainty as to the extent of the Commission’s authority to order retroactive changes in light of the filed-rate doctrine. See Midwest Gas Users Association v. FERC, 833 F.2d 341 (D.C.Cir.1987). Thus, if the rulemaking had not been terminated, and if the Commission had chosen to reduce the incentive price, that decision would not necessarily have resulted in refunds to the pipelines. It nevertheless seems clear to us that this additional category of gas — tight formation gas already bought and paid for which was produced from wells drilled after February 22, 1983 —was at least potentially affected by FERC’s termination of the docket. Moreover, the retention of the incentive price can be expected to exert a continuing impact on at least some future sales of deregulated tight formation gas. It appears that many long-term contracts between pipelines and producers provide that the price for deregulated gas will be set by reference to the “last regulated price.” Thus, the retention of the incentive price, through the operation of these contractual clauses, will continue to affect the price of gas sold after the date of deregulation. C. Williams’ Challenges to the Commission’s Decision Williams asserts two broad challenges to the Commission’s decision to retain the incentive price for tight formation gas. Both of the petitioners’ arguments rest on the statutory requirement that incentive prices be established only when they are “necessary to provide reasonable incentives for the production of such high-cost natural gas.” NGPA § 107(c)(5), 15 U.S.C. § 3317(c)(5). In issuing Order No. 99, in 1980, FERC concluded that higher ceiling prices for tight formation gas met the statutory criteria. The petitioners acknowledge that the incentive price was “necessary” and “reasonable” in 1980. They contend, however, that FERC’s initial finding can no longer be presumed correct. The petitioners’ first argument is based on language in Order No. 99 itself. In petitioners’ view, Order No. 99 found only that the new incentive price would be necessary and reasonable until January 1, 1985; it made no finding as to whether the tight formation ceiling would be warranted after that time. Therefore, in Williams’ view, the incentive price could be maintained after that date only pursuant to a new Commission finding. Since FERC plainly failed to make such a finding before it terminated the docket, Williams argues, the retention of the incentive price after January 1, 1985, was arbitrary and capricious and in violation of the statute. We do not believe that Order No. 99 supports the petitioners’ position. That Order, it is true, contained passing references to the effect that “the focus of our pricing inquiry is to determine the necessary incentive for the transition period between now and 1985. It is our intention to establish a price that will stimulate production of gas from tight formations during the transition period.” F.E.R.C. Stats, and Regs. [Reg. Preambles 1977-1981] at 31,266. It is on statements such as these that Williams re-lies. Read in context, however, these statements simply reflect the agency’s view that the price ceilings would be largely irrelevant after January 1, 1985, because most tight formation gas would be deregulated after that date. Order No. 99 did not, in our view, suggest that the incentive price would abruptly cease to be reasonable as to those categories of tight formation gas which remained subject to regulation. Nor, in our opinion, is there any real logical force to Williams’ argument. As to most natural gas — including most tight formation gas — Congress plainly intended that January 1, 1985, would be a watershed date. It seems equally plain, however, that for certain categories of gas this date was not to be pivotal. We see no connection between the deregulation of most gas and the appropriate ceiling for that portion of gas which remains regulated. We therefore reject the petitioners’ contention that FERC’s maintenance of the incentive price after January 1, 1985, required a new finding that such a price remained necessary and reasonable. Williams’ second argument, however, is more compelling. As we have noted, this is not a case in which the agency has simply ignored private parties’ requests for rule-making. Rather, the agency itself has called into question the propriety of its own regulation. Cf. Meredith Corp. v. FCC, 809 F.2d 863, 873 (D.C.Cir.1987) (the ordinary presumption that a validly promulgated regulation remains valid is not applicable where “the Commission itself has already largely undermined the legitimacy of its own rule”). The NOPR stated that the Commission must now consider whether its own decisions in setting incentive ceilings under NGPA section 107(c)(5) are exacerbating the current gas pricing problems. The Commission believes that a ceiling price in excess of the commodity value of gas, as measured by reference to the prices of competing fuels, is contrary to the public interest. F.E.R.C. Stats, and Regs. [Proposed Regs. 1982-1987] at 32,497. The agency did not expressly question the legality of the incentive price for tight formation gas. It would seem to us quite difficult, however, to reconcile the NOPR’s view of current market conditions with the statutory requirement that an incentive price be “necessary to provide reasonable incentives” for production. We therefore view the NOPR as expressing the agency’s tentative conclusion that the incentive price for tight formation gas would disserve the public interest and would violate the governing statute. Of course, the agency’s articulation of this belief did not obligate it to alter the incentive price for tight formation gas. An NOPR is by definition the expression of an agency’s tentative position. The whole point of notice-and-comment rulemaking, after all, is that the comments which the agency receives may induce it to abandon or modify its initial views. We therefore recognize that the issuance of an NOPR— even a strongly worded NOPR — in no way binds the Commission to promulgate the proposed regulation. We do believe, however, that the agency, having expressed these tentative views and having solicited comments on the issue, was not free to terminate the rulemaking for no reason whatsoever. In deciding whether the termination of this docket was arbitrary and capricious, we must therefore examine the Commission’s stated reasons for its decision. D. FERC’s Justifications for Terminating the Docket In denying rehearing of its order terminating this docket, the agency stated: The Commission is denying rehearing of the termination of the incentive prices rulemaking dockets because the actions proposed in these dockets, as well as the information and comments submitted in these dockets, fail to reflect the substantial changes that have occurred in the natural gas industry since these proposals were initiated. These changes make the terminated proposals unnecessary in light of the current competitive market for natural gas. Order No. 459-A at 3, J.A. 217. Though the Commission advances several discrete arguments to support its termination of the rulemaking, all are variants of the same basic theme: that changes in the industry have rendered the NOPR proposals obsolete. Our attention is drawn, we note at the outset, to one change which FERC does not contend has occurred. The Commission does not deny that the incentive price for tight formation gas remains substantially higher than the market-clearing rate. It does not, in short, assert that the regulatory anomaly which originally prompted the NOPR no longer exists. Examining the agency’s arguments based on changed conditions, we conclude that none is sufficient to justify its termination of the rule-making. 1. Deregulation of Natural Gas One of the agency’s arguments is that any problem posed by the incentive prices has been largely rendered moot, since most tight formation gas is now deregulated and thus is no longer governed by the ceilings set by the Commission. Order No. 459-A, issued before the Supreme Court’s decision in Martin Exploration, stated that “[i]f the Supreme Court [upholds FERC’s position], a large portion of high-cost gas under section 107(c)(5) would be deregulated and would no longer be subject to the NGPA section 107 maximum lawful price ceiling.” Order No. 459-A at 10 n. 10, J.A. 224. FERC’s brief to this court states that there should be few cases where gas that is qualified under Section 107(c)(5) has not been qualified for a deregulated status for which it is eligible_ [I]mple-mentation of NGPA deregulation ... has by and large done away with Section 107(c)(5) pricing, thus rendering [Williams’] argument moot in a practical sense. Brief for FERC at 17. We believe that this argument fails in two respects. First, the agency’s position here rests on the erroneous premise that retention of the incentive price will have a practical effect only on future sales of regulated gas. The Commission ignores the fact that the NOPR envisioned possible retroactive application of any eventual regulatory change —a proposal which, if carried out, would result in substantial refunds to the pipelines. The Commission also ignores the contention that many contracts for future sales of deregulated gas have set the price by reference to the last regulated price. We therefore believe that FERC has seriously underestimated the extent to which its termination of the docket exerts a continuing impact on pipelines and producers. Moreover, we would find FERC’s argument unavailing even if we accepted its premise that only future sales of regulated gas will be affected by retention of the incentive price. The NOPR expressed the tentative conclusion that the incentive price established by Order No. 99 was no longer reasonable in comparison to the costs of alternative fuels — a conclusion which the agency has never disavowed. Given the statutory requirement that § 107 ceilings should provide “reasonable incentives” for production, this would seem tantamount to saying that the tight formation price was no longer authorized by the statute. In response to the NOPR, numerous parties filed comments arguing that the incentive price had become unlawful. The Commission has simply refused to address this question. Perhaps the agency may refuse to rectify a statutory violation whose practical import is de minimis, but its authority to do so must surely be narrowly circumscribed. In our view, the agency’s statement that a “large portion” of tight formation gas has been deregulated is plainly insufficient to justify the agency’s failure to act. 2. Reliance on Competition The Commission’s second argument, closely related to the first, is that competitive pressures in a largely deregulated market will alleviate any problems caused by long-term contracts which reference the incentive price. Order No. 459-A states that [t]he Commission expects that parties to a contract would renegotiate a “problem contract” if the contract term is no longer market-responsive. The Commission, therefore, expects that the current market will serve to limit incentive prices to competitive levels. Such competitive market forces should be given a chance to operate before any decision is made that regulatory measures are needed to limit incentive prices. Order No. 459-A at 9-10, J.A. 223-24. The agency does not explain why producers would agree to renegotiate long-term contracts which obligate the pipelines to pay an incentive price which is far in excess of market rates. In our view, this reliance on competition is subject to the same criticisms which led to the invalidation of FERC’s decisions in Associated Gas Distributors v. FERC, 824 F.2d 981 (D.C.Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1468, 99 L.Ed.2d 698 (1988), and Consolidated Edison of New York, Inc. v. FERC, 823 F.2d 630 (D.C.Cir.1987). Reliance on competition in this setting “reflects a pervasive frame of mind of the Commission about a crucial problem in the natural gas industry, ... a refusal to face the fact that the burdensome take-or-pay contracts will not go away....” Consolidated Edison, 823 F.2d at 641-42. The agency “seems to confuse the pipelines’ incentives to renegotiate contracts, with their ability to do so.” Associated Gas, 824 F.2d at 1024 (emphasis in original). We therefore do not believe that the agency’s termination of the docket can be sustained on this basis. 3. Consensual Nature of the Incentive Price The Commission also emphasizes that its tight formation rules (like the NGPA generally) establish ceiling prices, not mandated rates. Since actual prices are set by contract between the parties, Order No. 459-A states, “[t]he Commission expects the parties to negotiate an appropriate price for the purchase and sale of high-cost gas in the market.” Order No. 459-A at 9, J.A. 223. The agency’s brief gives this argument a slightly accusatory twist, asserting that Williams is complaining about the effect of contracts it freely negotiated, which failed to take into account the inevitable effect of deregulation.... What Williams chooses to ignore, however, is that in those cases in which it is subject to the Section 107(c)(5) price, this is so by means of already negotiated contracts under which it has agreed that an incentive price for the particular production was necessary to bring the gas to the market, and thus to pay a price up to the Section 107(c)(5) ceiling. Brief for FERC at 18-19 (emphasis in original). We do not believe, however, that FERC can evade its responsibilities by arguing that the petitioners have brought their troubles on themselves. Order No. 99, it is true, did presume that a contractual provision referencing the incentive price constitutes evidence that this price is “necessary” to bring the gas to the market. Plainly, though, the Commission did not presume that any price on which contracting parties agree can be deemed “necessary to provide reasonable incentives” for production. Had the Commission acted on that presumption, it would have imposed no ceiling at all on tight formation gas; in other words, it would have deregulated this gas by rule prior to the statutory deregulation date. The agency has never suggested that the NGPA gives it the power to take such a step. Rather, Order No. 99 required both that the incentive price be necessary to induce production (as evidenced by the parties’ contractual agreement) and that it provide a reasonable incentive (as measured by prices for alternative fuels). The fact that petitioners have entered into contracts referencing the incentive price does not prove that this price meets the statutory criteria. In fact, the premise on which FERC’s argument depends — the assumption that any price upon which buyer and seller agree is, ipso facto, a reasonable price — is wholly alien to the statutory framework. The NGPA did provide for deregulation of most natural gas on January 1, 1985. But it also mandated price ceilings for gas sold prior to that date (and for some gas sold later). The Act can hardly be seen as reflecting unequivocal enthusiasm for market forces as price-setting mechanisms. FERC’s argument, we would note, would appear to preclude any party from ever challenging a price ceiling set by the agency on the ground that it has been set too high, since the ceiling price will always be collected pursuant to a contractual agreement. We see no basis in either the statute or in logic for such an extraordinary abdication of the agency’s role. Finally, we believe it is significant that FERC has not merely tolerated, but has actively encouraged, the formation of contracts between producers and pipelines which incorporate by reference the regulatory ceiling. Order No. 99 provided that the incentive price for tight formation gas could be collected only if the parties had agreed upon a “negotiated contract price.” One means of satisfying this requirement was to set the contractual price by reference to the § 107 ceiling. FERC further provided that contracts which did not contain such a term could be amended so as to allow collection of the incentive price. Having set the rate by reference to the incentive price, and having done so with the agency’s encouragement, the pipelines were surely entitled to assume that the Commission would continue to monitor the ceiling price to ensure that it remained reasonable in light of subsequent developments. And, having cast substantial doubt upon its own rule, the Commission may not shirk its duty to complete the inquiry by arguing that the pipelines have brought their troubles on themselves. 4. Staleness of the Record The Commission also justified its termination of the rulemaking by arguing that “[t]he six dockets that relate to high-cost gas are all at least two years old and the proposals in those dockets may be no longer relevant to current conditions in the natural gas market.” No. 459 at 10, J.A. 11. The agency does not contend that there is any particular reason to doubt that the incentive price for tight formation gas remains far higher than the market rate. It simply argues that, due to the staleness of the record, there is no way of knowing whether the concerns that originally prompted the NOPR remain present today. The NOPR was issued on February 10, 1983 (and published in the Federal Register on February 22, 1983), and the rule-making was terminated almost four years later. The agency waited an additional year before denying rehearing of the order that terminated the docket. These delays occurred despite repeated requests to expedite the rulemaking; FERC now contends that the long delay is itself a reason for abandoning the inquiry. We do not believe that the agency’s decision can be upheld on this basis. If FERC regarded the information in its record as out-of-date, then it might more reasonably have chosen to supplement the record rather than terminate the docket. See Request of Texas Eastern Transmission Corporation for Rehearing of Order No. 459 at 20, J.A. 202. 5. Parallel Proceedings Finally, FERC argues that the termination of this docket was justified because the underlying problem has been adequately addressed in other rulemakings. The Commission relies particularly on its recently issued Order Nos. 451 and 500, Orders dealing with the larger problem of long-term take-or-pay contracts in the natural gas industry. The agency is surely correct in noting that the incentive price creates continuing problems only because of its incorporation in long-term contractual agreements between pipelines and producers. There is consequently some logic to the Commission’s belief that a comprehensive solution to the take-or-pay problem would be preferable to a piecemeal attack on its various manifestations. We do not believe, however, that either of these Orders undoes the effects of the incentive price. First, the Orders in question are directed at problems which are only indirectly related to the problems created by the high incentive price for tight formation gas. Order No. 451 deals with “mixed-vintage” contracts — contracts for the sale of both “old” and “new” gas. The Commission has given us no reason to believe that a substantial percentage of tight formation gas sales are effected through mixed-vintage contracts. Order No. 500 allows pipelines to share with their downstream customers some of the costs of renegotiating take-or-pay agreements. It does nothing about the contracts themselves, and is thus of limited relevance to a dispute between pipelines and producers. These Orders may provide effective responses to particular aspects of the take-or-pay problem, but neither appears to offer anything approaching a comprehensive solution. Certainly neither of these Orders renders the incentive price irrelevant. These Orders, we emphasize, do not abrogate existing contracts; they simply provide incentives for the parties to renegotiate uneconomical agreements. It is clear, though, that when producers and pipelines renegotiate contracts for tight formation gas, the fact that these contracts reference the current high incentive price will give the producers additional leverage, allowing them to extract concessions that would otherwise be unavailable. To put it another way: these Orders may enable pipelines to buy their way out of uneconomical contracts, but the existence of the high incentive price will force them to pay more for the privilege. Of course, there is nothing wrong with forcing the pipelines to bear most of the costs of their own bad bargains, if the contracts have become unfavorable due to the pipelines’ improvidence or due to simple bad luck. But it is quite another matter if the contracts are unfavorable because they incorporate an incentive price which is no longer consonant with the statute. The NOPR appeared to reflect the Commission’s tentative view that the incentive price for tight formation gas was no longer reasonable, and that its continued implementation would thus be contrary to the NGPA. It may be that the agency no longer holds that view. But the Commission should not be claiming that the issue is no longer of any consequence simply because the pipelines, by renegotiating their long-term contracts, may be able to avoid some of the costs which the incentive price would otherwise impose. Nor can we sustain the termination of this docket on the basis of the agency’s statement that this problem may be dealt with in a future proceeding. If the Commission’s action is not otherwise sustainable, it cannot be upheld on the basis of a suggestion that the issue might be addressed at some indeterminate point in the future. It is by no means clear, moreover, that the initiation of a new rulemaking would be equivalent to the reopening of the old docket. The 1983 NOPR indicated that any changes eventually made could be applied retroactively. Changes implemented by a new rulemaking might provide far less substantial relief. We do not suggest that the agency is obligated to apply regulatory changes retroactively, and indeed there may be legal constraints on its ability to do so. See Midwest Gas Users, supra p. 444. The Commission may not, however, simply ignore this issue in reaching its determínation that a new rule-making will provide an adequate substitute for the old docket. III. Conclusion We recognize that an agency’s discretion is surely at its height when it chooses not to act. We also recognize that notice-and-comment rulemaking procedures contemplate — indeed presume — that the arguments of interested parties may induce an agency to rethink its initial view of a situation. The original NOPR in no way bound the agency to promulgate a final rule if further reflection, or changed circumstances, convinced the Commission that no regulatory change was warranted. Issuance of the NOPR did, however, oblige the agency to consider the comments it received and to articulate a reasoned explanation for its decision. We do not believe that the Commission has met these requirements. Because we conclude that the Commission has failed to provide a satisfactory explanation for its termination of this docket, we remand to the agency for further consideration of this question. We do not order the agency to implement the proposal that was articulated in the NOPR. The Commission is required to reopen this docket, but it retains wide discretion on remand. The agency might, for instance, wish to solicit new comments in order to obtain updated information. FERC may also choose to terminate the docket again and to address this problem within the context of another proceeding, provided that it offers a reasoned explanation for its decision. The mere suggestion that FERC might consider this question at some point in the future will not, however, be sufficient. If the Commission decides to address this issue by way of a new rulemaking, it should explain why it believes, in light of the NOPR’s provision for retroactive application, that a new proceeding will adequately protect the petitioners’ interests. Judgment accordingly. . "A ‘tight formation’ is a sedimentary layer of rock cemented together in a manner that greatly hinders the flow of any gas through the rock. Because such a formation is characterized by low permeability, wells drilled into gas-bearing formations of this kind usually produce at very low rates. To stimulate production from these formations, producers must use expensive enhanced recovery techniques.” Order No. 99, “Regulations Covering High-Cost Natural Gas Produced From Tight Formations," 45 Fed.Reg. 56,034 (April 22, 1980), F.E.R.C. Stats, and Regs. [Reg. Preambles 1977-1981] ¶ 30,183 at 31,260. . The agency stated that “[i]n establishing prices for high-cost gas, the Commission must be sensitive not to undermine Congress’ overall pricing scheme. Section 107(c)(5) prices must not create perverse incentives but must be in harmony with the overall Congressional scheme.” F.E. R.C. Stats, and Regs. [Reg. Preambles 1977-1981] at 31,265. . This Order terminated several dockets dealing with related subjects. Only the termination of Docket No. RM82-32-000 is at issue in this proceeding. . The court stated that "in general, the more complete an agency’s consideration of an issue, the more likely it is that the ultimate decision not to take action will be a proper subject of judicial review." 606 F.2d at 1047 n. 19. . In State Farm, the Supreme Court rejected the claim that rescission of an old regulation should be reviewed more deferentially than the promulgation of a new rule. . Commenters informed the agency that these additional categories of gas would be affected by the termination of the docket. See, e.g., Request of Texas Eastern Transmission Corporation for Rehearing of Order No. 459 at 17, J.A. 199; Second Motion to Expedite of Northwest Central Pipeline Corporation at 8, J.A. 146. . The petitioners concede that the 1980 regulations contain no "sunset” provision. That is, the rules did not, by their own terms, cease to apply as of January 1, 1985. Petitioners’ argument is based solely on statements in the agency’s preamble to those regulations. . In its original decision to terminate the docket, FERC placed substantial reliance on Order No. 436. This court has since held, however, that Order No. 436 is flawed in that it may tend to exacerbate some of the problems created by long-term take-or-pay contracts. See Associated Gas, supra, 824 F.2d at 1024. On remand, the Commission issued Order No. 500. . Our recent opinion in Tennessee Gas Pipeline Company v. FERC, 871 F.2d 1099 (D.C.Cir.1989) provides an instructive contrast. In Tennessee Gas we upheld the Commission’s decision to eliminate the "minimum commodity bill” which the pipeline had charged its customers. We relied heavily on FERC's assurance that Order No. 500 had addressed the precise problem with which the minimum bill was designed to deal. See Tennessee Gas at 1106-1107. . In Order No. 500, the Commission solicited comments on whether "action under NGA section 5, or any other action (such as rescinding the incentive ceiling price for tight formation gas established under NGPA section 107(c)(5)), would contribute to solving pipeline take-or-pay problems." Ill F.E.R.C. ¶ 30,761 at 30,784 (August 7, 1987). Commissioners Sousa and Stal-on, concurring in Order No. 459-A, emphasized that they "support addressing certain of the issues raised in these dockets in the final rule implementing Order No. 500 or in a separate action under section 5 of the Natural Gas Act (NGA)." J.A. 226. . The Commission may now believe that retroactive application of any change in the incentive ceiling is undesirable (or impermissible). Or the agency might conclude that it has the power to institute a new proceeding with an effective date of February 22, 1983. What the Commission may not do is ignore the issue entirely: it may not pretend that a change in the incentive price with an effective date in 1989 is equivalent to a change in the ceiling with an effective date of February 22, 1983. The NOPR stated tentatively that any regulatory changes would apply retroactively to all tight formation sales from wells drilled after February 22, 1983. In its brief to this court, however, Williams requested that we eliminate "incentive pricing for all tight formation gas as of January 1, 1985.” Brief for Petitioners at 37. We leave it to the Commission to determine, in the first instance, whether the petitioners have thereby waived their claim for refunds for gas purchased prior to January 1, 1985. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:

songer_usc1

33

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. Barbara J. GARVIN, James Edward Garvin, Jr., Appellees, v. ALUMAX OF SOUTH CAROLINA, INC., a Delaware Corporation, Appellant, and Alesa Alusuisse Engineering, A.G., a Swiss Corporation, Reggiane, an Italian Corporation and Specimas, an Italian Corporation, Defendants. No. 84-1156. United States Court of Appeals, Fourth Circuit. Argued Oct. 2, 1984. Reargued Feb. 5, 1985. Decided April 1, 1986. Rehearing and Rehearing En Banc Denied May 14,1986. Henry B. Smythe, Jr. (David B. McCormack, Buist, Moore, Smythe & McGee, Charleston, S.C., on brief), and M. Dawes Cooke, Jr. (Barnwell, Whaley, Patterson & Helms, Charleston, S.C., on brief), for appellant. George E. Campsen, Jr. (Marvin D. In-finger, Sinkler, Gibbs & Simons, Charleston, S.C., on brief), for appellees. Before RUSSELL and MURNAGHAN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge. HAYNSWORTH, Senior Circuit Judge: Garvin was seriously injured while doing maintenance work on a ship loader located upon a pier. He was collecting compensation under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq., when he filed this action against the firms that allegedly designed and manufactured the machine and some of its component parts and against the contractor-owner of the machine who had contracted with Garvin’s immediate employer for its operation and maintenance. He alleged liability under the South Carolina Strict Liability statute, S.C.Code § 15-73-10 et seq., and in negligence. Alumax, the contractor and owner of the unloader, was not a seller of the machine and the claim against it was grounded solely upon common law negligence. Alumax filed a motion to dismiss on the ground that it was the statutory employer of the plaintiff and immune from this common law tort action against it under South Carolina’s Workmen’s Compensation Act, § 42-1-540. The district court denied the motion, reasoning that since the LHWGA affirmatively extends immunity only to the subcontractor, which had procured compensation insurance, the two statutes were repugnant, the federal Act took precedence under the supremacy clause, and Alumax was not immune from suit. While the case against all the other defendants is pending, the district court certified its decision for an immediate appeal under the provisions of 28 U.S.C.A. § 1292(b). This court granted leave to appeal. Finding no repugnancy in the two statutes in the context of this state law tort claim, we reverse and hold that Alumax is entitled to the immunity conferred upon it by South Carolina law. I. Alumax is an importer of alumina ore, which it converts into aluminum. It is a joint lessee of a terminal near Charleston, South Carolina for the unloading of oceangoing vessels and is the owner of the alumina ore unloading machine installed on the pier. The terminal is operated by Lemm Corporation-Operations, Garvin’s immediate employer, and it is responsible for the operation and maintenance of the unloading machine. Lemm procured workmen’s compensation insurance, as it was contractually required to do, but the premium costs were treated as costs of operation that Alumax paid. While performing routine maintenance work on the unloading machine, Garvin came in contact with electrically energized members. He was severely shocked and suffered the loss of both arms. II. Preliminarily, we address the question of our subject matter jurisdiction, though we conclude that we have jurisdiction to adjudicate the merits of the question presented by the parties. Garvin and his wife filed their original complaints in the United States District Court for the District of South Carolina. They alleged that federal jurisdiction was present because of diversity of citizenship and the presence of the requisite amount in controversy. That allegation, though correct as to all of the other defendants, turned out to be incorrect as to Alumax. Alumax, however, did not immediately raise the jurisdictional question. Instead, it moved for a dismissal on the ground that it was Garvin’s statutory employer and that neither Garvin nor his wife, claiming through him, had any cause of action against it for his work-related injury. In order to avoid dismissal of the complaint on the merits, Garvin filed a second amended complaint. In that complaint, he alleged federal question jurisdiction. Specifically, it was alleged that Garvin was receiving compensation under the LHWCA; that under that statute, as amended, Alumax, as the remote employer, had no immunity; that the federal and state statutes were repugnant; and that the provisions of the federal statute should prevail under the Supremacy Clause. Conceding that there was no right of action under state law, it was alleged that a determination that the federal statute had the meaning and the effect for which the plaintiff contended was “essential” to his cause of action. As indicated earlier, the district judge was persuaded, holding that the two statutes, indeed, were repugnant and that the federal statute prevailed rendering inapplicable South Carolina’s protection of statutory employers. It may well be that we are all agreed that the LHWCA does not purport to create any rights of action in consequence of any land based injury not caused by a vessel. At least by indirection, however, it is the contention of the plaintiff, and the holding of the district judge, that it does. The South Carolina statute, § 42-1-540, provides that acceptance of the compensation scheme “shall exclude all other rights and remedies of such employee” and those claiming through him. If that provision is rendered inapplicable by the LHWCA, as amended in 1984 specifically to permit injured employees of subcontractors to sue the general contractor unless the subcontractor had failed to procure compensation insurance and the general contractor had been compelled to do so, then the LHWCA has created a cause of action when none otherwise would exist. Its creation may be somewhat indirect when, under the South Carolina statutes, Garvin has neither right nor remedy, but plaintiff’s claim of a right to sue is clearly derived from the federal statute. The South Carolina statute speaks in terms of the exclusion of all other rights and remedies. If a covered employee of a complying employer is injured on the job, a right of compensation accrues, but no common law action for damages accrues as against his immediate or remote employer. When one views the state scheme in terms of the plaintiff’s search for a right to sue, the invocation of the federal statute takes on a decidedly “offensive” cast. The plaintiff has an immediate need for the federal provision because, without it, he may not proceed. For convenience, however, the statutory deprivation of an injured employee of his right of action against his employer is frequently described as the employer’s immunity. If one speaks in terms of immunity, the effect of the federal statute might seem a bit more indirect. It might be argued that South Carolina has always preserved the right of action by an injured employee against a statutory employer and provided an appropriate remedy, but, at the same time, has clothed the statutory employer with immunity. In that posture, the plaintiff’s contention is given a more defensive coloration. If it is thus contended that an injured employee may state a perfectly good claim against his statutory employer for negligent infliction of physical injury and the statutory employer’s reliance upon the statute is labeled a claim of immunity, then the plaintiffs reference to the LHWCA may seem a federal response to an anticipated state law defense. This, however, is only a circuitous statement of the plaintiff’s claim that the LHWCA gives him a right to proceed which otherwise he would not have. Federal question jurisdiction can be invoked only when the federal question appears on the face of the plaintiff’s complaint. Usually, the plaintiff’s right must be, in part at least, a federal right, and federal question jurisdiction may not be invoked by an allegation of an anticipated federal defense or a federal response to an anticipated state law defense. See Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Mottley is at one end of the spectrum. The plaintiffs stated a perfectly good breach of contract claim governed entirely by state law. They went further, however, and alleged that the Railroad sought to justify or excuse its non-performance by reference to a recently enacted federal statute governing the issuance of passes to railroad passengers. They went still further and alleged that the federal statute was unconstitutional as applied if it were held to require that the Railroad refuse further performance of its contractual obligation. There, the federal statute was clearly separable from the plaintiffs’ claim. The plaintiffs’ cause of action was sufficiently stated without reference to the federal statute. That reference was only in anticipation of the Railroad’s defense. The plaintiff concedes that he has no right of action under South Carolina law; he claims that he does have a right of action under the LHWCA and alleges that a construction and application of that statute in accordance with his contentions is essential to his cause of action. Whether one accepts the plaintiff at his word, however, and looks upon the federal statute as an essential ingredient of the plaintiff’s claimed cause of action, or whether one looks upon the federal statute, as construed by the plaintiff, as stripping away the state created absolute immunity of the defendant, leaving it open to the plaintiff’s attack, should make no difference. A determination whether a federal question is appropriately alleged in the plaintiff’s complaint should not depend upon subtle choices of emphasis. The situation should be viewed realistically. The defendant is in its citadel with all of the protection of the South Carolina statute. The plaintiff may successfully assault it only from a foundation of some federally derived right, for he has no right of action under state law. He alleges that federal right, and we should accept the allegation as appropriate to his claim. At the time of Mottley, the prevailing view was that, for jurisdictional purposes, a cause of action could not be said to arise under the laws of the United States unless the right of action was a creature of the laws of the United States. See American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 36 S.Ct. 585, 60 L.Ed. 987 (1916). Federal jurisdiction does not exist, it was said, unless federal law “create[s] at least a part of the cause of action by its own force.” Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 215, 41 S.Ct. 243, 250, 65 L.Ed. 577 (1921) (Mr. Justice Holmes, dissenting). That view, however, was very substantially relaxed by the Supreme Court in the Smith case. That was a suit by a shareholder to prevent the directors of the corporation from investing corporate funds in bonds issued by a federally chartered land bank. The action was brought under a Missouri law which limited the bjank’s investment of funds to “valid” securities. The plaintiff alleged that the federal land bank's bonds were invalid because the authorizing act of Congress was unconstitutional. Despite the procedural remoteness of the federal question, the Supreme Court held that federal question jurisdiction existed “because the controversy concerns the constitutional validity of an act of Congress which is directly drawn into question.” Id. at 201, 41 S.Ct. at 245. Not surprisingly, Mr. Justice Holmes dissented. Under his strict view there could be no jurisdiction because Missouri alone had created the cause of action. State law provided the right and the remedy to confine the directors to lawful investments; federal law had no operative force of its own in the case, and the state’s adoption of it for the purpose of determining whether the bonds were valid or invalid did not make the cause of action one arising under federal law. Id. at 215, 41 S.Ct. at 250. It is true that Smith’s cause of action was strictly the creature of state law, but the Supreme Court majority took the practical view and recognized that the only substantial legal question in the case was the validity of the bonds, and that was a federal question. At issue was the validity of an act of Congress, and pragmatic considerations strongly suggest that it was the kind of case that belonged in the federal courts. The Smith case ushered in a new era. By 1964, Judge Friendly could say with some assurance that “[ejven though the claim is created by state law, a case may ‘arise under’ a law of the United States if the complaint discloses a need for determining the meaning or application of such a law.” T.B. Harms Co. v. Eliscu, 339 F.2d 823, 827 (2d Cir.1964). Except when the need is only collateral or peripheral or relevant only to a separable defensive claim, federal question jurisdiction should be found to exist if the complaint discloses that the result will turn in substantial part upon the resolution of the federal question. See Gully v. First National Bank, 299 U.S. 109, 118, 57 S.Ct. 96, 100, 81 L.Ed. 70 (1936). This court has adopted that approach. Christopher v. Cavallo, 662 F.2d 1082, 1083 (4th Cir.1981). Other cases seem consistently to take the practical, pragmatic approach of Eliscu and Christopher. The plaintiff’s complaint alleges a federal question. Resolution of that question in a manner favorable to him, he says, is essential to his cause of action. Indeed, in the present posture of the case, it is the only legal question presented. If that question is resolved unfavorably to him, he loses; if resolved favorably to him, there may be factual disputes leading to findings about negligence and contributory negligence, but, as between the plaintiff and Alumax, the record does not disclose any other substantial, lurking legal question. Since the plaintiffs complaint presents a substantial federal question which it is necessary to determine, we conclude that federal question jurisdiction is present. That there is jurisdiction to adjudicate, however, does not suggest that the plaintiff must necessarily prevail on that question. A federal court does not lose jurisdiction to adjudicate because resolution of the federal question ultimately goes against the plaintiff. See Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). In determining our jurisdiction, it is enough to observe that the district judge adopted the plaintiff’s contentions, and this court cannot say that the contentions are insubstantial or frivolous. III. There is a long history of congressional deference to the workmen’s compensation acts of the states with respect to maritime employees other than masters and members of the crews of vessels. When, in 1917, the Supreme Court held in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, that New York’s workmen’s compensation act could not be constitutionally applied to the employer of a longshoreman injured while engaged on shipboard in the unloading of the ship, the Congress twice attempted to avoid the Jensen bar and to authorize the extension of state workmen’s compensation acts to maritime injuries of longshoremen and other harbor workers. Those efforts were held unavailing as in violation of the federal Constitution. Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834 (1920), Washington v. W.C. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646 (1924). Finally, the Congress, responding to a Supreme Court suggestion, enacted the LHWCA providing federal compensation coverage for such maritime workers, but the Act was to apply only if the relevant state’s workmen’s compensation act might not be validly applied. Thus, the Congress sought to draw the line between federal and state authority at the outer limits of the reach of the state’s constitutional power to enforce and apply its workmen’s compensation act. The bright line that the Congress sought to draw between federal and state authority proved to be fuzzy. Injuries were suffered under circumstances in which no one could confidently predict in advance on which side of the constitutional boundary they fell. The practical problems led the Supreme Court to carve out a “twilight zone.” Within that zone, the Supreme Court held there was concurrent jurisdiction and the injured worker might safely proceed under either the LHWCA or the state’s workmen’s compensation act at his election. Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942). In Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962), the Supreme Court held that the LHWCA was applicable in the “maritime but local” zone, even though there was little doubt that the state’s workmen’s compensation act could be applied validly. Thus, under the decisions of the Supreme Court, there came to be recognized zones in which both the federal statute and the relevant state statute were applicable. The Congress substantially extended the zone overlap when it adopted the 1972 amendments to the LHWCA. The immediate purpose of the Congress was to increase the level of compensation payments under the federal statute, but it was also concerned with the disparity between the levels of the enhanced compensation under the federal statute and the compensation available under the statutes of some of the maritime states. Longshoremen engaged in unloading or loading a vessel passed to and from ship and pier and it was thought to be inequitable to have marked differences in the level of available compensation depending upon whether the injury was suffered on shipboard or on the pier. Consequently it extended the coverage of the LHWCA to include injuries to longshoremen and other harbor workers suffered on piers adjoining navigable waters of the United States and other adjoining installations customarily used in loading, .unloading, repairing or building vessels. See 1972 U.S.Code, Cong. & Adm.News pg. 4698, et seq. The shoreward extension of the LHWCA in 1972 was not intended to set up an exclusive federal regime. It was an extension of previously recognized zones of overlapping federal and state authority. That was the holding of the Supreme Court in Sun Ship Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980). There the injured employees were clearly covered by the LHWCA, as amended in 1972, but Pennsylvania had increased the level of its workmen’s compensation benefits to the point that they exceeded those available under the LHWCA. The employees claimed benefits under the state statute, and the Supreme Court held they were entitled to the state benefits because of the concurrent applicability of the federal and state statutes. At the time of his injury, Garvin was working on the pier. No vessel was alongside, and it is not alleged that the fault of any vessel had contributed in any way to the condition of the unloading machine or to Garvin’s injury. Since the pier was adjacent to navigable waters of the United States, he was within the coverage of the LHWCA as extended in 1972, but he was also clearly within the coverage of the South Carolina Workmen's Compensation Act because piers have always been recognized as extensions of land within the authority of the state and not within the authority of the LHWCA until its extension in 1972. As demonstrated by Sun Ship, he was free to proceed under the state statute if that route appeared advantageous to him. He chose, of course, to claim the higher benefits available under the federal statute, and the question is whether that choice limits the defenses available to a contractor in the position of Alumax when faced with a tort action founded entirely upon South Carolina law. IV. Against this background of congressional concern to preserve and protect application by the states of their own workmen’s compensation schemes and the purpose of the LHWCA’s 1972 landward extension to “supplement,” not to “supplant,” state compensation acts, Sun Ship, supra, ■ we approach the particular problem of this case. On June 26, 1984 the decision of the Supreme Court in Washington Metropolitan Transit Authority v. Johnson, 467 U.S. 925, 104 S.Ct. 2827, 81 L.Ed.2d 768 (1984), was announced. There it appears that the WMTA, prompted by practical and financial considerations, had procured workmen’s compensation insurance for the employees of all of its many subcontractors. Faced with tort actions by some of those employees in the District of Columbia, WMTA claimed immunity under the LHWCA, and the Supreme Court held that a general contractor in the position of WMTA, and Alumax, was entitled to that tort claim immunity. As so interpreted, the LHWCA and South Carolina's Workmen’s Compensation Act were completely congruent. There was swift congressional reaction. By P.L. 98-426, signed on September 28, 1984, 33 U.S.C.A. § 905 was amended by adding a sentence “For purposes of this subsection, a contractor shall be deemed the employer of a subcontractor’s employee only if the subcontractor fails to secure the payment of compensation required by § 904 The Congress was of the view that LHWCA immunity should extend to a contractor only if he secured the payment of compensation for the employees of subcontractors by force of the statutory requirement of § 904. It was stipulated that the amendment should apply to pending cases. Hence, it is now perfectly clear that the LHWCA extends no immunity to Alumax. There is nothing in that amendment or its legislative history, however, to indicate a congressional intention to restrict the application of state created immunity of contractors in situations in which the state statute traditionally had been applied. It was necessary, of course, for the Congress in the LHWCA to deal in some fashion with employer immunity. That statute has exclusive application in the District of Columbia and to most injuries suffered on the navigable waters of the United States. In those areas, the Congress was free to determine for itself under what circumstances a general contractor would be immune from tort actions by employees of a subcontractor, but nothing done in the Congress suggests that it intended to modify immunities provided general contractors by state workmen’s compensation laws, when those laws are applicable. Except with respect to claims against vessels addressed in 33 U.S.C.A. § 905(b), the LHWCA does not address the substantive rights of claimants against third parties. There are housekeeping provisions in 33 U.S.C.A. § 933. The right to maintain a third party action will not be waived by the acceptance of benefits, and there are provisions for the management of any such third party action as between the injured person and his employer and for the distribution of any proceeds derived in the third party action between the injured employee and his employer or subrogated insurance carrier. The federal statute seeks to protect and preserve whatever rights an injured claimant may have against third parties and to provide the terms upon which an employer or its insurance carrier may be a participant in, and beneficiary of, the prosecution of such claims. The federal statute lays down some procedural rules, but it does not create any cause of action against a third party, except with respect to claims against vessels, or to define circumstances affecting the right of the insured claimant to prevail in any action that may be brought against a third party. As initially enacted, when the application of the LHWCA stopped at the water’s edge, the third party claim would usually be one in admiralty. When application of the federal statute was moved inland to supplement state workmen’s compensation statutes without displacing them, a third party claim under state law by a recipient of benefits under the LHWCA was not converted into a maritime claim. Its scope, including available defenses, is governed by state law. Thus in Holland v. Sea-Land Service, 655 F.2d 556 (4th Cir.1981), cert. denied 455 U.S. 919, 102 S.Ct. 1274, 71 L.Ed.2d 459 (1982), we held that the defendant, in an action brought by a recipient of benefits under the LHWCA for damages on account of injury for which he was receiving compensation, could defend on the basis of the state’s contributory negligence rule. A similar result was reached in Millspaugh v. Port of Portland, 65 Or.App. 389, 671 P.2d 743 (1983), in which it was held that Oregon’s rule of municipal immunity is applicable to such a claim. The Supreme Court itself left no doubt about the matter in Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971). The third party action, when founded on state law, is a creature of state law and is to be governed entirely by it. Indeed, in Ferri v. Ackerman, 444 U.S. 193, 100 S.Ct. 402, 62 L.Ed.2d 355 (1979), the Supreme Court stated with respect to such a third party claim by an LHWCA compensation recipient: When state law creates a cause of action, the state is free to define the defenses to the claim, including the defense of immunity, unless the state rule is in conflict with federal law. The South Carolina rule of immunity of a contractor in the position of Alumax is different from that under the LHWCA, but not in conflict with it, for Congress has not purported to prescribe the immunity rules to be applied by states in actions brought upon state law claims. The federal immunity rule is to be applied when the third party claim is a federal claim; when the third party claim is a state law claim, the immunity rules of that state are to be applied. The federal and state statutes are readily harmonized, and each may function in its own sphere without interference with the other. We are admonished not to seek out conflicts between federal and state laws “where none clearly exists” or to strike down state laws under the Supremacy Clause when application of the state law will result in no frustration of federal law. Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978); Colorado Anti-Discrimination Commission v. Continental Air Lines, Inc., 372 U.S. 714, 83 S.Ct. 1022, 10 L.Ed.2d 84 (1963); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); Gary Aircraft Corp. v. General Dynamics Corp., 681 F.2d 365 (5th Cir.1982). Congress has diligently attempted to preserve state law governance of state law third party claims by recipients of LHWCA compensation. Since there is no conflict between differing rules of immunity and application of South Carolina’s rule will not frustrate the effectiveness of any federal law, Alumax, the contractor, is immune from this state tort claim. V. The judgment of the district court is reversed and the case remanded with instruction to enter judgment for Alumax. The case may then proceed against the other defendants. REVERSED AND REMANDED. . The wife’s claim is derivative, and her pleadings and contentions track those of her husband. What we say of his claim applies also to hers. . The aftermath of Mottley is interesting. The case proceeded through the courts of Kentucky in which the Mottleys prevailed, but the Supreme Court then took the case to consider the federal questions it had refused to consider two years earlier. It then held that the federal statute required the Railroad to decline to renew its free passes and that the statute was constitutional as applied despite the fact that it deprived the Mottleys of part of the consideration for which, many years before, they had released their tort claims for damages for physical injury. See Louisville & Nashville Railroad Co. v. Mottley, 219 U.S. 467, 31 S.Ct. 265, 55 L.Ed. 297 (1911). . The Supreme Court’s decision in Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983), does not militate against our conclusion. There, the state of California sought a state declaratory judgment of the validity of its regulations, but alleged that the defendant claimed that enforcement and application of the regulations was precluded by federal preemption. The defendant undertook to remove the case to a United States district court. There, the preemption claim was clearly and exclusively defensive. Here, the plaintiff asserts federal preemption and alleges that his right of action is dependent upon it. The Supreme Court in Franchise Tax Board said there is federal jurisdiction to "hear ..those cases in which a well-pleaded complaint establishes ... that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law.” Id. at 27-28, 103 S.Ct. at 2855-56. This is such a case. See also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), where the plaintiff's claim was that the state laws regulating it were preempted. There, federal jurisdiction was upheld. Id. at 96 n. 14, 103 S.Ct. at 2899 n. 14. . See, e.g., Mountain Fuel Supply Co. v. Johnson, 586 F.2d 1375, 1381 (10th Cir.1978); Sweeney v. Abramovitz, 449 F.Supp. 213, 214 (D.Conn. 1978). See also Stone & Webster Engineering Corp. v. Ilsley, 690 F.2d 323, 328 (2d Cir.1982) (action for a declaratory judgment turns on construction of federal energy law); Chengfan Hsu v. Philippine Air Lines, Inc., 98 F.Supp. 805, 806 (N.D.Cal.1951) (state law negligence action "hinges” on construction of federal immigration law). 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_procedur

B

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTHWIRE COMPANY, Respondent. No. 21784. United States Court of Appeals Fifth Circuit. Nov. 1, 1965. Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Solomon I. Hirsh, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Theodore J. Martineau, Attorney, N. L. R. B., for petitioner. Frank M. Swift and Smith, Swift, Currie, McGhee & Hancock, Atlanta, Ga., for respondent. Before TUTTLE, Chief Judge, and BELL and COLEMAN, Circuit Judges. TUTTLE, Chief Judge. By this petition the Labor Board seeks enforcement of its order, which found that the respondent violated Section 8(a) (1), N.L.R.A. by promulgating an illegally broad rule barring solicitation and by publishing a coercive threat in its handbook for employees, and that the Company violated Section 8(a) (3) and (1), by discharging five employees because of union activities, and further, that the Company violated Section 8(a) (1) by unlawfully interrogating two employees. As background, it is relevant to note that the Board had previously held that this respondent had violated Section 8(a) (3) and (1) of the Act by discriminatorily discharging five employees and had violated Section 8(a) (1) by engaging in instances of unlawful interrogation. This prior finding was affirmed by this Court which ordered enforcement in N. L. R. B. v. Southwire Company, 5 Cir., 313 F.2d 638. Subsequently, the Board also found a violation of Section 8(a) (3) and (1) of the Act in the discharge of another employee because of union activities. The events that brought about the present unfair labor practice charges occurred in 1962 during an organization campaign conducted by the International Union of Electrical Radio and Machine Workers, AFL-CIO. A booklet distributed by the Company among its employees contained, among other things, a list of rules designed to bar activity involving solicitation and distribution in the plant. Under the heading, “No Solicitations,” this rule provides as follows: “No employee or any other person shall be permitted to solicit or promote subscriptions, pledges, memberships, or other types of support or co-operation for any drives, campaigns, causes, churches, corporations, individuals, or organizations, or to collect money for work purposes on company property. The distribution or circulation of leaflets, pamphlets, circulars or other literature are considered promotions within the meaning of this section and are not permitted. “This is not intended to prevent or prohibit personal discussion among employees on any subject during non-working time.” Elsewhere, on a different page in the booklet, is the following language under a heading called, “Statement on Unionism” : “No person will be allowed to solicit or carry on union or organizing activities on the job. Anybody who does so and who thereby neglects his own work or interferes with his or the work of others will be subject to discharge.” At a different place, under the policy declaration, “Statement on. Unionism,” is the following language: “We are convinced that wherever there are unions there is trouble, strife and discord and that a union would not work to our employees’ benefit but to their serious harm. In view of this, it is our positive intention to oppose unionism by every proper means.” Upon the hearing before the trial examiner, a showing was made to the effect that a part of the language in the Statement on Unionism had been changed in later editions of the company’s booklet. The language now in use is as follows: “We are convinced that wherever there are unions there is trouble, strife and discord and that a union would not work to our employees’ benefit. In view of this it is our positive intention to oppose unionism by every proper and legal means.” Dealing first with the charge that the No Solicitation rule of the company violated Section 8(a) (1) of the Act, we conclude that the Board’s findings in this respect are correct. It seems clear that a fair reading of this rule would cause an employee to believe that it was a violation of the company’s policy for him to do any of the forbidden things at any time at any place on the company’s property, for this is exactly what the first sentence says. The fact that this is modified by another paragraph that says, “This is not intended to prevent or prohibit personal discussion among employees on any subject during non-working time,” does not have the effect of enlarging the privilege of soliciting or promoting subscriptions during nonworking time on the company’s property. So construed, this rule is too broad and is violative of Section 8(a) (1) of the Act. Republic Aviation Corporation v. N. L. R. B., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 557; N. L. R. B. v. Walton Manufacturing Co., 5 Cir., 289 F.2d 177, 180; N. L. R. B. v. Linda Joe Shoe Co., 5 Cir., 307 F.2d 355, 357. The respondent made no attempt to prove special circumstances which would warrant such a broad No Solicitation rule. Cf. N. L. R. B. v. Babcock & Wilcox Co., 351 U.S. 105, 112, 113, 76 S.Ct. 679, 100 L.Ed. 975. Turning next to the Board's criticism that the Company’s statement that it is convinced that “wherever there are unions there is trouble, strife and discord,” and that a union would work to their employees’ serious harm, amounts to a coercive threat, we conclude that the Board reads too much into this language. This respondent seeks to leave no one in doubt of its opposition to unionization of its plant. This it has a right to do, so long as it does so in a fair presentation of its views. We need not decide whether the language used is in the nature of a “prediction,” cf. N. L. R. B. v. Transport Clearings, Inc., 5 Cir., 311 F.2d 519, 524, or a threat of conduct by the company that it would itself be responsible for causing the employees “serious harm,” if they should choose the union. Respondent has, wisely we think, eliminated this critical language. Under these circumstances we think it not necessary to enforce this part of the Board’s order by an injunction. We deal next with the discharges of five employees, four of whom were frankly discharged by the Company because of their violation of the No Solicitation rule. In each case the violation was slight, and in each case the Board found that the so-called solicitation of union membership occurred at a time when the employee was not on company time, and under circumstances where the employee’s work was not interfered with. As we must, in these circumstances, in the absence of a determination that there is no substantial evidence on the record to support the findings, we affirm the Board’s findings relative to the circumstances surrounding these acts of the four employees. Upon this determination, it follows that the discharge of these employees for violation of any invalid rule can not be supported, and the Board’s determination that they were discharged for purposes of discriminating against them as members of the union, must be affirmed. Next, as to the fifth discharge, we find a much closer question arising. The employee, Walker, placed three handwritten notices about the union on company bulletin boards. This was in violation of a valid company rule, for the violation of which the rule provided a penalty less than a discharge. The company representative, Martin, questioned Walker whether he had caused the notices to be placed on the bulletin board and Walker denied that he had done so. Having proved to his own satisfaction, by a handwriting expert, that Walker was not telling the truth, Martin caused him to be discharged on the ground of “gross insubordination * * * lying.” Upon the hearing before the trial examiner, Walker admitted that he had posted the notices, and thus proved the truth of Martin’s contention that he had made a false statement respecting the matter. We conclude that in light of this situation, it would be stretching the Board’s power of drawing inferences from the Company’s other anti-union conduct pretty far to approve its determination that this employee’s bad conduct was not the real ground for discharge, but that Walker was really fired for his union activities. Under the circumstances we can not affirm the part of the order requiring the rehiring of Walker. Finally, we come to the charge that the respondent illegally interrogated its employees concerning their “union membership, activities and desires.” Of course, an employer may not, by interrogation coerce or interfere with the right of an employee to adhere to the union. The interrogation that is here criticized resulted from questions asked by Martin, the personnel director, of employees who had reported to him about the solicitation of the employees who were later discharged for violating the anti-solicitation rule. We can not find any substantial evidence on the record as a whole to warrant a determination by the Board that this interrogation was intended to or did in fact unlawfully interfere with the rights of the employees within the meaning of Section 8(a) (1) of the Act. The respondent also complains that the Board’s order goes beyond the acts specifically found by the Board to have constituted unfair labor practices. The order in this proceeding, as recommended by the Trial Examiner, directed that the respondent should cease and desist from: “ ••• * * (c) in any like or related manner interfering with, restraining or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all of such activities.” In his discussion of the case, the Examiner stated that, “In view of the nature of the unfair labor practices committed, and in view of the finding of unfair labor practices committed in prior cases considered by the Board, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the respondent be ordered to cease and desist from in any manner fringing upon the rights guaranteed its employees in § 7 of the Act.” The Board, noting that the language in the actual order restricted the cease and desist order to respondent’s prospective conduct “in any like or related manner” directed that the words “like or related” to be eliminated and that the word “other” be substituted therefor, so that the respondent would be ordered to cease and desist from violating Section 7 in any other manner. While this Court has approved orders prohibiting conduct beyond the specific acts found by the Board to amount to unfair labor practices, when we found it appropriate to affirm the Board’s finding that the respondent had “demonstrated a proclivity to violate the act,” Truck Drivers & Helpers Local Union No. 728 v. N. L. R. B., 5 Cir., 332 F.2d 693, 697, our attention has not been called to any case in which we have approved an order as broad as that here urged upon us by the Board. This order would amount to an injunction against any violation of Section 7. We think the record before the Trial Examiner does not warrant an order of such breadth. We conclude, therefore, that the order, as actually entered by the Trial Examiner which limited its effectiveness as against conduct of a “like or related manner” is the widest permissible order that may appropriately be approved. See May Dept. Stores v. N. L. R. B., 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145, and N. L. R. B. v. Express Publishing Co., 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930. In addition to eliminating the reinstatement order as to the employee John T. Walker, the Board’s order must be amended in the following respect: The recommended order of the Examiner shall be the order of the Board except for the modification of Paragraph 1(b), as designated in the Board’s order. As modified, the Order will be enforced. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_genstand

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 civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. 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". WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY, Appellant, v. Sarah Estelle JACKSON, formerly Sarah Estelle Farris, Appellee. No. 16275. United States Court of Appeals Fifth Circuit. April 26, 1957. Rehearing Denied June 14, 1957. Wm. M. Howell, Charles Cook Howell, Jacksonville, Fla., Howell & Kirby, Jacksonvill Fla., of counsel> for appellant, Jack F. Wayman, Jacksonville, Fla., for appellee. Before TUTTLE, JONES and! BROWN, Circuit Judges. JONES, Circuit Judge. The appellant, Woodmen of the World Life Insurance Society, is a fraternal benefit society. It issues life insurance contracts which it calls certificates rather than policies, for premiums which it calls payments. Roland M. Farris was issued a certificate of insurance in the amount of $3,000 by the Society in 1945. On August 4, 1954, Virgil P. Miller, District Manager of the Society, called at the Farris home and talked about an educa- ,. , . ,¿Y tional insurance certificate lor the young son of Farris and his wife. This conversation being concluded, Miller discussed with Farris the need of the latter for additional insurance. An application was signed and a Preferred Risk Whole y-< i • r* i / L, • "u Life Certificate (which is substantially the same as an ordinary life policy, issued by a life insurance company) for .$2,000, with a twenty-year term benefit rider in the amount of $3,000 attached, was later issued and delivered to Farris. Farris died on December 23, 1954, of heart failure. Farris had a rheumatic heart disease dating back at least as far as November 1, 1948. The Society de-dined to make payment of the amount of the Certificate and tendered the amount of the payments which Farris had made. The tender was refused. His widow, Sarah Estelle Farris brought suit on the - Certificate and recovered judgment for $5,000 on the Certificate, $1,000 attorneys’ fees, interest and costs. The Society has appealed. The plaintiff married while the suit was pending and she is before us as the appellee, Sarah Estelle Jackson. , .. . . , The testimony was m sharp conflict , , , , , ,, as to what was said and done when the , , application for insurance was taken. Miller, the District Manager of the Society, testified that at the time of his meeting with Mr. and Mrs. Farris he had with him the form that was used in applying for insurance when no medical examination was had. Miller, so he testi-tied, asked Farris the questions as they appeared on the form, and the answers of Farris were written down by Miller. The form shows the question, “Have you, within the past ten years, had any mental or bodily disease or infirmity, or have you within that period of time, consulted, bcen attended or examined by a physifaf? If state wbicb> wben, giving *uil Particulars and name of physician, ^rris as noted by Miller, was N°- The form contained the question Are y°u now m sood health to the oest of y°ur k™^edf and beliffj If,not’ ^ve cause _ Mifier recorded Farris an- ” as bemS .Jes The form con-tamed a request that the applicant Give „ , , name and address of your personal phy- “ ■ Fa(rJls JSP™Se’ *^5“ by JÜ1Jas None ■ Jbe application containfd tbe ^presentation that I have ffd each of fo/egoing questions and the answers thereto, and represent that _ . . ^ „ fch °Jsald Jfu11’ complete and true whether written by my own hand or The a^wers to the questions quoted wefe untraf; JlUer sald Jat F“™ sJJed “ atlon J blank °n Yhlcb Miller, after returning to his office, typed m tbe answers as given to lum by Far- ™ and sJntQthe application to the home office of the Society in 0maha‘ The testimony of the widow of Farris, ^be beneficiary named in the certificate, was mucb different from that given by Miller- Her stOTy was tbat Miller save Farris the card of the doctor who was the examining physician for the Society. Farris stated that he had a rheumatic heart condition for which he had been treated some years before but he then felt fme. Miller stated he would put it through without a medical examination. In addition to the recital that the applicant had read the questions and an- ,. ,. , . . ,, „ , swers, the application contained the fol- . . lowing provision: _ ”1 have read each of the forego3n£ Questions and the answers there-3'°> and represent tbat each of said answers is full, complete and true, whether written by my own hand or no3:’ “All statements purporting to be made by the applicant shall be deemed representations and not warranties. “I further agree that no statement or information given by or to any person soliciting or taking this application, or by or to any other person, nor any knowledge possessed by any such person, shall be binding on this Society or in any manner affect its liability unless such statement or information be presented in writing to the Medical Director of said Society at the Home Office prior to the issu- . ance of said benefit certificate, and agree that there shall be no liability on the part of the Society for the payment of benefits unless the applicant shall have made at least one monthly payment to the Society for the benefit applied for, and unless this application shall have been approved by the Medical Director of the Society. ^ The certificate contained, on the outer-fold, this notice: important “No Camp or officer thereof nor any employee or representative of this Society has authority to waive any of the conditions of this benefit certificate or of the Constitution, Laws and By-Laws of the Society.” The certificate was issued “in consideration of the application therefor, includ,ing the statement of insurability.” A photostat copy of the application was attached to and made a part of the certificate. In Section 127 of the Society’s Constitution and Laws it is provided: “Sec. 127. (a) No employee, state manager, field man or agent of the Society or the Sovereign Camp, Head Camp or of any Camp, has the power, right or authority to waive any of the conditions upon which beneficiary certificates are issued, or to change, vary or waive any of the provisions of this Constitution or these Laws, nor shall any custom or course of dealing on the.part of any Financial Secretary or of any Camp or any number of Camps— with or without the knowledge of any officer of the Society — have the effect of so changing, modifying, waiving or foregoing such laws or requirements. Each and every beneficiary certificate is issued only upon the conditions stated in and sub-jeet to the Constitution and Laws, then in force or thereafter enacted, nor shall the knowledge or act of any employee of this Society constitute a waiver of the provisions of these laws by the Society or an es-toppel of this Society, «(b) The Articles of Incorpora-tíon> the Constitution, Laws and ByLaws of the Society> the application and medieal examinatioil) or decIaration of insurability, if accepted in lieu of medical examination, signed by tbe applicant> and all amend_ ments to each thereof) the benefit certificate, and any riders attached thereto or endorsements made thereon by the President or Secretary of the Society shall constitute the contract between the Society and the member.” The widow beneficiary of Farris brought suit in the Florida court and the Society removed to the Federal district court because of diversity. The plaintiff> in ber complaint alleged the issuance of the certificate, the death of the insured and the denial of liability by the Society. The Society answered asserting that the certificate was not in effect because of false statements and representations of the insured in his application. To this the plaintiff filed a reply asserting that the Society had waived and was estopped to assert the defense set forth in its answer because, it was alleged, full disclosures were made by the insured to Miller, the Society’s authorized agent, and no false answers were given nor were any misrepresentations made, that premiums were accepted with knowledge of the insured’s heart condition. At this juncture the Society moved, under Rule 15 Fed.Rules Civ. Proc., 28 U.S.C.A., to file an additional defense, inconsistent with its original defense as is permitted by Rule 8 Fed. Rules Civ.Proe. Leave of court being given, the additional defense was filed and by it the Society asserted that Far-ris told Miller of the rheumatic heart condition and Miller processed the application without medical examination, all of which was fraud, collusion and concealment on the part of the insured barring recovery. When all of the evidence had been presented the court declined to submit the Society's additional defense to the jury. The verdict of the jury having re~ solved the fact issues against the Society, it urges that reversal is required on three grounds; first, that the knowledge of the Society's agent Miller of the heart condition and medical history of the in~ sured Farris is not attributable to the Society; second, that Miller and Farris perpetrated a fraud on the Society; and third, that attorneys' fees are not recoverable in Florida against a fraternal benefit society. If the appellant were an insurance company we would have no doubt but that an affirmance would be required by the pronouncements of the Supreme Court of Florida. It has said: "The law in this state is that when the agent of an insurance company fills in an application for insurance, his act in doing so is the act of the company. If the applicant fully states the facts to the agent at the time and the agent writes the answers incorrectly or contrary to the facts stated by the applicant, the company is estopped from making a defense in an action on the policy by reason of the false answer." Stix v. Continental Assur. Co., 147 Fla. 783, 3 So.2d 703, 704. In the Stix case the court followed Massachusetts Bonding & Insurance Co. v. Williams, 123 Fla. 560, 167 So. 12, and distinguished Mutual Life Insurance Co. of New York v. Hilton-Green, 241 U.S. 613, 36 S.Ct. 676, 60 L.Ed. 1202. The rule was again announced in this language: "In this jurisdiction it is well settled that if the insured gives truthful answers to questions contained in the application for life insurance, and the company's agent, either through fraud or mistake, inserts answers in the application which do not accord with the information given, the insurer cannot insist on breach of warranty, but is estopped from making such defense." Colum-bian National Life Ins. Co. v. Lani-gan, 154 Fla. 760, 19 So.2d 67, 70. In a later case, Gulf Life insurance Co~ v. Ferguson, Fla., 59 So.2d 371, procedural questions controlled the decision. The appellant contends that as it is a fraternal benefit society the rule announced by the Stix case and those following it does not apply. By statute it is provided in Florida "Except as provided in this chapter, [Fia.Stat.Ann. ch. 637], such societies shall be governed by this chapter, and shall be exempt from all provisions of the insurance laws of this state, not only in governmental relations with the state, but for every other purpose, and no law hereafter enacted shall apply to them, unless they be expressly designated therein." Fla.Stat.Ann. § 637.11. The Society's Constitution and Laws, quoted supra, deny to its employees, state managers, field men and agents any power to waive any of the conditions upon which beneficiary certificates are issued. So also it is provided that the Articles of Incorporation, Constitution, Laws and By-Laws, the application and medical examination, or declaration of insurability, if accepted in lieu of medical examination, and the certificate shall constitute the contract. The statute authorizes such provisions. The statute declares: "The constitution and laws of the society may provide that no subordinate body, nor any of its subordinate officers or members shall have the power or authority to waive any of the provisions of the laws and constitution of the society, and the same shall be binding on the society and each and every member thereof and on all the beneficiaries of members.” Fla.Stat.Ann. § 637.30. The statute is valid. Grand Lodge Knights of Pythias, etc. v. Moore, 120 Fla. 761, 163 So. 108; Grand Lodge, Knights of Pythias of North America v. McKee, 5 Cir., 1938, 95 F.2d 474. But when we reach the conclu.sion that Miller, as the Society’s agent, had no right to waive any provision of the Society’s Constitution and Laws, we have not answered the question which is posed by the record. Farris signed a blank form. He gave, or at least the verdict of the jury requires us to assume that he gave Miller the correct answers. It was not shown that he knew or had reason to believe that false answers were to be written in over his signature. The knowledge of Miller, the agent, of the true facts and of the falsity of the answers, is imputed to his principal, the Society. Columbian National Life Ins. Co. v. Lanigan, supra. The Medical Director of the Society testified that all applications were delivered to and exam-med by him, and if he found the applicant to be an acceptable insurance risk he returned the application to the Secretary of the Society for the issuance of a certificate. It is the Society which, having the imputed knowledge of the true facts and of the falsity of the application, waives the requirements and assumes the obligations of the insurance contract. It is the Society which is es-topped to assert a defense by reason of the false answers. Stix v. Continental Assurance Co., supra. The district court properly excluded the fraud issue from consideration of the jury. The jury’s verdict and the court’s judgment included an attorneys’ fee of $1,000. The appellant takes the position that no attorneys’ fees are allowable against a fraternal benefit society, and so contending it points again to the statute which exempts such societies from all provisions of the insurance laws except as provided in Chapter 637, and that no law thereafter enacted shall apply to them unless they be expressly named therein. The general statutory law of Florida dealing with insurance contains a provision that: “Upon the rendition of a judgment or decree by any of the courts of this state against any insurer in favor of the beneficiary under any policy or contract of insurance ex-futed h? such “surer, there shall . °r decreed against such insurer, and in favor of the beneficiaiy named in said policy or contract ® insurance, a reasonable ^ sum as ^ees or compensation for his attorne^s. or solicitors prosecuting the SU1^ m which the recovery is had. “The amount to be recovered for fees and compensation for attorneys and solicitors against such insurer shall be ascertained and fixed by the court in chancery cases or a jury in common law actions, from testimony adduced for that purpose, and shall be included in the judgment or decree rendered in such cases.” Fla. Stat.Ann. § 625.08. Chapter 637 had itg origin in a compre_ hensive act pagsed in 191B Lawg of Florida, Actg 1915, ch. 6970. At that time attorneys> feeg might be awarded againgt «any Hfe or fire ingurance com_ pany». Lawg of Florida¡ Actg of lg93 Cb. 4173. In 1917 thig wag amended so ag to permit recovery of attorneys’ fees againgt »any pers company; eorpora. tíon> co-partnership, association, fraternal benefit societieg or others » Laws of Fiorida> Acts of 1917 ch. 7295. In tbe statutory revision of 1941 the quoted wordg inaerted in 1917 were deleted and for them wag substituted “any insurer”, Laws of Florida, Acts of 1941, Ch. 20719. “Insurer” is defined as “any person, firm, partnership, association, corporation or other organization or group who issue, or enter into, contracts or policies of insuranee, indemnity or surety with another who is called the insured.” Fla.Stat. Ann. § 625.01(6). This definition, adopted by the 1941 compilation, does not ex-pressly designate fraternal benefit societies and, it being subsequent to the 1915 enactment, they would be excluded from it. The 1915 statutes, as amended in the interim, were incorporated in the 1941 compilation. In such a case we look behind the revision to ascertain which act of the legislature is expressive of its intent. See Lykes Bros. v. Bigby, 155 Fla. 580, 21 So.2d 37. We are of the opinion that the statutory provision authorizing recovery of attorneys’ fees does not apply to actions against fraternal benefit societies. In the absence of statutory authority or a contract provision attorneys fees cannot be recovered, 46 C.J.S. Insurance § 1405b, p. 712. As to that part of the judgment for the amount of the certificate with interest thereon and costs, it is affirmed; as to that part providing for attorneys’ fees it is reversed. One-sixth of the costs of the appeal shall be taxed to the appellee and the remainder to the appellant. Affirmed in part and reversed in part, Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

sc_partywinning

A

What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. UNITED STATES v. MOTTAZ No. 85-546. Argued April 22, 1986 Decided June 11, 1986 Blackmun, J., delivered the opinion for a unanimous Court. Edwin S. Kneedler argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Habicht, Deputy Solicitor General Wallace, and David C. Shilton. Derek Amerman argued the cause for respondent. With him on the brief was Leonard A. Zolna, Jr John C. Christie, Jr., J. William Hayton, Stephen J. Landes, and Lucinda 0. McConathy filed a brief for The American Land Title Association as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the Navajo Tribe of Indians by Paul E. Frye; and for Katherine Nichols et al. by Kim Jerome Gottschalk. Justice Blackmun delivered the opinion of the Court. The question presented by this case is whether respondent’s suit against the United States is time barred. In 1954, the Government sold respondent’s interests in three Indian allotments to the United States Forest Service for inclusion in the Chippewa National Forest in Minnesota. Respondent claims that the sale was void. We hold that respondent’s suit is an action “to adjudicate a disputed title to real property in which the United States claims an interest,” within the meaning of the Quiet Title Act of 1972, 28 U. S. C. §2409a(a), and therefore is barred by that Act’s 12-year period of limitations. See 28 U. S. C. §2409a(f). I In 1905, pursuant to the General Allotment Act of 1887, 24 Stat. 388, as amended, 25 U. S. C. §331 et seq. (1982 ed. and Supp. II), and the Nelson Act of 1889, 25 Stat. 642, three Chippewa Indian ancestors of respondent Florence Blacketter Mottaz each received an 80-acre allotment on the Leech Lake Reservation in Cass County, Minn. Title to each of these allotments was held in trust by the United States. Respondent eventually inherited a one-fifth interest in one of the allotments and a one-thirtieth interest in each of the other two. In the early 1950’s, some holders of fractional interests in Leech Lake allotments petitioned the Department of the Interior to permit them to sell their lands. On April 30, 1953, the Department’s Office of Indian Affairs sent respondent two forms, captioned “Consent to Sale of Inherited Lands.” App. 42, 43. Accompanying the forms was a letter which read in part: “As stated before, some of the owners have requested the sale of this land. Both land and timber, if any, have been appraised; and as soon as we get the consent to sell, an effort will be made to obtain a buyer by advertising for sale bids. This land will not be sold unless the high bid is equal to, or more than, the appraised value. If no reply is received from you within ten (10) days, it will be assumed that you have no objection to the sale.” Id., at 15. The consent forms indicated that one of the allotments was appraised at $420.50 and the other at $605.75. Respondent neither replied to the letter nor returned the consent forms. In 1954, despite the lack of express consent from every person who held an interest in any of the three allotments, the Government sold them to the United States Forest Service. Respondent visited the regional office of the Bureau of Indian Affairs in May 1967 and expressed an interest in selling her inherited Indian lands. Later that month, the realty officer sent her a letter informing her of her allotment interests. The letter did not mention the Leech Lake allotments. Id., at 17. Respondent in 1981 again requested a list of her interests. In its reply, the Bureau set forth the allotments currently held in trust for her and, in addition, noted that she once had held interests in the Leech Lake allotments which had been sold by the Secretary as part of the so-called “Secretarial Transfer” program. Id., at 44-45. II In 1981, respondent filed suit against the United States in the Federal District Court for the District of Minnesota. She claimed jurisdiction under 25 U. S. C. § 345, 28 U. S. C. §§1331, 1346, 1353, and 2415, and the Fifth Amendment. App. 7. She alleged that the sales of her three Leech Lake allotments “made without [her] consent or permission . . . were, therefore, illegal sales and transfers and are void.” Id., at 8. In addition, respondent raised four other claims regarding the sale: that the United States had breached its fiduciary duty in selling lands held in trust for her without first obtaining her consent; that the United States had acted negligently in selling her lands; that she had been deprived of property without due process; and that her property had been taken for public use without just compensation. Id., at 10. Respondent also sought to represent both a nationwide and a Minnesota-based class of similarly situated Indian claimants. Id., at 8-9. Respondent originally sought either “[d]amages in a monetary sum equal to the current fair market value of each parcel illegally transferred” or “rescission of the illegal sale or transfer and the vesting of title of each individual parcel in the names of the appropriate descendants, heirs and assigns.” Id., at 10. After a preliminary hearing, she voluntarily dismissed, without prejudice, her claim requesting rescission. Id., at 12. The District Court ruled that respondent’s claims were barred by 28 U. S. C. § 2401(a), the general statute of limitations governing actions against the United States. That section provides, in pertinent part, that “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” The court held that respondent’s cause of action first accrued when she learned of the sale of the lands. Since respondent’s deposition “clearly reveal[ed] that she had knowledge of the sale in 1954,” App. to Pet. for Cert. 10a, her suit, filed 27 years after the sale, was barred. The Court of Appeals reversed and remanded. 753 F. 2d 71 (CA8 1985). While it recognized that respondent’s complaint was somewhat opaque, it rejected the Government’s claim that respondent was seeking, not simply to establish title to the allotments, but also to obtain damages for alleged negligence and breach of fiduciary duty: the complaint “must be read as raising the one essential claim that her land was sold without her consent, that she did not receive payment for her land, and that accordingly the sale was void and she retains title to the land.” Id., at 75. The claim for damages equal to the current fair market value of the land “must be construed as equivalent to a claim for return of the land itself.” Ibid. The Court of Appeals ruled that such a claim could not be time barred. This Court in Ewert v. Bluejacket, 259 U. S. 129 (1922), had held that the sale of an allotment to a Government agent in violation of federal law is “ ‘void and confers no right upon the wrongdoer,’” id., at 138, quoting Waskey v. Hammer, 223 U. S. 85, 94 (1912), and had refused to apply principles of laches to bar the Indians’ claim against Ewert. Although Ewert v. Bluejacket did not consider whether federal statutes of limitations apply to land claims brought by Indian allottees, the Court of Appeals found that § 2401(a) “does not bar claims of title to allotments because Ewert is based on the principle that, if the underlying sale of land is void, the concept that a cause of action ‘accrues’ at some point is inapplicable because the allottee simply retains title all along.” 753 F. 2d, at 74. Thus, the Court of Appeals concluded that the statute of limitations question depended on the resolution of several preliminary issues. It therefore remanded the case to the District Court to determine whether the Secretary lacked the authority in 1954 to sell respondent’s lands without her consent, and, if such a sale would have been unauthorized, whether respondent either had consented or had actually received payment following the sale, in which case her consent could be inferred. If respondent proved on remand that the sale was illegal, then, “[i]n light of the land’s inclusion within the Chippewa National Forest and the thirty years which have passed since the sale, . . . she may force the government to pay her the fair market value of the land rather than to simply return the land itself.” Id., at 75. The Government petitioned for rehearing and rehearing en banc. In its petition, the Government claimed, apparently for the first time, that respondent’s suit to recover land currently held by the United States was barred, not by the general 6-year statute of limitations in § 2401(a), but rather by the 12-year limitations period established by the Quiet Title Act. 2 Record 16. In addition, the Government argued that the Court of Appeals’ holding that respondent could compel the United States to pay her the fair market value of her property involved relief “of the type typically provided by the Tucker Act,” ibid., but a Tucker Act claim would clearly be barred by the 6-year statute of limitations. The Court of Appeals denied the Government’s petition. App. to Pet. for Cert. 13a. Because of the importance of the issue, we granted certiorari to consider whether respondent’s claim was barred under either § 2401(a) or §2409a(f), the limitations provision governing Quiet Title Act claims. 474 U. S. 994 (1985). Ill When the United States consents to be sued, the terms of its waiver of sovereign immunity define the extent of the court’s jurisdiction. United States v. Sherwood, 312 U. S. 584, 586 (1941). In particular, “[w]hen waiver legislation contains a statute of limitations, the limitations provision constitutes a condition on the waiver of sovereign immunity.” Block v. North Dakota, 461 U. S. 273, 287 (1983). Neither the District Court nor the Court of Appeals discussed the precise source of its jurisdiction, and the parties at various times before this Court have identified the jurisdictional basis of respondent’s suit as the Quiet Title Act, 28 U. S. C. §§ 1346(f) and 2409a; the Allotment Acts, 25 U. S. C. §345 and 28 U. S. C. § 1353; and the Tucker Act, 28 U. S. C. § 1346(a)(2). Thus, we must decide which, if any, of these statutes conferred jurisdiction on the District Court and the Court of Appeals, and then determine whether respondent’s suit was brought within the relevant limitations period. A In Block v. North Dakota, 461 U. S., at 286, this Court held that “Congress intended the QTA to provide the exclusive means by which adverse claimants could challenge the United States’ title to real property.” Here, respondent contests the United States’ claim that it acquired title to the allotments in 1954. We think that respondent’s suit falls within the scope of the Quiet Title Act, 28 U. S. C. § 2409a(a), which governs “civil action[s] ... to adjudicate a disputed title to real property in which the United States claims an interest.” Respondent’s description of her claim clearly brings it within the Act’s scope: “At no time in this proceeding did respondent drop her claim for title. To the contrary, the claim for title is the essence and bottom line of respondent’s case. Her position is simply that the land remains in the name of Mottaz and the other heirs of the property despite what some pieces of paper executed by petitioner without her consent and without a court hearing purport to do.” Brief for Respondent 3. See also 753 F. 2d, at 74, 75. The relief respondent seeks confirms this characterization of her suit. Respondent does not seek recovery of her share of the proceeds realized by the United States from the 1954 sale but allegedly never distributed. A claim for monetary damages in that amount would involve a concession that title had passed to the United States Forest Service in 1954 and that the sole issue was whether respondent was fairly compensated for the taking of her interests in the allotments. Rather, respondent demands damages in the amount of the current fair market value of her interests. What respondent seeks is a declaration that she alone possesses valid title to her interests in the allotments and that the title asserted by the United States is defective, and an order requiring the United States to pay her the value of her interest today in order properly to transfer title. Nonetheless, respondent claims that her suit is not governed by the Quiet Title Act because, by its own terms, that Act “does not apply to trust or restricted Indian lands,” § 2409a(a), such as the lands in which she asserts an interest. Respondent misconstrues this exclusion, which operates solely to retain the United States’ immunity from suit by third parties challenging the United States’ title to land held in trust for Indians. See, e. g., S. Rep. No. 92-575, p. 6 (1971); H. R. Rep. No. 92-1559, p. 13 (1972); Dispute of Titles on Public Lands, Hearing on S. 216, S. 579, and S. 721 before the Subcommittee on Public Lands of the Senate Committee on Interior and Insular Affairs, 92d Cong., 1st Sess., 19 (1971). Thus, when the United States claims an interest in real property based on that property’s status as trust or restricted Indian lands, the Quiet Title Act does not waive the Government’s immunity. Here, however, the United States claims an interest in the Leech Lake lands, not on behalf of Indian beneficiaries of a trust, but rather on behalf of the United States Forest Service and the Chippewa National Forest. Thus, the Act provides the United States’ consent to suit concerning its claim to these lands, provided, of course, that the plaintiff challenging the Government’s title meets the conditions attached to the United States’ waiver of immunity. The limitations period is a central condition of the consent given by the Act. See, e. g., Block, 461 U. S., at 283-285; H. R. Rep. No. 92-1559, supra, at 5, 7-8. The Act provides: “Any civil action under this section shall be barred unless it is commenced within twelve years of the date upon which it is accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.” 28 U. S. C. §2409a(f). The District Court expressly found that respondent knew of the sale in 1954. Moreover, the list of interests provided to respondent by the Bureau of Indian Affairs in 1967 did not include any of the three Leech Lake allotments. Thus, by 1967, at the very latest, respondent was on notice that the Government did not recognize her title to the allotments. Whether respondent actually knew that the allotments had been included within the Chippewa National Forest and thus were claimed by the United States, her undisputed knowledge that the Government no longer recognized her as having a valid claim to the allotments satisfies the “should have known” prong of § 2409a(f)’s accrual test. Her claim is therefore barred. B Respondent, however, seeks to avoid the carefully crafted limitations of the Quiet Title Act by characterizing her suit as a claim for an allotment under the General Allotment Act of 1887, 24 Stat. 388, as amended, 25 U. S. C. § 331 et seq. (1982 ed. and Supp. II). That Act grants jurisdiction to the district courts over suits “involving the right ... to any allotment.” 25 U. S. C. §345. Respondent claims that the general 6-year statute of limitations governing all civil actions against the Government, 28 U. S. C. § 2401(a), does not apply to cases brought under the General Allotment Act, and that her claim therefore cannot be time barred. We need not reach the question whether § 2401(a) applies to claims brought under § 345 of the General Allotment Act, and, if it does, when a cause of action begins to run, since we conclude that respondent cannot use §345 for a quiet title action against the Government. Section 345 grants federal district courts jurisdiction over two types of cases: (i) proceedings “involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty,” and (ii) proceedings “in relation to” the claimed right of a person of Indian descent to land that was once allotted. Section 345 thus contemplates two types of suits involving allotments: suits seeking the issuance of an allotment, see, e. g., Arenas v. United States, 322 U. S. 419 (1944), and suits involving “‘the interests and rights of the Indian in his allotment or patent after he has acquired it,’” Scholder v. United States, 428 F. 2d 1123, 1129 (CA9), cert. denied, 400 U. S. 942 (1970), quoting United States v. Pierce, 235 F. 2d 885, 889 (CA9 1956). The structure of §345 strongly suggests, however, that § 345 itself waives the Government’s immunity only with respect to the former class of cases: those seeking an original allotment. In those suits, §345 provides that “the parties thereto shall be the claimant as plaintiff and the United States as party defendant” (emphasis added), while, as to the latter class of cases, no mention of the United States’ participation is made. Accordingly, in Affiliated Ute Citizens v. United States, 406 U. S. 128 (1972), this Court held that, to the extent that § 345 involves a waiver of federal immunity, as opposed to a grant of subject-matter jurisdiction to the district courts, that section “authorizes, and provides governmental consent for, only actions for allotments.” 406 U. S., at 142 (emphasis added). See also Naganab v. Hitchcock, 202 U. S. 473 (1906) (sovereign immunity precludes suit against United States regarding disposition of Indian lands). That federal courts may have general subject-matter jurisdiction over claims to quiet title to allotments brought by Indians, see n. 9, supra, does not therefore mean that the United States has waived its immunity in cases where an Indian challenges the United States’ claim of title in its own right. As the Court already has noted, Congress intended the Quiet Title Act “to provide the exclusive means by which adverse claimants [can] challenge the United States’ title to real property.” Block, 461 U. S., at 286. In Block, the State of North Dakota sued the federal officers responsible for supervising a riverbed within the State which both the State and the Federal Government claimed to own and sought an injunction barring them from exercising privileges of ownership over the bed. The Court held that such an “officer’s suit” was precluded since it would circumvent the “carefully crafted provisions of the QTA deemed necessary for the protection of the national public interest.” Id., at 284-285. To permit challenges to the Government’s claim of title to be brought under other jurisdictional provisions might mean that “the QTA’s 12-year statute of limitations, the one point on which the Executive Branch was most insistent, could be avoided, and, contrary to the wish of Congress, an unlimited number of suits involving stale claims might be instituted.” Id., at 285. Moreover, to permit officer’s suits might thwart Congress’ determination that the Government be given the option of paying just compensation and thereby keeping land even after an adverse judgment, see § 2409a(b), in order to avoid disruption of ongoing federal activities involving the disputed property. 461 U. S., at 285. To permit suits against the United States under the General Allotment Act poses similar dangers. Not only could it permit plaintiffs to avoid the Quiet Title Act’s 12-year statute of limitations, but it could also seriously disrupt ongoing federal programs. The remedial clause of the General Allotment Act provides that a judgment in favor of an Indian claimant “shall have the same effect... as if such allotment had been allowed and approved by [the Secretary of the Interior].” 25 U. S. C. § 345. Thus, if plaintiffs were permitted to sue under the General Allotment Act, they would be entitled to actual possession of the challenged property. This would pose precisely the threat to ongoing federal activities on the property that the Quiet Title Act was intended to avoid. That the plaintiff in this case claims the right to elect a remedy that would not require the Government to relinquish its possession of the disputed lands is irrelevant: the Quiet Title Act expressly gives that choice to the Government, not the claimant. 28 U. S. C. §2409a(b). In light of Congress’ purposes in enacting the Quiet Title Act, we cannot conclude that Congress intended to permit persons in respondent’s position to avoid that Act’s strictures. C At oral argument, respondent claimed that her case is based solely on the General Allotment Act. See Tr. of Oral Arg. 23, 26. Nevertheless, at various times during this litigation, both parties have identified the Tucker Act as providing a source of federal jurisdiction over respondent’s claims. Although respondent and the Government apparently agree that a suit based on the Tucker Act would be barred by the general 6-year statute of limitations, 28 U. S. C. § 2401(a), we must address the possibility that the District Court’s jurisdiction rested on the Tucker Act because, if it did, the Court of Appeals for the Eighth Circuit may have lacked jurisdiction over respondent’s appeal. Prior to the passage of the Quiet Title Act, adverse claimants had resorted to the Tucker Act to circumvent the Government’s immunity from quiet title suits. Rather than seeking a declaration that they owned the property at issue, such claimants would concede that the Government possessed title and then would seek compensation for the Government’s having taken the property from them. See Block, 461 U. S., at 280-281; H. R. Rep. No. 92-1559, at 9, 12. In light of the Quiet Title Act’s explicit statement that § 2409a(a) does not “apply to or affect actions which may be or could have been brought under sections 1346 . . . [or] 1491 ... of this title,” we cannot conclude that Tucker Act-based suits, like the officer’s suit at issue in Block, are clearly precluded by the passage of the Quiet Title Act. But regardless of whether other claimants may invoke the district courts’ Tucker Act jurisdiction to hear their claims, it is clear that respondent has not brought a case falling within the scope of the Tucker Act. In Healy v. Sea Gull Specialty Co., 237 U. S. 479, 480 (1915), Justice Holmes, writing for a unanimous Court, stated that “the plaintiff is absolute master of what jurisdiction he will appeal to,” and noted that “[jjurisdiction generally depends upon the case made and relief demanded by the plaintiff.” Thus, since the “essential features,” id., at 481, of Healy’s case involved allegations of patent infringement and a request for the relief characteristically provided by patent law, Healy could invoke federal patent law jurisdiction despite the fact that the measure of damages was fixed by contract. Respondent now invokes federal jurisdiction only under the General Allocation Act and its jurisdictional counterpart. Moreover, the case she has made, and the relief she seeks, do not fit within the scope of the Tucker Act. A Tucker Act-based lands suit would seek damages equal to just compensation for an already completed taking of the claimant’s land. See, e. g., Block, 461 U. S., at 280-281; H. R. Rep. No. 92-1559, at 7, 9, 12-13. As we have noted, however, respondent is not seeking whatever compensation she allegedly was denied in 1954. Rather, she claims she still owns her interests in the allotments, and she seeks to force the Government to buy those interests. She claims, in essence, that no legally cognizable taking has yet occurred. See Brief for Respondent 3-4. Respondent and the Court of Appeals view payment rather than return of the land as an appropriate remedy because respondent’s allotments now lie within the Chippewa National Forest. But neither views this payment as representing damages for the Government’s past acts, the essence of a Tucker Act claim for monetary relief. See, e. g., United States v. Mitchell, 463 U. S. 206 (1983). Since this Indian respondent’s claim was not based on the Tucker Act, her appeal to the Court of Appeals for the Eighth Circuit was proper. IV Federal law rightly provides Indians with a range of special protections. But even for Indian plaintiffs, “[a] waiver of sovereign immunity ‘cannot be lightly implied but must be unequivocally expressed.’” United States v. Mitchell, 445 U. S. 535, 538 (1980), quoting United States v. King, 395 U. S. 1, 4 (1969). Congress has consented to a suit challenging the Federal Government’s title to real property only if the action is brought within the 12-year period set by the Quiet Title Act. The limitations provision of the Quiet Title Act reflects a clear congressional judgment that the national public interest requires barring stale challenges to the United States’ claim to real property, whatever the merits of those challenges. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. For a general discussion of the allotment program, see F. Cohen, Handbook of Federal Indian Law 612-632 (1982). By the Act of May 14, 1948, ch. 293, 62 Stat. 236, 25 U. S. C. §483, the Secretary of the Interior “is authorized in his discretion, and upon application of the Indians owners ... to remove restrictions against alienation, and to approve conveyances, with respect to lands or interests in lands held by individual Indians.” No contemporaneous document concerning the third allotment appears in the record. In the late 1970’s, the Bureau sought to identify potential land claims that might be affected by the statute of limitations set forth in 28 U. S. C. § 2415 (1982 ed. and Supp. II), which pertains, among other things, to certain contract and tort actions brought by the United States on behalf of Indians. (In 1982, § 2415 was amended to apply, as well, to contract and tort claims brought by individual Indians and tribes.) The Bureau identified as “Secretarial transfers” those sales made without the consent of all the heirs. See H. R. Rep. No. 97-954, p. 7 (1982); see generally County of Oneida v. Oneida Indian Nation, 470 U. S. 226, 242-243 (1985) (discussing § 2415 claims). The District Court also rejected respondent’s arguments that § 2401(a) does not apply to suits by Indians for breach of fiduciary duties, and that § 2415’s special provisions dealing with Indian land claims override the general statute of limitations established by § 2401(a). With respect to the former claim, the court stated: “By its very terms 28 U. S. C. § 2401(a) applies to ‘every civil action commenced against the United States. . . . ’” App. to Pet. for Cert. 10a (emphasis in District Court opinion). With respect to the latter claim, the court held that §2415 “applies to actions brought on behalf of a recognized tribe or individual Indian” by the United States (emphasis in original). App. to Pet. for Cert. 10a. It does not, however, “permit claims against the United States.” Id., at 10a-lla (emphasis in original). In urging that such an exemption be included in the Quiet Title Act, the Solicitor for the Department of the Interior noted that excluding suits against the United States seeking title to lands held by the United States in trust for Indians was necessary to prevent abridgment of “solemn obligations” and “specific commitments” that the Federal Government had made to the Indians regarding Indian lands. A unilateral waiver of the Federal Government’s immunity would subject those lands to suit without the Indians’ consent. See H. R. Rep. No. 92-1559, p. 13 (1972). Our finding that respondent's cause of action accrued more than 12 years prior to her filing suit does not rest on the fact that the letter sent by the Government in 1953 informed respondent that the failure to reply within 10 days would be deemed a consent to the sale. That letter expressly noted that the land would be sold only if a bid of at least its appraised value were received. App. 15. It therefore was entirely possible that no sale would occur even if respondent expressly had consented to the sale. Respondent’s cause of action accrued only because she in fact knew that a sale had been completed and knew, or should have known, that the Government was the purchaser. Title 25 U. S. C. § 345 reads in full: “All persons who are in whole or in part of Indian blood or descent who are entitled to an allotment of land under any law of Congress, or who claim to be so entitled to land under any allotment Act or under any grant made by Congress, or who claim to have been unlawfully denied or excluded from any allotment or parcel of land to which they claim to be lawfully entitled by virtue of any Act of Congress, may commence and prosecute or defend any action, suit, or proceeding in relation to their right thereto in the proper district court of the United States; and said district courts are given jurisdiction to try and determine any action, suit, or proceeding arising within their respective jurisdictions involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty (and in said suit the parties thereto shall be the claimant as plaintiff and the United States as party defendant); and the judgment or decree of any such court in favor of any claimant to an allotment of land shall have the same effect, when properly certified to the Secretary of the Interior, as if such allotment had been allowed and approved by him, but this provision shall not apply to any lands now held by either of the Five Civilized Tribes, nor to any of the lands within the Quapaw Indian Agency: Provided, That the right of appeal shall be allowed to either party as in other cases.” A corresponding provision governing district court jurisdiction appears in 28 U. S. C. § 1353. Respondent invoked jurisdiction under both § 345 and § 1353 in her complaint. App. 7. In fact, § 345 has been used by Indians to sue parties other than the United States to quiet title to land originally given under various allotment schemes. See, e. g., Begay v. Albers, 721 F. 2d 1274 (CA10 1983); Vicenti v. United States, 470 F. 2d 845 (CA10 1972), cert. dism’d, 414 U. S. 1057 (1973) (plaintiffs sought recovery of title from private parties; suit against the United States for damages held barred by sovereign immunity). To hold that in all cases brought under § 345 the United States must be named as a party defendant would restrict the access to federal courts afforded Indians raising claims or defenses involving their land entitlements because the United States would obviously not be a proper party in many private disputes that relate to land claims originally granted by various Allotment Acts. The Indian Claims Limitation Act of 1982, 96 Stat. 1976, which amended 28 U. S. C. § 2415(a), essentially tolls— for a time — the general 6-year statute of limitations for many damages actions that may be brought by the Federal Government on behalf of Indians. Respondent claims that § 2415 also shows that Congress did not intend the general 6-year statute of limitations for damages actions brought against the Federal Government, 28 U. S. C. § 2401, to apply to her claim. But § 2415 is expressly inapplicable to actions “to establish the title to, or right of possession of, real or personal property.” 28 U. S. C. § 2415(c). In County of Oneida v. Oneida Indian Nation, 470 U. S., at 240-241, the Court concluded that Indian land claims not subject to any federal limitations period were presumptively exempt from state statutes of limitations as well. Respondent’s claim, however, is based on a particular federal statute — the Quiet Title Act — that contains its own limitations period. Under 28 U. S. C. § 1295(a)(2), the Court of Appeals for the Federal Circuit possesses exclusive jurisdiction over an appeal from a district court’s decision “if the jurisdiction of that court was based, in whole or in part, on section 1346 of this title, except that jurisdiction of an appeal in a case brought in a district court under section 1346(a)(1), 1346(b), 1346(e), or 1346(f) of this title or under section 1346(a)(2) when the claim is founded upon an Act of Congress or a regulation of an executive department providing for internal revenue shall be governed by sections 1291,1292, and 1294 of this title [the provisions granting jurisdiction to the regional courts of appeals].” Thus, if the District Court’s jurisdiction here depended on the Tucker Act, § 1346(a)(2), then the Eighth Circuit lacked jurisdiction over respondent’s appeal, and we would have to vacate its’judgment and remand the case with directions to transfer the appeal pursuant to 28 U. S. C. § 1631 to the Federal Circuit. See, e. g., Ballam v. United States, 474 U. S. 898 (1986); Pacyna v. Marsh, 474 U. S. 1078 (1986). In light of our conclusion that the District Court’s jurisdiction was not based on the Tucker Act, but instead rested on § 1346(f) (Quiet Title Act claims), we need not reach the difficult and unsettled question of how an appeal raising both issues committed to the Federal Circuit’s jurisdiction and issues outside its jurisdiction is to be treated. See, e. g., S. Rep. No. 97-275, pp. 19-20 (1981); H. R. Rep. No. 97-312, p. 41 (1981); Court of Appeals for the Federal Circuit — 1981, Hearings on H. R. 2405 before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 97th Cong., 1st Sess., 90 (1981) (testimony of James W. Geriak); Cihlar & Goldstein, A Dialogue About the Potential Issues in the Patent Jurisdiction of the Court of Appeals for the Federal Circuit, 10 APLA Q. J. 284 (1982); Drabiak, Jurisdiction of the New Court of Appeals for the Federal Circuit, 73 Ill. B. J. 218 (1984); Newman, Tails and Dogs: Patent and Antitrust Appeals in the Court of Appeals for the Federal Circuit, 10 APLA Q. J. 237 (1982) (all discussing the issue in the context of patent appeals that also raise antitrust claims). In particular, we express no opinion on the question whether, since § 1295(a)(2) explicitly disclaims Federal Circuit jurisdiction over claims based on § 1346(f), and the Federal Circuit is a court of limited jurisdiction, see H. R. Rep. No. 97-312, swpra, at 39, an appeal in a case raising both Tucker Act and Quiet Title Act claims would have to be bifurcated and sent in part to the regional circuit and in part to the Federal Circuit. Cf. S. Rep. No. 97-275, supra, at 20. The broad reference to “seetio[n] 1346” is somewhat opaque. Section 1346(f), in fact, grants the district courts “exclusive original jurisdiction of civil actions under section 2409a.” The exclusion in § 2409a therefore cannot be read to include all suits that can be brought under § 1346. We think, however, that the exclusion of suits brought under § 1491 — the Tucker Act provision granting the Claims Court jurisdiction — supports finding a similar exclusion of suits brought under § 1346(a)(2) — the analogous district court provision. 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:

sc_caseorigin

117

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. BLUE SHIELD OF VIRGINIA et al. v. McCREADY No. 81-225. Argued March 24, 1982 Decided June 21, 1982 Bkennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, and Powell, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and O’Connor, J., joined, post, p. 485. Stevens, J., filed a dissenting opinion, post, p. 492. Griffin B. Bell argued the cause for petitioners. With him on the briefs were James D. Miller, William B. Poff, Ronald M. Ayers, Hernán A. Marshall III, Joel I. Klein, and H. Bartow Farr III. Warwick R. Furr II argued the cause for respondent. With him on the brief were Timothy J. Bloomfield and Thomas M. Brownell. Paul R. Friedman, Bruce J. Ennis, and Donald N. Bersoff filed a brief for the American Psychological Association as amicus curiae urging affirmance. Justice Brennan delivered the opinion of the Court. The antitrust complaint at issue in this case alleges that a group health plan’s practice of refusing to reimburse subscribers for psychotherapy performed by psychologists, while providing reimbursement for comparable treatment by psychiatrists, was in furtherance of an unlawful conspiracy to restrain competition in the psychotherapy market. The question presented is whether a subscriber who employed the services of a psychologist has standing to maintain an action under § 4 of the Clayton Act based upon the plan’s failure to provide reimbursement for the costs of that treatment. HH From September 1975 until January 1978, respondent Carol MeCready was an employee of Prince William County, Va. As part of her compensation, the county provided her with coverage under a prepaid group health plan purchased from petitioner Blue Shield of Virginia (Blue Shield). The plan specifically provided reimbursement for a portion of the cost incurred by subscribers with respect to outpatient treatment for mental and nervous disorders, including psychotherapy. Pursuant to this provision, Blue Shield reimbursed subscribers for psychotherapy provided by psychiatrists. But Blue Shield did not provide reimbursement for the services of psychologists unless the treatment was supervised by and billed through a physician. While a subscriber to the plan, McCready was treated by a clinical psychologist. She submitted claims to Blue Shield for the costs of that treatment, but those claims were routinely denied because they had not been billed through a physician. In 1978, McCready brought this class action in the United States District Court for the Eastern District of Virginia, on behalf of all Blue Shield subscribers who had incurred costs for psychological services since 1973 but who had not been reimbursed. The complaint alleged that Blue Shield and petitioner Neuropsychiatric Society of Virginia, Inc., had engaged in an unlawful conspiracy in violation of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § l, “to exclude and boycott clinical psychologists from receiving compensation under” the Blue Shield plans. App. 55. McCready further alleged that Blue Shield’s failure to reimburse had been in furtherance of the alleged conspiracy, and had caused injury to her business or property for which she was entitled to treble damages and attorney’s fees under § 4 of the Clayton Act, 38 Stat. 731, 15 U. S. C. §15. The District Court granted petitioners’ motion to dismiss, holding that McCready had no standing under § 4 to maintain her suit. In the District Court’s view, McCready’s standing to maintain a § 4 action turned on whether she had suffered injury “within the sector of the economy competitively endangered by the defendants’ alleged violations of the antitrust laws.” App. 17. Noting that the goal of the alleged boycott was to exclude clinical psychologists from a segment of the psychotherapy market, the court concluded that the “sector of the economy competitively endangered” by the charged violation extended “no further than that area occupied by the psychologists.” Id., at 18 (emphasis in original). Thus, while McCready clearly had suffered an injury by being denied reimbursement, this injury was “too indirect and remote to be considered ‘antitrust injury.’” Ibid. A divided panel of the United States Court of Appeals for the Fourth Circuit reversed, holding that McCready had alleged an injury within the meaning of § 4 of the Clayton Act and had standing to maintain the suit. 649 F. 2d 228 (1981). The court recognized that the goal of the alleged conspiracy was the exclusion of clinical psychologists from some segment of the psychotherapy market. But it held that the § 4 remedy was available to any person “whose property loss is directly or proximately caused by” a violation of the antitrust laws, and that McCready’s loss was not “too remote or indirect to be covered by the Act.” Id., at 231. The court thus remanded the case to the District Court for further proceedings. We granted certiorari. 454 U. S. 962 (1981). W I — t Section 4 of the Clayton Act, 38 Stat. 731, provides a treble-damages remedy to “[ajny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws,” 15 U. S. C. §15 (emphasis added). As we noted in Reiter v. Sonotone Corp., 442 U. S. 330, 337 (1979), “[o]n its face, § 4 contains little in the way of restrictive language.” And the lack of restrictive language reflects Congress’ “expansive remedial purpose” in enacting § 4: Congress sought to create a private enforcement mechanism that would deter violators and deprive them of the fruits of their illegal actions, and would provide ample compensation to the victims of antitrust violations. Pfizer Inc. v. India, 434 U. S. 308, 313-314 (1978). See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 485-486, and n. 10, (1977); Perma Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 139 (1968); American Society of Mechanical Engineers v. Hydrolevel Corp., 456 U. S. 556, 572-573, and n. 10 (1982). As we have recognized, “[t]he statute does not confine its protection to consumers, or to purchasers, or to competitors, or to sellers. . . . The Act is comprehensive in its terms and coverage, protecting all who are made victims of the forbidden practices by whomever they may be perpetrated.” Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 236 (1948). Consistent with the congressional purpose, we have refused to engraft artificial limitations on the §4 remedy. Two recent cases illustrate the point. Pfizer Inc. v. India, supra, afforded the statutory phrase “any person” its “naturally broad and inclusive meaning,” id., at 312, and held that it extends even to an action brought by a foreign sovereign. Similarly, Reiter v. Sonotone Corp., supra, rejected the argument that the § 4 remedy is available only to redress injury to commercial interests. In that case we afforded the statutory term “property” its “naturally broad and inclusive meaning,” and held that a consumer has standing to seek a § 4 remedy reflecting the increase in the purchase price of goods that was attributable to a price-fixing conspiracy. 442 U. S., at 338. In sum, in the absence of some articulable consideration of statutory policy suggesting a contrary conclusion in a particular factual setting, we have applied § 4 in accordance with its plain language and its broad remedial and deterrent objectives. But drawing on statutory policy, our cases have acknowledged two types of limitation on the availability of the § 4 remedy to particular classes of persons and for redress of particular forms of injury. We treat these limitations in turn. A In Hawaii v. Standard Oil Co., 405 U. S. 251 (1972), we held that § 4 did not authorize a State to sue in its parens pa-triae capacity for damages to its “general economy.” Noting that a “large and ultimately indeterminable part of the injury to the.‘general economy’ ... is no more than a reflection of injuries to the ‘business or property’ of consumers, for which they may recover themselves under §4,” we concluded that “[e]ven the most lengthy and expensive trial could not . . . cope with the problems of double recovery inherent in allowing damages” for injury to the State’s quasi-sovereign interests. Id., at 264. See Reiter v. Sonotone Corp., supra, at 342. In Illinois Brick Co. v. Illinois, 431 U. S. 720 (1977), similar concerns prevailed. Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481 (1968), had held that an antitrust defendant could not relieve itself of its obligation to pay damages resulting from overcharges to a direct-purchaser plaintiff by showing that the plaintiff had passed the amount of the overcharge on to its own customers. Illinois Brick was an action by an indirect purchaser claiming damages from the antitrust violator measured by the amount that had been passed on to it. Relying in part on Hawaii v. Standard Oil Co., supra, the Court found unacceptable the risk of du-plicative recovery engendered by allowing both direct and indirect purchasers to claim damages resulting from a single overcharge by the antitrust defendant. Illinois Brick, supra, at 730-731. The Court found that the splintered recoveries and litigative burdens that would result from a rule requiring that the impact of an overcharge be apportioned between direct and indirect purchasers could undermine the active enforcement of the antitrust laws by private actions. 431 U. S., 745-747. The Court concluded that direct purchasers rather than indirect purchasers were the injured parties who as a group were most likely to press their claims with the vigor that the §4 treble-damages remedy was intended to promote. Id., at 735. The policies identified in Hawaii and Illinois Brick plainly offer no support for petitioners here. Both cases focused on the risk of duplicative recovery engendered by allowing every person along a chain of distribution to claim damages arising from a single transaction that violated the antitrust laws. But permitting respondent to proceed in the circumstances of this case offers not the slightest possibility of a du-plicative exaction from petitioners. McCready has paid her psychologist’s bills; her injury consists of Blue Shield’s failure to pay her. Her psychologist can link no claim of injury to himself arising from his treatment of McCready; he has been fully paid for his service and has not been injured by Blue Shield’s refusal to reimburse her for the cost of his services. And whatever the adverse effect of Blue Shield’s actions on McCready’s employer, who purchased the plan, it is not the employer as purchaser, but its employees as subscribers, who are out of pocket as a consequence of the plan’s failure to pay benefits. B Analytically distinct from the restrictions on the § 4 remedy recognized in Hawaii and Illinois Brick, there is the conceptually more difficult question “of which persons have sustained injuries too remote [from an antitrust violation] to give them standing to sue for damages under § 4.” Illinois Brick Co. v. Illinois, 431 U. S., at 728, n. 7 (emphasis added). An antitrust violation may be expected to cause ripples of harm to flow through the Nation’s economy; but “despite the broad wording of § 4 there is a point beyond which the wrongdoer should not be held liable.” Id., at 760 (Brennan, J., dissenting). It is reasonable to assume that Congress did not intend to allow every person tangentially affected by an antitrust violation to maintain an action to recover threefold damages for the injury to his business or property. Of course, neither the statutory language nor the legislative history of §4 offers any focused guidance on the question of which injuries are too remote from the violation and the purposes of the antitrust laws to form the predicate for a suit under §4; indeed, the unrestrictive language of the section, and the avowed breadth of the congressional purpose, cautions us not to cabin § 4 in ways that will defeat its broad remedial objective. But the potency of the remedy implies the need for some care in its application. In the absence of direct guidance from Congress, and faced with the claim that a particular injury is too remote from the alleged violation to warrant § 4 standing, the courts are thus forced to resort to an analysis no less elusive than that employed traditionally by courts at common law with respect to the matter of “proximate cause.” See Perkins v. Standard Oil Co., 395 U. S. 642, 649 (1969); Karseal Corp. v. Richfield Oil Corp., 221 F. 2d 358, 363 (CA9 1955). In applying that elusive concept to this statutory action, we look (1) to the physical and economic nexus between the alleged violation and the harm to the plaintiff, and (2), more particularly, to the relationship of the injury alleged with those forms of injury about which Congress was likely to have been concerned in making defendant’s conduct unlawful and in providing a private remedy under §4. (1) It is petitioners’ position that McCready’s injury is too “fortuitous” and too “incidental” to and “remote” from the alleged violation to provide the basis for a §4 action. At the outset, petitioners argue that because the alleged conspiracy was directed by its protagonists at psychologists, and not at subscribers to group health plans, only psychologists might maintain suit. This argument may be quickly disposed of. We do not think that because the goal of the conspirators was to halt encroachment by psychologists into a market that physicians and psychiatrists sought to preserve for themselves, McCready’s injury is rendered “remote.” The availability of the § 4 remedy to some person who claims its benefit is not a question of the specific intent of the conspirators. Here the remedy cannot reasonably be restricted to those competitors whom the conspirators hoped to eliminate from the market. McCready claims that she has been the victim of a concerted refusal to pay on the part of Blue Shield, motivated by a desire to deprive psychologists of the patronage of Blue Shield subscribers. Denying reimbursement to subscribers for the cost of treatment was the very means by which it is alleged that Blue Shield sought to achieve its illegal ends. The harm to McCready and her class was clearly foreseeable; indeed, it was a necessary step in effecting the ends of the alleged illegal conspiracy. Where the injury alleged is so integral an aspect of the conspiracy alleged, there can be no question but that the loss was precisely “ ‘the type of loss that the claimed violations . . . would be likely to cause.’” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S., at 489, quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 125 (1969). Petitioners next argue that even if the § 4 remedy might be available to persons other than the competitors of the conspirators, it is not available to McCready because she was not an economic actor in the market that had been restrained. In petitioners’ view, the proximate range of the violation is limited to the sector of the economy in which a violation of the type alleged would have its most direct anticompetitive effects. Here, petitioners contend that that market, for purposes of the alleged conspiracy, is the market in group health care plans. Thus, in petitioners’ view, standing to redress the violation alleged in this case is limited to participants in that market — that is, to entities, such as McCready’s employer, who were purchasers of group health plans, but not to McCready as a beneficiary of the Blue Shield plan. Petitioners misconstrue McCready’s complaint. Mc-Cready does not allege a restraint in the market for group health plans. Her claim of injury is premised on a concerted refusal to reimburse under a plan that was, in fact, purchased and retained by her employer for her benefit, and- that as a matter of contract construction and state law permitted reimbursement for the services of psychologists without any significant variation in the structure of the contractual relationship between her employer and Blue Shield. See n. 2, supra. As a consumer of psychotherapy services entitled to financial benefits under the Blue Shield plan, we think it clear that McCready was “within that area of the economy . . . endangered by [that] breakdown of competitive conditions” resulting from Blue Shield’s selective refusal to reimburse. In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F. 2d 122, 129 (CA9 1973). (2) We turn finally to the manner in which the injury alleged reflects Congress’ core concerns in prohibiting the antitrust defendants’ course of conduct. Petitioners phrase their argument on this point in a manner that concedes McCready’s participation in the market for psychotherapy services and rests instead on the notion that McCready’s injury does not reflect the “anticompetitive” effect of the.alleged boycott. They stress that McCready did not visit a psychiatrist whose fees were artificially inflated as a result of the competitive advantage he gained by Blue Shield’s refusal to reimburse for the services of psychologists; she did not pay additional sums for the services of a physician to supervise and bill for the psychotherapy provided by her psychologist; and that there is no “claim that her psychologists’ bills are higher than they would have been had the conspiracy not existed.” In promoting this argument, petitioners rely heavily on language in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., supra. In Brunswick, respondents were three bowling centers who complained that petitioner’s acquisition of several financially troubled bowling centers violated § 7 of the Clayton Act by lessening competition or tending to create a monopoly. In seeking damages, “respondents attempted to show that had petitioner allowed the [acquired] centers to close, respondents’profits would have increased.” Id., at 481. The Court of Appeals endorsed the legal theory upon which respondents’ claim was based, id., at 483, holding that “any loss ‘causally linked’ to ‘the mere presence of the violator in the market’” was compensable under §4, id., at 487. We reversed, holding that the injury alleged by respondents was not of “‘the type that the statute was intended to forestall.’” Id., at 487-488, quoting Wyandotte Transportation Co. v. United States, 389 U. S. 191, 202 (1967). Indeed, the Court noted that respondents sought in damages “the profits they would have realized had competition been reduced .” 429 U. S., at 488 (emphasis added). We can agree with petitioners’ view of Brunswick as embracing the general principle that treble-damages recoveries should be linked to the procompetition policy of the antitrust laws. But petitioners seek to take Brunswick one significant step farther. In a passage upon which petitioners place much reliance, we stated: “[Fjor plaintiffs to recover treble damages on account of § 7 violations, they must prove more than injury causally linked to an illegal presence in the market. Plaintiffs must prove antitrust injury, which is to say injury of the type, the antitrust laws were intended to prevent , and that flows from that which makes defendants’ acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation. It should, in short, be ‘the type of loss that the claimed violations .. . would be likely to cause.’ Zenith Radio Corp. v. Hazeliine Research, 395 U. S., at 125.” Id., at 489 (emphasis in original; footnote omitted). Relying on this language, petitioners reason that McCready can maintain no action under § 4 because her injury “did not reflect the anticompetitive effect” of the alleged violation. Brunswick is not so limiting. Indeed, as we made clear in a footnote to the relied-upon passage, a §4 plaintiff need not “prove an actual lessening of competition in order to recover. [Cjompetitors may be able to prove antitrust injury before they actually are driven from the market and competition is thereby lessened.” Id., at 489, n. 14. Thus while an increase in price resulting from a dampening of competitive market forces is assuredly one type of injury for which § 4 potentially offers redress, see Reiter v. Sonotone Corp., 442 U. S. 330 (1979), that is not the only form of injury remediable under § 4. We think it plain that McCready’s injury was of a type that Congress sought to redress in providing a private remedy for violations of the antitrust laws. McCready charges Blue Shield with a purposefully anti-competitive scheme. She seeks to recover as damages the sums lost to her as the consequence of Blue Shield’s attempt to pursue that scheme. She alleges that Blue Shield sought to induce its subscribers into selecting psychiatrists over psychologists for the psychotherapeutic services they required, and that the heart of its scheme was the offer of a Hobson’s choice to its subscribers. Those subscribers were compelled to choose between visiting a psychologist and forfeiting reimbursement, or receiving reimbursement by forgoing treatment by the practitioner of their choice. In the latter case, the antitrust injury would have been borne in the first instance by the competitors of the conspirators, and inevitably — though indirectly — by the customers of the competitors in the form of suppressed competition in the psychotherapy market; in the former case, as it happened, the injury was borne directly by the customers of the competitors. McCready did not yield to Blue Shield’s coercive pressure, and bore Blue Shield’s sanction in the form of an increase in the net cost of her psychologist’s services. Although McCready was not a competitor of the conspirators, the injury she suffered was inextricably intertwined with the injury the conspirators sought to inflict on psychologists and the psychotherapy market. In light of the conspiracy here alleged we think that McCready’s injury “flows from that which makes defendants’ acts unlawful” within the meaning of Brunswick, and falls squarely within the area of congressional concern. Ill Section 4 of the Clayton Act provides a remedy to “[a]ny person” injured “by reason of” anything prohibited in the antitrust laws. We are asked in this case to infer a limitation on the rule of recovery suggested by the plain language of §4. But having reviewed our precedents and, more importantly, the policies of the antitrust laws, we are unable to identify any persuasive rationale upon which McCready might be denied redress under §4 for the injury she claims. The judgment of the Court of Appeals is Affirmed. With petitioner Blue Shield of Southwestern Virginia. Petitioners contend that the contract between the county and Blue Shield must be read to bar payments for the services of nonphysicians. Respondent counters that between 1962 and 1972 Blue Shield routinely reimbursed subscribers for psychotherapy provided by psychologists, and that, this practice was revised in 1972 as a result of the alleged conspiracy. In addition, respondent notes that in 1973 the Virginia Legislature passed a “freedom of choice” statute, Va. Code §38.1-824 (1981), that required Blue Shield to pay for services rendered by licensed psychologists. See Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, 624 F. 2d 476, 478 (CA4 1980). She argues that Blue Shield’s obligations must be read consistently with that statute, at least until that statute was held invalid as applied in Blue Cross of Virginia v. Commonwealth, 221 Va. 349, 269 S. E. 2d 827 (1980). This case arises on a motion to dismiss. We therefore assume, as McCready has alleged, that but for the alleged conspiracy to deny payment, she would have been reimbursed by Blue Shield for the cost of her psychologist’s services. Apparently Blue Shield inadvertently paid one of McCready’s claims. After the error was discovered, Blue Shield sought to obtain a refund from McCready for the amount paid. 649 F. 2d 228, 230, n. 4 (1981). A similar complaint was filed by the Virginia Academy of Clinical Psychologists (VACP) and its president against the same defendants. The District Court addressed the motions to dismiss filed in each of the cases in a single opinion. The court dismissed McCready’s case — thus giving rise to the appellate decision at issue in this Court — but permitted the VACP case to proceed to trial. Following trial, the District Court entered judgment for the defendants, Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, 469 F. Supp. 552 (1979), but the Court of Appeals reversed with respect to defendant Blue Shield, 624 F. 2d 476 (CA4 1980). The opinion of the Court of Appeals for the Fourth Circuit in the instant case states that the opinion in VACP “should be read in connection with” its own opinion. 649 F. 2d, at 230. A brief recitation of the decision in the VACP ease is thus helpful in understanding the precise nature of McCready’s claim. In VACP, the Court of Appeals rejected the District Court’s treatment of Blue Shield as a distinct entity for purposes of determining whether a conspiracy or agreement had been shown. 624 F. 2d, at 479. The court found that “the Blue Shield Plans are combinations of physicians, operating under the direction and control of their physician members.” Ibid. “Blue Shield Plans are not insurance companies, though they are, to a degree, insurers. Rather, they are generally characterized as prepaid health care plans, quantity purchasers of health care services. [I]n a real and legal sense, the Blue Shield Plans are agents of their member physicians.” Id., at 480 (citations and footnote omitted). With respect to the question whether the alleged Blue Shield combination was “in restraint of trade,” the Court of Appeals agreed with the District Court that the rule of reason was applicable, but held that the District Court had erred in finding no liability. The Court of Appeals observed that psychologists and psychiatrists compete in the psychotherapy market, and that the decisions of Blue Shield “necessarily dictate, to some extent,” who will be chosen to provide psychotherapy. Id., at 485. Finding that Blue Shield’s policy of denying reimbursement for the psychotherapeutic services of psychologists unless billed through physicians, was not merely a cost-containment device or simply “good medical practice,” as claimed by Blue Shield, the court held that Blue Shield had violated the Sherman Act. Ibid. That section provides, in pertinent part, that “[ejvery 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, is declared to be illegal.” That section provides, in pertinent part: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court. . . and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” Petitioners have argued in this Court that under § 2 of the McCarran-Ferguson Act, 15 U. S. C. § 1012, their actions were exempt from the antitrust laws as part of the “business of insurance.” In ruling on petitioners' motion to dismiss, the District Court concluded that respondent had adequately pleaded a boycott beyond the protection of the McCarran-Fergu-son Act, 15 U. S. C. § 1013(b). Respondent points out that on a full factual record the issue was resolved against the petitioners in VACP, 624 F. 2d, at 483-484. The Court of Appeals did not address this question in the present case, however, and we do not reach it here. Addressing the “target area” limitation on antitrust standing recognized in several Courts of Appeals, see n. 14, infra, the court concluded that the policies underlying that limitation were not implicated by McCready’s claim. 649 F. 2d, at 231-232. The dissenting judge took a contrary view of the “target area” rule. He emphasized that McCready had not described her injury “as a design or goal of any antitrust violation,” but “rather as a consequence thereof.” Id., at 232. He viewed this as the determinative factor in the proper application of the “target area” test to the facts of this case: “In determining who has standing to sue, the courts must look at who the illegal act was aimed to injure. A bystander, who is not the intended victim of the antitrust violation but who is injured nonetheless, cannot sue under the antitrust laws. His injury is too remote.” Id., at 233. In addition, the dissent argued that McCready was not within the sector of the economy “competitively endangered” by the alleged violation, agreeing with the District Court that “she operated in a market which was unrestrained so far as she was concerned.” Id., at 234. Finally, the dissent reasoned: “The price of psychologists’ services to her was not increased by any act of the defendants. The fact that her Blue Shield contract . . . would not reimburse her for those services had nothing to do with the price she paid for the services, which . . . were not artificially inflated by an antitrust violation. . . . “. . . There is not even a claim that her psychologists’ bills are higher than they would have been had the conspiracy not existed.” Id., at 235-236. In a related context we commented that “[i]n the face of [the congressional antitrust] policy this Court should not add requirements to burden the private litigant beyond what is specifically set forth by Congress . . . .” Radovich v. National Football League, 352 U. S. 445, 454 (1957). See also Radiant Burners, Inc. v. Peoples Gas Co., 364 U. S. 656, 659-660 (1961) (per curiam) (To state a claim under § 1 of the Sherman Act, “allegations adequate to show a violation and, in a private treble damage action, that plaintiff was damaged thereby are all the law requires”). Permitting McCready to maintain this lawsuit will, of course, further certain basic objectives of the private enforcement scheme embodied in § 4. Only by requiring violators to disgorge the “fruits of their illegality” can the deterrent objectives of the antitrust laws be fully served. Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481, 494 (1968). See Pfizer Inc. v. India, 434 U. S. 308, 314 (1978); Illinois Brick Co. v. Illinois, 431 U. S. 720, 746 (1977). But in addition to allowing Blue Shield to retain a palpable profit as a result of its unlawful plan, denying standing to McCready and the class she represents would also result in the denial of compensation for injuries resulting from unlawful conduct. If there is a subordinate theme to our opinions in Hawaii and Illinois Brick, it is that the feasibility and consequences of implementing particular damages theories may, in certain limited circumstances, be considered in determining who is entitled to prosecute an action brought under §4. Where consistent with the broader remedial purposes of the antitrust laws, we have sought to avoid burdening § 4 actions with damages issues giving rise to the need for “massive evidence and complicated theories,” where the consequence would be to discourage vigorous enforcement of the antitrust laws by private suits. Hanover Shoe, Inc. v. United Shoe Machinery Corp., supra, at 493. Thus we recognized that the task of disentangling overlapping damages claims is not lightly to be imposed upon potential antitrust litigants, or upon the judicial system. See Hawaii v. Standard Oil Co., 405 U. S. 251, 264 (1972); Illinois Brick Co. v. Illinois, supra, at 741-742. In addition, while “[difficulty of ascertainment [should not be] confused with right of recovery,” Bigelow v. RKO Radio Pictures, Inc., 327 U. S. 251, 265 (1946), §4 plainly focuses on tangible economic injury. It may therefore be appropriate to consider whether a claim rests at bottom on some abstract conception or speculative measure of harm. See Hawaii v. Standard Oil Co., supra, at 262-263, n. 14. But like the policy against duplicative recoveries, our cautious approach to speculative, abstract, or impractical damages theories has no application to McCready’s suit. The nature of her injury is easily stated: As the result of an unlawful boycott, Blue Shield failed to pay the cost she incurred for the services of a psychologist. Her damages were fixed by the plan contract and, as the Court of Appeals observed, they could be “ascertained to the penny.” 649 F. 2d, at 231. We addressed two issues of “remoteness” in Perkins v. Standard Oil Co., 395 U. S. 642 (1969). That case involved an alleged violation of § 2 of the Clayton Act, as amended by the Robinson-Patman Act, 15 U. S. C. § 13. Focusing on the substantive terms of § 2, we found no warrant in its “language or purpose” to engraft an “artificial” limitation on the reach of the remedy to bar what the court below had termed a “fourth level” injury. 395 U. S., at 648. We also rejected the claim that one form of damages claimed by the defendant was not the proximate result of the alleged violation. Id., at 649. The Courts of Appeals have developed a more substantial jurisprudence on the subject of “remoteness,” formulating various “tests” as aids in analysis. Among the tests employed by the lower courts are those that focus on the “directness” of the injury, e. g., Loeb v. Eastman Kodak Co., 183 F. 704, 709 (CA3 1910); Productive Inventions, Inc. v. Trico Products Corp., 224 F. 2d 678 (CA2 1955); Volasco Products Co. v. Lloyd A. Fry Roofing Co., 308 F. 2d 383 (CA6 1962); on its foreseeability, e. g., In re Western Liquid Asphalt Cases, 487 F. 2d 191, 199 (CA9 1973); Twentieth Century Fox Film. Corp. v. Goldwyn, 328 F. 2d 190, 220 (CA9 1964); or on whether the injury is “arguably . . . within the zone of interests protected by the [antitrust laws]," e. g., Malamud v. Sinclair Oil Corp., 521 F. 2d 1142, 1152 (CA6 1975). See also n. 14, infra (“target area” test). The Third Circuit has concluded that “§ 4 standing analysis is essentially a balancing test comprised of many constant and variable factors and that there is no talismanic test capable of resolving all §4 standing problems.” Bravman v. Basset Furniture Industries, Inc., 552 F. 2d 90, 99 (1977). The Third Circuit has thus rejected the definitional approach, opting instead for an analysis of the “factual matrix” presented by each case. Ibid. We have no occasion here to evaluate the relative utility of any of these possibly conflicting approaches toward the problem of remote antitrust injury. The traditional principle of proximate cause suggests the use of words such as “remote,” “tenuous,” “fortuitous,” “incidental,” or “consequential” to describe those injuries that will find no remedy at law. See, e. g., South Carolina Council of Milk Producers, Inc. v. Newton, 360 F. 2d 414, 419 (CA4 1966). And the use of such terms only emphasizes that the principle of proximate cause is hardly a rigorous analytic tool. See, e. g., Palsgraf v. Long Island R. Co., 248 N. Y. 339, 162 N. E. 99 (1928); id., at 351-352, 162 N. E., at 103 (Andrews, J., dissenting) (“What is a cause in a legal sense, still more what is a proximate cause, depend in each case upon many considerations. . . . What we do mean by the word ‘proximate’ is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point”). It bears affirming that in identifying the limits of an explicit statutory remedy', legislative intent is the controlling consideration. Cf. Mer rill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 377-378 (1982); Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 13 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 15-16 (1979). In so arguing, petitioners advert to the “target area” test of antitrust standing that prevails in the Courts of Appeals for the First, Second, and Fifth Circuits. See, e. g., Pan-Islamic Trade Corp. v. Exxon Corp., 632 F. 2d 539, 546 (CA5 1980); Engine Specialties, Inc. v. Bombardier Ltd., 605 F. 2d 1, 18-19 (CA1 1979); Calderone Enterprises Corp. v. United Artists Theatre Circuit, Inc., 454 F. 2d 1292 (CA2 1971). Petitioners place special reliance on the following frequently cited formulation of the “target area” principle: “[I]n order to have ‘standing’ to sue for treble damages under § 4 of the Clayton Act, a person must be within the ‘target area’ of the alleged antitrust conspiracy, i. e., a person against whom the conspiracy was aimed, such as a competitor of the persons sued. Accordingly we have drawn a line excluding those who have suffered economic damage by virtue of their relationships with ‘targets’ or with participants in an alleged antitrust conspiracy, rather than being ‘targets’ themselves.” Id., at 1295. Nor does the “target area” test applied by the Courts of Appeals “ ‘imply that it must have been a purpose of the conspirators to injure the particular individual claiming damages.’ ” See Schwimmer v. Sony Corp. of America, 637 F. 2d 41, 47-48 (CA2 1980), quoting Twentieth Century Fox Film Corp. v. Goldwyn, 328 F. 2d, at 220. Petitioners borrow selectively from Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477 (1977), in arguing that McCready’s §4 claim is “unrelated to any reduction in competition caused by the alleged boycott,” because the injury she alleges “is the result of the terms of her insurance contract, and not the result of a reduction in competition.” Brief for Petitioners 16. Extracting additional language from Brunswick, they argue that “McCready would have suffered the identical ‘loss’ — but no compensa-ble ‘injury’ as long as her employer, which acted independently in an unrestrained market, continued to purchase a group insurance contract that did not cover the services of clinical psychologists.” Brief for Petitioners 16-17 (footnote omitted). Nor do we think that her employer’s decision to retain Blue Shield coverage despite its continued failure to reimburse for the services of a psychologist — or indeed, her employer’s unexercised option to terminate that relationship — is an intervening cause of McCready’s injury. Although her employer’s decision to purchase the Blue Shield plan for her benefit was in some sense a factor that contributed independently to McCready’s injury, her coverage under the Blue Shield plan may, at this stage of the litigation, properly be accepted as a given, and the proper focus in evaluating her entitlement to raise a §4 damages claim is on Blue Shield’s change in the terms of the plan to link reimbursement to a subscriber’s choice of one group of psychotherapists over another. 649 F. 2d, at 236 (Widener, J., dissenting). Brunswick held that a claim of injury arising from the preservation or enhancement of competition is a claim “inimical to the purposes of [the antitrust] laws,” 429 U. S., at 488. Most obviously, McCready’s claim is quite unlike the claim asserted by the plaintiff in Brunswick for she does not seek to label increased competition as a harm to her. Nevertheless, we agree with petitioners that the relationship between the claimed injury and that which is unlawful in the defendant’s conduct, as analyzed in Brunswick, is one factor to be considered in determining the redressability of a particular form of injury under § 4. Or at the least, Blue Shield sought to compel McCready to employ the services of a physician in addition to those of a psychologist. Justice Rehnquist, dissenting, is of course correct in asserting that the “injury suffered by the plaintiff must be of the type the antitrust laws were intended to forestall,” post, at 486. But Justice Rehnquist’s dissent takes an unrealistically narrow view of those injuries with which the antitrust laws might be concerned, and offers not the slightest hint— beyond sheer ipse dixit — to help in determining what kinds of injury are not amenable to § 4 redress. For example, the dissent acknowledges that “a distributor who refused to go along with the retailers’ conspiracy [to injure a disfavored retailer] and thereby lost the conspiring retailers’ business would . . . have an action against those retailers,” post, at 490. The dissent characterizes this circumstance as a “concerted refusal to deal,” and is thus willing to acknowledge the existence of compensable injury. But the dissent’s is not the only pattern of concerted refusals to deal. If a group of psychiatrists conspired to boycott a bank until the bank ceased making loans to psychologists, the bank would no doubt be able to recover the injuries suffered as a consequence of the psychiatrists’ actions. And plainly, in evaluating the reasonableness under the antitrust laws of the psychiatrists’ conduct, we would be concerned with its effects not only on the business of banking, but also on the business of the psychologists against whom that secondary boycott was directed. McCready and the banker and the distributor are in many respects similarly situated. McCready alleges that she has been the victim of a concerted refusal by psychiatrists to reimburse through the Blue Shield plan. Because McCready is a consumer, rather than some other type of market participant, the dissent finds itself unwilling to acknowledge that she might have suffered a form of injury of significance under the antitrust laws. But under the circumstances of this case, McCready’s participation in the market for psychotherapeutic services provides precisely that significance. 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. 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Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:

sc_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. HARTIGAN, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, et al. v. ZBARAZ et al. No. 85-673. Argued November 3, 1987 Decided December 14, 1987 Michael J. Hayes, First Assistant Attorney General of Illinois, argued the cause for appellants. With him on the briefs for appellant Hartigan were Neil F. Hartigan, Attorney General, pro se, Roma Jones Stewart, former Solicitor General, Shawn W. Denney, Solicitor General, and Rita M. Novak, Assistant Attorney General. Colleen K. Connell argued the cause for appellees. With her on the briefs were Marc O. Beem and Harvey Grossman. Briefs of amici curiae urging reversal were filed for the State of Nevada by Brian McKay, Attorney General, and Ellen F. Whittemore, Deputy Attorney General; for the State of Ohio et al. by Anthony J. Celebrezze, Jr., Attorney General of Ohio, David J. Kovach, Assistant Attorney General, Robert K. Corbin, Attorney General of Arizona, Linley E. Pearson, Attorney General of Indiana, Hubert H. Humphrey HI, Attorney General of Minnesota, William L. Webster, Attorney General of Missouri, and David R. Wilkinson, Attorney General of Utah; for Americans United for Life Legal Defense Fund by Dennis J. Horan, Edward R. Grant, Maura K. Quinlan, Clarke D. Forsythe, and Ann-Louise Lohr; for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell; for the Family Research Council et al. by Lynn D. Wardle; and for the United States Catholic Conference by John A. Liekweg and Mark E. Chopko. Briefs of amici curiae urging affirmance were filed for the American College of Obstetricians and Gynecologists et al. by Benjamin W. Heine-man, Jr., Carter G. Phillips, Ann E. Allen, Stephan E. Lawton, and Laurie R. Rockett; for the American Psychological Association by Donald N. Bersoff and David W. Ogden; for the American Public Health Association et al. by Patricia Hennessey and Dara Klassel; for the Judicial Consent for Minors Lawyer Referral Panel et al. by Jamie Ann Sabino; for the National Abortion Rights Action League et al. by Rhonda Copelon, Anne E. Simon, Nadine Taub, and Kathryn Kolbert; and for Pregnant Minors Desiring Confidential Abortions in Minnesota and Massachusetts et al. by Janet Benshoof, Lynn M. Paltrow, Rachael N. Pine, William Z. Pentelovitch, and John H. Henn. Briefs of amici curiae were filed for the American Life League, Inc., by Thomas Patrick Monaghan; for American Victims of Abortion by James Bopp, Jr.; and for Concerned Women for America by Charles F. Simon and Jordan W. Lorence. Per Curiam. The judgment below is affirmed by an equally divided Court. 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_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. MISSOURI STATE LIFE INS. CO. v. PATER. (Circuit Court of Appeals, Seventh Circuit. December 4, 1926.) No. 3795. 1. Insurance <§=>668(12) — Whether Insured committed suicide held, under evidence, for jury. In action on accident policy, question whether insured committed suicide held, under evidence, for jury. 2. Insurance <§=>646(3) — Burden of proving death of insured by accidental means is on plaintiff. In action on accident insurance policy, plaintiff has burden of proving death by accidental means. 3. Insurance <§=>668(6) — Materiality of statement of applicant for accident insurance as to other insurance held, under evidence, for jury. Whether statement of applicant for accident insurance that he had no other accident or health insurance materially affected acceptance of risk held, under evidence, for jury. 4. Insurance <§=>668(7) — Whether statement of applicant for accident insurance concerning prior health affected risk held for jury. Whether statement of applicant for accident insurance concerning prior health materially affected acceptance of risk held, under evidence, question for jury. 5. Insurance <§=>668(7) — Whether applicant for accident insurance falsely represented that his habits were temperate held question for jury. Truth or falsity of statement of applicant for accident insurance concerning his use of liquor held', under evidence, for jury. In Error to the District Court of the United States for the District of Indiana. Action by Mamie K. Pater against the Missouri State Life Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed. Claris Adams, of St. Louis, Mo., and D. H. Ortmeyer, of Evansville, Ind., for plaintiff in error. Frank H. Hatfield and Louis L. Roberts, both of Evansville, Ind., for defendant in error. Before ALSCHULER, EVANS, and ANDERSON, Circuit Judges. ALSCHULER, Circuit Judge. The judgment assailed is predicated on a contract of insurance dated March 7,1923, providing for indemnities of $50 weekly, and $15,000 in case of death, where the injury or death results wholly from accidental means, not including “suicide, sane or insane.” One of the policy conditions was that eopy of the application appearing thereon, dated March 6, was made part of the contract. In the application appear these questions and answers: “J. What accident or health insurance have you in other companies or associations? None.” “N. Are your habits temperate? Yes.” “P. Have you within the past five years had medical or surgical advice or treatment, or any departures from good health? If so, state when and what? 1921; broken ribs; complete recovery.” “S. Do you agree that the falsity of any answer in this application for a policy shall bar the right to recover thereunder, if such answer is made with intent to deceive, or materially affects either the acceptance of the risk or the hazard assumed by the company? Yes.” Insured died the following September 23 from a self-inflicted knife stab. Plaintiff, in error predicates its contention of nonliability upon the claim that insured committed suicide; also that the above-quoted answers were false and intended to deceive, or materially affected the acceptance of the risk or the hazard whieh the company assumed. That there appears in the evidence much tending to support the conclusion of suicide must be conceded. Insured and his wife, beneficiary under the policy, were in their kitchen doing the work after the evening meal. He was wiping the dishes, and the last article wiped was a short, pointed paring knife. The wife in her testimony stated that, turning from him, she heard him say, “Here goes,” and then, looking at him, she saw blood on his shirt, and him in the act of laying down the knife, and taking a few steps, falling, and dying shortly thereafter. The post mortem showed a knife wound about two inches deep, whieh penetrated the heart sufficiently to cause death. There was evidence tending to show that he had sustained business reverses, was drinking, and had threatened self-destruction. On the other hand, it was testified that he was generally in excellent health and spirits ; that, notwithstanding some previous business troubles, he was in fair/ shape, his wife and her mother having advanced considerable money to save the hardware business in which he had been long" engaged, making him the manager of it; that his relations with his wife and their several young children were most happy; that he was temperate, and of a jovial, playful disposition, frequently playing games with his own and other children of the neighborhood. A number of witnesses testifled to Ms quite frequent practice of taking a knife or other sharp instrument in Ms hands, and in the presence of others moving it toward his body, and just before contact turning Ms hand about and striking himself with his fist, exclaiming, “Here goes,” or some similar exclamation, but all in play, and for the purpose of frightening those who happened to be about, calling the performance the “Dutch Act,” but with notMng to indicate intent to harm himself; that such things would be done both in store and at home; and that in general he was much given to mock heroics and “play acting.” We are of the opinion that upon the record thé question of suicide was one of fact for the jury, whose conclusion therein we do not feel at liberty to disturb. To be sure, appellee had the burden of showing that the death was caused through accidental means; but, under the circumstances, rejecting the theory of suicide leaves no alternative but the conclusion of death through accidental means. Bespeeting the answer to question J, to the effect that he had no accident or health insurance in other companies or associations, it appeared in evidence that just before the date of the application he had written a letter to some other concern, calling attention to the fact that he had had a cold or an attack of flu, wMeh had disabled Mm for about a week, and asking for blanks to claim indemnity therefor. The blanks were evidently furnished, and there was introduced in evidence such a blank, apparently signed by him, setting forth such illness, and saying he had been treated by a physician, but that he had recovered. There was also in evidence Ms receipt for $22.14, wMch evidently was paid him by this other concern on March 19, given to what was called Business Men’s Indemnity Association, reciting a policy therein and payment “on account of disability caused by sickness on or about February 22, 1923.” The statement of claim mentioned the policy as bearing date May 5, 1922. There was no other evidence-as to the nature of the insuring concern or the amount or nature of the policy. It was stipulated that an action on that policy, begun by appellee, was pending; but the widow testified she did not know whether or not the policy was in force, and it does not appear whether that action is predicated on the death of the insured, or on the same or some other illness. We gather from the record that the policy was not an accident, but a health policy. . It may well be that the deceased in good faith may have answered as he did, thinking that, since it was a health policy, and the one in question an accident policy, or, as he termed it, a “life” .policy, they did not in any way conflict. But can the court say, as a matter of law, that the answer “materially affects the acceptance of the risk or the hazard assumed by the company”? Appellant contends that, the answer being untrue, the'conclusion of materiality and hazard follows as a matter of law. If so, why this clause ? The clause is not to be treated as though it were not present, and as if in its place were the frequently found clause, unqualified, that falsity of any answer in the application would void the policy. Courts have had frequently to deal with such clauses. It is possible to imagine circumstances under which a court might be warranted in saying that reasonable minds could not differ on the conclusion of the materiality of a concealed fact respecting other insurance. But where, as here, the prior policy was manifestly of a different class, and, under the evidence, may have been for no considerable amount, and possibly not even in force when appellant’s policy issued, the question of its effect upon the acceptance of the risk or the hazard assumed by the company, as well as the good faith of the deceased in maHng the answer, was for the jury. And likewise ás to the answer to ques-P, respecting his prior health, as bearing on the acceptance of the risk, or the extent of the hazard assumed by the company, and of his good faith in making the answer. Again, one can imagine a case where a court might be warranted in concluding that reasonable minds would not differ upon the inference to be drawn, had certain falsely represented facts respecting prior health been truthfully stated, as, for instance, had he deliberately concealed that he was a subject of severe and serious epileptic attacks which strongly predispose to accidents. But the situation here is so manifestly different that it was for the jury to determine whether, and to what extent, the answer complained of influenced the acceptance of the risk or hazard. Indeed, under the facts here appearing it might, with some show of reason, be said that reasonable minds would not differ on the conclusion that his week’s indisposition, through what he called a cold and the flu, wherefrom he had probably recovered at the time of the application, would in any manner have influenced the company against writing the policy, or have affected the rate or the hazard. It is in tMs connection worthy of note that so apparently unimportant was considered the matter of applicant’s physical condition that no personal examination of him appears to have been required or made prior to issuing him the policy. Respecting answer to question N, stating his habits to be temperate, whether the answer was true or false was clearly for the jury. There was evidence that liquor he had drunk was poisonous, and made him sick on several occasions; but his physician and others testified he was temperate, and it appeared that a post mortem revealed nothing which would indicate his addiction to liquor drinking. The jury was fairly charged on all the propositions involved, and no complaint is made on that score. The judgment must be and is affirmed. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:

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. ANDERSON, WARDEN v. HARLESS No. 81-2066. Decided November 1, 1982 Per Curiam. Respondent was convicted of two counts of first-degree murder and was sentenced to life imprisonment. The Michigan Court of Appeals affirmed respondent’s conviction, Peo ple v. Harless, 78 Mich. App. 745, 261 N. W. 2d 41 (1977), and the Michigan Supreme Court, on review of the record, denied respondent’s request for relief. App. to Pet. for Cert. 30a. Respondent then filed a petition for writ of habeas corpus, pursuant to 28 U. S. C. § 2254, in the United States District Court for the Eastern District of Michigan. He alleged, inter alia, that the trial court’s instruction on “malice”— a crucial element in distinguishing between second-degree murder and manslaughter under Michigan law — was unconstitutional. In particular, respondent focused on the following language from the trial court’s lengthy charge: “Malice is implied from the nature of the act which caused the death. Malice can be implied from using the weapon on another person. You are not obligated to reach the conclusion, but you must imply malice if you find death was implied [sic] by the use of a gun against another.” App. to Pet. for Cert. 59a. Relying primarily on Sandstrom v. Montana, 442 U. S. 510 (1979), the District Court held that this instruction unconstitutionally shifted the burden of proof to respondent and was inconsistent with the presumption of innocence. 504 F. Supp. 1135 (1981). The court also held that respondent had exhausted available state-court remedies, as required by 28 U. S. C. §§2254 (b) and (c), since his conviction had been reviewed by both the Michigan Court of Appeals and the Michigan Supreme Court. The District Court ordered that the application for writ of habeas corpus be granted unless respondent was retried within 90 days. The United States Court of Appeals for the Sixth Circuit affirmed. 664 F. 2d 610 (1982). The court held that respondent’s claim had been properly exhausted in the state courts, because respondent had presented to the Michigan Court of Appeals the facts on which he based his federal claim and had argued that the malice instruction was “reversible error.” See People v. Harless, supra, at 748, 261 N. W. 2d, at 43. The court also emphasized that respondent, in his brief to the Michigan Court of Appeals, had cited People v. Martin, 392 Mich. 553, 221 N. W. 2d 336 (1974) — a decision predicated solely on state law in which no federal issues were decided, but in which the defendant had argued broadly that failure to properly instruct a jury violates the Sixth and Fourteenth Amendments. In the view of the United States Court of Appeals, respondent’s assertion before the Michigan Court of Appeals that the trial court’s malice instruction was erroneous, coupled with his citation of People v. Martin, supra, provided the Michigan courts with sufficient opportunity to consider the issue encompassed by respondent’s subsequent federal habeas petition. We reverse. In Picard v. Connor, 404 U. S. 270 (1971), we made clear that 28 U. S. C. § 2254 requires a federal ha-beas petitioner to provide the state courts with a “fair opportunity” to apply controlling legal principles to the facts bearing upon his constitutional claim. Id., at 276-277. It is not enough that all the facts necessary to support the federal claim were before the state courts, id., at 277, or that a somewhat similar state-law claim was made. See, e. g., Gayle v. LeFevre, 613 F. 2d 21 (CA2 1980); Paullet v. Howard, 634 F. 2d 117, 119-120 (CA3 1980); Wilks v. Israel, 627 F. 2d 32, 37-38 (CA7), cert. denied, 449 U. S. 1086 (1980); Conner v. Auger, 595 F. 2d 407, 413 (CA8), cert. denied, 444 U. S. 851 (1979). In addition, the habeas petitioner must have “fairly presented” to the state courts the “substance” of his federal habeas corpus claim. Picard, supra, at 275, 277-278. Cf. Rose v. Lundy, 455 U. S. 509, 518 (1982). In this case respondent argued on appeal that the trial court’s instruction on the element of malice was “erroneous.” He offered no support for this conclusion other than a citation to, and three excerpts from, People v. Martin, supra — a case which held that, under Michigan law, malice should not be implied from the fact that a weapon is used. See App. to Pet. for Cert. 47a-49a, 51a-53a. Not surprisingly, the Michigan Court of Appeals interpreted respondent’s claim as being predicated on the state-law rule of Martin, and analyzed it accordingly. 78 Mich. App., at 748-750, 261 N. W. 2d, at 43. The United States Court of Appeals concluded that “the due process ramifications” of respondent’s argument to the Michigan court “were self-evident,” and that respondent’s “reliance on Martin was sufficient to present the state courts with the substance of his due process challenge to the malice instruction for habeas exhaustion purposes.” 664 F. 2d, at 612. We disagree. The District Court based its grant of habeas relief in this case on the doctrine that certain sorts of “mandatory presumptions” may undermine the prosecution’s burden to prove guilt beyond a reasonable doubt and thus deprive a criminal defendant of due process. See Sandstrom, supra; In re Winship, 397 U. S. 358 (1970). The Court of Appeals affirmed on the same rationale. However, it is plain from the record that this constitutional argument was never presented to, or considered by, the Michigan courts. Nor is this claim even the same as the constitutional claim advanced in Martin — the defendant there asserted a broad federal due process right to jury instructions that “properly explain” state law, 392 Mich., at 558, 221 N. W. 2d, at 339, and did not rely on the more particular analysis developed in cases such as Sandstrom, supra. Since it appears that respondent is still free to present his Sandstrom claim to the Michigan Court of Appeals, see People v. Berry, 10 Mich. App. 469, 474-475, 157 N. W. 2d 310, 312-313 (1968), we conclude that he has not exhausted his available state-court remedies as required by 28 U. S. C. § 2254. Accordingly, the petition for certiorari and respondent’s motion for leave to proceed in forma pauperis are granted, the judgment of the United States Court of Appeals for the Sixth Circuit is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. Respondent was convicted oí first-degree murder, which requires proof not only of “malice” but also of premeditation. For this reason, petitioner argues that any error in the trial court’s definition of malice was harmless. In light of our disposition, we do not reach the issue. Respondent was represented by counsel on appeal. We doubt that a defendant’s citation to a state-court decision predicated solely on state law ordinarily will be sufficient to fairly apprise a reviewing court of a potential federal claim merely because the defendant in the cited case advanced a federal claim. However, it is clear that such a citation is insufficient when, as here, the federal claim asserted in the cited case is not even the same as the federal claim on which federal habeas relief is sought. See Picard v. Connor, 404 U. S. 270, 276 (1971). 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_casetyp1_7-2

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". MINNESOTA MINING & MFG. CO. v. COE, Com’r of Patents. No. 7390. United States Court of Appeals for the District of Columbia. Decided May 6, 1940. Petition for Rehearing Denied June 14, 1940. Henry H. Benjamin, of Washington, D. C., and William H. Abbott, of Chicago, 111., for appellant. William Wallace Cochran, of Washington, D. C., for appellee. Before STEPHENS, EDGERTON, and RUTLEDGE, Associate Justices. RUTLEDGE, Associate Justice. The appeal is from a judgment of the District Court dismissing the complaint as to certain of plaintiff’s claims in an action to authorize the Commissioner of Patents to issue a patent. The trial court authorized the issuance of a patent as to two of the claims, and the Commissioner does not appeal from this ruling. The claims relate to a “sandblast stencil.” This is a sheet of material which is affixed to the surface of a stone in which letters or- figures are to be cut. The stencil is cut to form the letters or figures desired. The engraver uses a gun which propels particles of sand against the surface, cutting out the design formed by the openings in the stencil and leaving the rest of the stone intact. As the trial court found, “Prime requisites of sandblast stencil sheets are that they must be sufficiently strong and resilient to withstand abrasion by a stream of particles under an air pressure of 100 pounds and they must be sufficiently flexible to conform to uneven stone surfaces on which they may be applied. They must be tough enough to withstand abrasion and yet must be capable of being readily and accurately cut to form a stencil aperture of an intricate design. They must adhere to the surface to be inscribed firmly enough to prevent displacement during the sandblasting operation and yet not so strongly as to injure the stone surface or cause removal of any particles of the stone surface upon removal of the stencil sheet. The adhesive of the stencil sheet must not contain ingredients which will discolor or mar the stone surface.” Earlier stencils had been made of vulcanized rubber, rubber reinforced by wire, and a glue-glycerine (“synthetic rubber”) compound. The latter stencil also employed a glue-glycerine adhesive which required moistening before use. This adhesive discolored the stone and was difficult to remove. Plaintiff’s stencil is strong, resilient, flexible and easily cut. The adhesive used is “pressure-sensitive,” requiring no moistening for use. It is readily removable and does not discolor the stone. The stencil is described in plaintiff’s claim 38 as “sheeted material comprising a flexible mass containing as ingredients thereof bone glue siftings, rubber, whiting, solros, factice and a solvent and a normally pressure-sensitive rubber-base adhesive coating affixed to one surface thereof, said composite being inherently blasting resistant.” The trial court found that this claim, together with claim 39, which specifies the proportions of ingredients used, described an invention, and authorized the 'Commissioner to issue a patent. Since the Commissioner has not appealed, the sole question here is whether plaintiffs other claims should have been allowed also. Claim 13 is the most specific of the rejected claims, and is fairly representative of the others: “a sheeted material comprising a rubber-rosin glue inherently blasting resistant backing having a layer of normally pressure-sensitive blasting resistant adhesive material affixed to one surface thereof.” It is contended that claim 13 and the other disputed claims are invalid on their face. It will be noted that the most specific phrase in claim 13 is “rubber-rosin glue.” Otherwise the claim merely describes the qualities of the stencil and its functional characteristics. It has been held that a description by function does not comply with the statutory requirement that the inventor “shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery.” The disputed claims seek to preempt in the field of sandblast stencils all “rubber compounds” or “rubber-rosin glues” of whatever composition all “inherently blasting resistant hackings” and all “normally pressure-sensitive blasting resistant adhesive materials.” Such abstractions as “flexibility,” “toughness,” “resilience,” “pressure-sensitivity,” “blasting resistance,” or even “rubber compounds” would seem to be unpatentable. As thus indefinitely phrased, the claims in issue have been anticipated by the prior art. The qualities described in the claims had been in the public domain as well as in various patents. The use of rubber or rubber compounds was clearly indicated in previous' patents. A synthetic rubber compound containing glue is clearly suggested by Smith patent 1,882,526. The use of “pressure-sensitive adhesive material” is common in making stencils for painting automobiles, in manufacturing insoles, and elsewhere. It is also suggested in the Smith patent, where the adhesive required moistening. If plaintiff has an adhesive which is patentably different, it has failed to describe that difference by referring to it as “pressure-sensitive.” Insofar as plaintiff’s description of the “rubber compound” is sufficiently specific to distinguish the prior art, a patent has been authorized by the lower court. The judgment of the trial court' is affirmed. The action is pursuant to Rev.Stat. § 4915, 35 U.S.O. (1934) § 63, 35 U.S.O.A. § 63. Oroskey patent 445,241. Carufel patent 1,560,407. Smith patent 1,882,526. See General Electric Co. v. Wabash Co., 1938, 304 U.S. 364, 368, 58 S.Ct. 899, 82 L.Ed. 1402. Rev.Stat. § 4888, 35 U.S.C. (1934) § 33, 35 U.S.C.A. § 33; General Electric Co. v. Wabash Co., 1938, 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402; Koebel v. Coe, 1939, 70 App.D.C. 261, 105 F.2d 784. The claim held to be too indefinite in the General Electric case was: “A filament for electric incandescent lamps or other devices, composed substantially of tungsten and made up mainly of a number of comparatively large grains of such size and contour as to prevent substantial sagging and offsetting during a normal or commercially useful life for such a lamp or other device.” 304 U.S. at page 368, 58 S.Ct. at page 901, 82 L.Ed. 1402. The invalid claim in the Koebel case was: “a setting for diamonds consisting of a base metal alloy the principal ingredients of which are molybdenum, copper and cobalt so proportioned as to be capable of being sintered at a temperature below that of the critical point at which the desirable qualities of the diamond are adversely affected, said alloy when so sintered having the property of wetting the diamonds coupled with a lack of avidity for the carbon thereof and, when thereafter cooled, of closely adhering to it.” Cf. General Electric Co. v. Wabash Co., 1938, 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402. See notes 2, 3 and 4 supra, and text. Drew patent 1,760,820, Reissue 19,-128; Ellis patent 1,830,428. See note 4 supra. 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_rtcouns

E

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". COMMISSIONER OF INTERNAL REVENUE v. LAMONT. No. 37, Docket 19857. Circuit Court of Appeals, Second Circuit. July 8, 1946. I. Henry Kutz, Sp. Asst, to Atty. Gen. (Sewall Key, Acting Asst. Atty. Gen., and J. Louis Monarch, Sp. Asst, to Atty. Gen., on the brief), for petitioner. Josiah Willard, of New York City (White & Case and Walter S. Orr, all of New York City, on the brief), for respondent. Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges. CLARK, Circuit Judge. The question here is whether partnership capital losses may be offset against individual capital gains in computing a partner’s income tax for 1937 under the Revenue Act of 1936. The respondent taxpayer had reported both personal income and his distributable share of the income of J. P. Morgan & Co., a New York partnership which also did business in Philadelphia under the name of Drexel & Co. In addition, however, he showed individual capital gains and losses leaving a net taxable capital gain of $55,249.96, against which he would set off his share of partnership capital losses. The partnership had sustained losses in the sale of capital assets of $1,825,885.40, as computed under the differing percentages, according to duration of ownership, of § 117(a), Revenue Act of 1936, 26 U.S.C.A. Int.Rev.Acts, page 873. After giving effect to the deduction of $2,000 allowed the partnership under § 117(d), the taxpayer’s share of the loss, based on his distributive share in partnership income of 9.980335 per cent, would be more than three times his individual capital gain. Taxpayer was also a member of certain syndicates which have been held to be partnerships and as to which like questions arise, involving comparatively small amounts, though increasing the over-plus of the offset, if allowable. The Commissioner, disallowing the claimed deduction, determined a deficiency in the tax paid; but on petition to the Tax Court, Judge Kern ruled in favor of taxpayer, in a considered opinion, 3 T. C. 1217, and ordered a refund for overpayment. The Commissioner petitions for review. There being no dispute as to the underlying facts, the issue must turn upon the correct interpretation of the statute. As the Commissioner says: “It is not disputed that this cross deduction was permitted in the Revenue Act of 1932 and permission to take it restored by the Revenue Act of 1938.” The Commissioner, however, relies not only upon the language of the Revenue Acts of 1934 and 1936— identical so far as this issue is concerned— but, perhaps even more, on the legislative history of the statutory provisions, which we must examine in some detail. And since this is a matter of statutory interpretation, it is a case, on the Commissioner’s contention, of “a clear-cut mistake of law,” Commissioner of Internal Revenue v. Wilcox, 66 S.Ct. 546, 550, and hence within our power of review, notwithstanding the limitations stated in Dobson v. Commissioner of Internal Revenue, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248. In 1932, capital gains, taxed at 12% per cent, were limited by definition of “capital assets” to property held by the taxpayer for more than two years, Revenue Act of 1932, c. 209, § 101(a) and (c) (8), 47 Stat. 169, 26 U.S.C.A. Int.Rev.Acts, pages 504, 505; but a special provision — intended to prevent the growing custom of deducting losses on sales of securities following the fall in prices after 1929 — restricted losses from sales or exchanges of stocks and bonds not capital assets to only the amount realized from gains from such sales. Id., § 23(r) (1), 26 U.S.C.A. Int.Rev.Acts, page 493. See H.R.Rep.No.708, 72d Cong., 1st Sess., 12, 13, and Sen.Rep.No.665, 72d Cong., 1st Sess., 10, both reprinted in 1939-1 Cum. Bull. (Part 2) 457, 465, 496, 503; Neuberger v. Commissioner of Internal Revenue, 311 U.S. 83, 85, 61 S.Ct. 97, 85 L.Ed. 58. There was also a provision, § 186, 26 U.S.C.A. Int.Rev.Acts, page 545, most significant for our later history, providing for the taxation to each individual partner of his share not only of the ordinary net income, but also of capital net gain and capital net loss “at the rates and in the manner provided in section 101(a) and (b), relating to capital net gains and losses.” It will be well first to state succinctly the statutory changes before we pass to a consideration of the legislative background. In the National Industrial Recovery Act of June 16, 1933, c. 90, 48 Stat. 195, there was included an amendment, effective January 1, 1933, to the provisions for “Tax of Partners,” Revenue Act of 1932, § 182(a), 26 U.S.C.A. Int.Rev.Acts, page 544, stating that “No part of any loss disallowed to a partnership as a deduction by section 23 (r) shall be allowed as a deduction to a member of such partnership in computing net income.” This had the effect of disallowing such deductions as are here claimed. But the 1934 Act made a substantial change in the taxation of capital gains and losses, as a consequence of which this amendment and the entire provision of § 23(r) (1), as well as the general partnership provision of § 186, all dropped out of the statute. By the new plan the gain or loss upon the sale or exchange of a capital asset (no longer restricted to property held by the taxpayer for more than two years) was computed upon a sliding scale depending upon the time held, beginning at 100 per cent where the property had been held for a year or less and declining to 30 per cent where it had been held for more than ten years. And capital losses were allowed only to the extent of $2,000 over the amount used to offset capital gains. Revenue Act of 1934, c. 277, § 117, 48 Stat. 680, 26 U.S.C.A. Int.Rev.Acts, page 707. The provisions as to partnership returns, including that for the computation of the net income of the partnership — of which each partner must return his distributive share as a part of his net income — “in the same manner and on the same basis as in the case of an individual” were continued, except for the omission of § 186, as noted above. Id. Supp. F, particularly §§ 182, 183, 26 U.S.C.A. Int.Rev.Acts, page 728. These sections were re-enacted in the Revenue Act of 1936, c. 690, 49 Stat. 1648, 26 U.S.C.A. Int.Rev.Acts, page 897. But in the 1938 Act, provision was made for segregation in the partnership return of the items of capital gains and losses, and, in quite specific terms, for the inclusion of the individual partner’s “distributive share” of the partnership capital gains and losses in computing his net income. Revenue Act of 1938, c. 289, §§ 182, 183, 52 Stat. 447, 26 U.S.C.A. Int.Rev.Acts, pages 1085, 1086. Both taxpayer and the court below stress the omission of the 1933 amendment from later acts; but their chief reliance is upon the Neuberger case, supra. In fact taxpayer originally did not claim the deduction, but filed a claim for refund based upon that decision after its announcement in November, 1940. In relying on this case they are forced to the interesting analysis of having to repudiate as ill-considered dictum what the opinion says about the course of legislative history, here important, in order to stress what they consider the implications of the actual holding. That case and the companion case of Mosbacher v. United States, 311 U.S. 619, 61 S.Ct. 167, 85 L.Ed. 393, concerned income taxes for the year 1932, turning upon the converse of the case here, i. e., the offsetting of individual stock losses against partnership profits. As we have seen, these were not “capital assets” as the law then stood. The Court, three justices dissenting, allowed the deduction. This was a reversal of the decision below, Neuberger v. Commissioner of Internal Revenue, 2 Cir., 104 F.2d 649, which followed Johnston v. Commissioner of Internal Revenue, 2 Cir., 86 F.2d 732, 734, certiorari denied 301 U.S. 683, 57 S.Ct. 784, 81 L.Ed. 1341, where this court had held that under the 1932 Act the partnership was a “tax computing unit,” and that the 1933 amendment was only “inserted out of abundant caution when that law was passed and as but a clarification of existing law.” The Supreme Court said, however, 311 U.S. 83, 88, 61 S.Ct. 97, 101, 85 L.Ed. 58, that in this Act “Congress recognized the partnership both as a business unit and as an association of individuals” and, finding no specific prohibition of the deduction of individual-losses from the partner’s distributive share of partnership income, held it allowable. And this, so the argument goes, leads to a like holding in the converse situation here in view of the omission of the 1933 amendment from later acts. But the Supreme Court itself had a different interpretation. It held its conclusion to be “confirmed by the a“ction of Congress since 1932.” Citing first the 1933 amendment as reaching “the converse of the instant case” (i. e., the case here), it continued: “More significantly, in 1938, after the Treasury Department had ruled to the contrary [citing the Treasury Regulations, infra], Congress expressly provided for the deduction of individual security losses from similar partnership gains [citing the 1938 Act, supra, and the House Committee Report, infra]. That the amendment of 1933 changed and the Revenue Act of 1938 restored the law of 1932 as we have explained it is plain from the legislative history of the two Acts and of § 23(r) (1).” Neuberger v. Commissioner of Internal Revenue, supra, 311 U.S. 83, 89, 90, 61 S.Ct. 97, 102, 85 L.Ed. 58. We, too, think this conclusion is plain from the legislative history, and we think it is made incontrovertible by the repeated statements made as to the purpose and intent of the 1934 Act during its passage. Harrison v. Northern Trust Co., 317 U.S. 476, 63 S.Ct. 361, 87 L.Ed. 407. The court below considered this inconclusive. But we do not see how it can be so regarded; on the contrary, it seems unusually convincing. Moreover, it is supported by both contemporaneous and subsequent interpretation without a dissent, so far as we can discover, until the recent rulings of the Tax Court. The first step in this legislative development, the 1933 amendment, occurred under dramatic circumstances which colored and conditioned the later steps. On May 23 and 24, 1933, the Senate Committee on Banking and Currency, conducting its now famous investigation, had heard the testimony of Mr. J. P. Morgan, head of the taxpayer’s firm, showing the reduction in taxes paid by the Morgan partners from 1929 through 1930 to 1931 and 1932, in which latter years not a single partner paid any tax. Hearings before the Senate Committee on Banking and Currency, 73d Cong., 1st Sess., Pt. 1, 53, 72, 198-200; Sen. Rep.No.1455, 73d Cong., 2d Sess., 321; Pecora, Wall Street under Oath, 1939, c. 9. There was like testimony as to another great Wall Street firm, and this was highlighted by Mr. Morgan’s testimony that he had continued to pay income taxes to the British government' — under a system not taxing capital gains and losses — during the years he had paid none to the United States. There was no doubt, as shown in the congressional discussion, of the intent to correct this situation at once, and then more permanently in a more general tax law. See, e. g., 77 Cong.Rec. 4101-4102, 4152, 4386, 4527-4528, 5068, 5416-5419, 5697, and elsewhere passim. See also H.Res. 183, 77 Cong.Rec. 5701, authorizing the House Committee on Ways and Means, either as a whole or as a subcommittee, to sit in vacation to investigate methods of improving and simplifying the revenue laws and of preventing their evasion and avoidance, as well as possible new sources of revenue. Tyler and Ohl, The Revenue Act of 1934, 83 U. of Pa.L.Rev. 607, 1935. The Commissioner’s brief sets forth in inclusive detail and with appropriate citations the report of the subcommittee thus constituted and the course of developments which led to the shaping of the final bill. For brevity’s sake we omit this detailed history beyond reference to the difference in point of view which developed between the congressional committee, supporting disallowance of any partnership loss against individual income, and treasury officials, who feared that thereby many small partnerships might suffer unfair treatment: Not until the bill reached the Senate was the final settlement arrived at of the intermediate position represented in the statute as enacted whereby there was allowed a deduction of $2,000 for capital losses beyond capital gains and no more. See Revenue Acts of 1934 and 1936, § 117(d), 26 U.S.C.A. Int.Rev.Acts, pages 708, 875, supra. That there was to be no more, the important point for us here, was expressly stated in the committee reports. Thus the House Report, after referring to the terms of § 117(d) (as it then was, before the $2,000 allowance had been inserted), said: “Thus the partnership can have no capital net loss and therefore the partner can have no deduction on account of any capital loss of the partnership.” H.R.Rep.No.704, 73d Cong., 2d Sess., reprinted in 1939-1 Cum. Bull. (Part 2) 554, 567. This was reiterated Explicitly later in explaining why the change in definition of capital assets made necessary the omission of the 1933 amendment — an explanation repeated as to the omission of § 186 of the 1932 Act. Id. 579. In the Senate the deduction of capital losses in excess of capital gains to the extent of $2,000 was allowed in order to protect “the little taxpayer with little or no capital from being assessed a tax which he may be unable to pay.” Sen.Rep.No.558, 73 Cong., 2d Sess., 12, reprinted in 1939-1 Cum.Bull. (Part 2) 586, 595. Beyond that the Senate Finance Committee Report either quoted from or was practically identical with the House Report stated above. Id. 600, 617, 618. In presenting the bill to the Senate, Senator Harrison, as chairman of the Finance Committee, said: “Under the bill, the partnership will be permitted to deduct losses on the sale of capital assets only to the extent of gains from such sales, and the partner can have no deduction on account of any capital net loss of the partnership. In this way the main source of the tax avoidance by banking and security partnerships in the past has been eliminated. It i§ anticipated that this change alone will result in $5,000,000 additional revenue.” 78 Cong.Rec. 5847. This general position was supported in statements on the part of managers in the House, by strong opponents of the legislation in objecting to its consequences, by the text writers cited supra, Tyler and Ohl, 83 U. of Pa.L.Rev. 607, 630, 631, by Mr. Mertens, in Volume 6 of his Law of Federal Income Taxation, § 35.16, pp. 117, 118, 120, and by the Neuberger case, supra. Moreover, the same conclusion was embodied in Treasury Regulations 94, promulgated under the Revenue Act of 1936, arts. 181-1, 182-1, 183-1, 184-1, 185-1, 187-1, 187-2, which under well-settled principles— indeed referred to in the Neuberger case— are to be given great weight except when clearly contrary to congressional intent. And the legislative history of the 1938 Act, restoring the deduction, explicitly adopts the same view. Thus the Subcommittee of the Committee on Ways and Means gave the correct explanation for the elimination of the 1933 amendment when it said that this provision “was not retained by the Revenue Act ‘of 1934 for the reason that the elimination of section 186 of the Revenue Act of 1932 by the 1934 Act, which permitted the allocation of partnership capital net losses to vthe individual members, rendered such provision unnecessary.” The report goes on to point out that the partnership net income was determined in the same manner as that of the individual and thus subject to the provisions of § 117(a) and the limitations of § 117(d) of the 1934 and 1936 Acts. “The net result was that the net capital losses realized by partner-' ships were no longer available to the individual partners as offsets against either their ordinary incomes or their capital gains.” Proposed Revision of the Revenue Laws of 1938, Report of the Subcommittee of the Committee on Ways and Means, 75th Cong., 3d Sess., 43, 44. This recommendation was adopted by the full committee, which'noted the “departure from the principle adopted in the Revenue Acts of 1934 and 1936 to the extent that it enables capital net losses of the partnership in the respective categories to be applied, on the basis of the partners’ allocable shares thereof, to offset their individual capital net gains in the same categories.” H.R.Rep.No.1860, 75th Cong., 3d Sess., 42, 43, reprinted in 1939-1 Cum.Bull. (Part 2) 728, 759. Conceding their trend and meaning, taxpayer and the Tax Court discount the interpretative value of these later actions by Congress, though they were relied on as persuasive in the Neuberger case itself. See also United States v. Stewart, 311 U.S. 60, 64, 61 S.Ct. 102, 85 L.Ed. 40. It is also suggested that they were induced by the lower court decisions which were disapproved in the Neuberger case. But the reports themselves show that they go on a different rationale, the one in fact which we accept and adopt. That is in short that the elimination of § 186 of the 1932 Act and the change in system of computing and allocating capital net losses and gains, including the specific allowance of the $2,000 deduction, rendered any further prohibition of a deduction unnecessary to make clear the intent of the 1934 and 1936 Acts. Under the circumstances, the inclusion of a new and more extensive negative — which is the real demand of taxpayer and the Tax Court — would have seemed a work of supererogation indeed. We think the statute therefore requires the tax as claimed by the Commissioner. Accordingly the decision of the Tax Court is reversed for computation of the tax as herein stated. CHASE, Circuit Judge, concurs in result. The opinion of the Tax Court states: "This would cover the situation here, except that the disallowance applies to ordinary losses and not capital losses.” But, as appears above, losses on sales of stocks and bonds held for two years or less were not capital losses under the 1932 Act. As the Commissioner points out, the court below was in error in regarding the Mosbacher case as identical with the present one. Compare the case below, 30 F.Supp. 703, 706, 707, 90 Ct.Cl. 247, Findings 8, 15. In this case and in Goodbody v. Commissioner, 2 T.C. 700, 701, involving the converse or Neuberger situation and distinguishing the present one. The earlier case of Wadel v. Commissioner, 44 B.T.A. 1042, was contra. Each of these cases is by a different tax judge. The opinion below also cites Jennings v. Commissioner of Internal Revenue, 5 Cir., 110 F.2d 945, certiorari denied Helvering v. Jennings, 311 U.S. 704, 61 S.Ct. 169, 85 L.Ed. 457; but this was the case approved and foUowed in the Neuberger case and adds nothing more. “Second, the provisions of existing law which prohibit the partners from ■using stock losses disallowed to the partnership in computing their individual net incomes have been omitted from the bill. This change was necessary because such provisions applied only to losses on stocks and bonds held for not more than two years. The bill, in section .117, treats all capital losses alike whether from stocks, bonds, or other property. Under the proposed method of treating capital gains and losses, a partner will not be permitted to reduce his income by any capital losses disallowed to the partnership. * * * “Section 186 (Revenue Act of 1932). Capital net gains and losses: This section is omitted on account of the change in policy in taxing capital gains and losses.” 1939-1 Cum.Bull. (Part 2) 579. Chairman Doughton of the Committee on Ways and Means, 78 Cong.Rec. 2511, and 2512, where he read the letter of the Secretary of the Treasury; Committee Member Jenkins, 78 Cong.Rec. 2620; Chairman Hill of the Subcommittee on Tax Avoidance, 78 Cong.Rec. 2663 (the latter’s reference to “ordinary income” in the statement “as to partnerships,” that we “do not permit any net capital losses to be offset against the ordinary income of the individual partner,” is shown by the context to mean individual income, and not, as taxpayer urges, non-capital income of the partner). See testimony of M. L. Seidman representing the New York Board of Trade and brief of the American Society of Certified Public Accountants, Senate Hearings before Committee on Finance on H. R.7835, 73d Cong., 2d Sess., 40, 41, 48. 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:

songer_initiate

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. Arnold T. FORSETH, Gerald R. Formsma and Constance Y. Formsma, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 86-1209. United States Court of Appeals, Seventh Circuit. Argued Oct. 1, 1987. Decided May 6, 1988. Edward G. Lavery, Hercules & Lavery, Dallas, Tex., for petitioners-appellants. Kenneth L. Greene, Tax Div., Dept, of Justice, Washington, D.C., for respondent-appellee. Before CUDAHY and MANION, Circuit Judges, and WILL, Senior District Judge. The Honorable Hubert L. Will, Senior District Judge for the Northern District of Illinois, sitting by designation. WILL, Senior District Judge. This is a somewhat complicated case involving the tax treatment of losses allegedly incurred by taxpayers as a result of their investment in a commodity straddle tax shelter. Although here we are dealing with only three appellants (Mr. and Mrs. Formsma and Mr. Forseth), the case was originally a consolidated trial at the tax court level involving several different persons similarly situated. The five other parties involved in the tax case have already appealed the tax court’s adverse decision to the Fifth, Sixth, Ninth, and Eleventh Circuits. In each of these appeals, the decision of the tax court has been affirmed. Bramblett v. Commissioner, 810 F.2d 197 (5th Cir.1987) (unpublished opinion); Mahoney v. Commissioner, 808 F.2d 1219 (6th Cir.1987); Enrici v. Commissioner, 813 F.2d 293 (9th Cir.1987); Wooldridge v. Commissioner, 800 F.2d 266 (11th Cir.1986). Moreover, in each of these cases, the other appellants (who were represented by the same counsel as the instant appellants) raised issues identical to the issues appellants are now raising here. Thus, it appears we have a serious case of multiple forum shopping. The particular facts of the case are detailed in the lengthy published opinion below. Forseth v. Commissioner, 85 T.C. 127 (1985). Essentially, the tax court held that the purported commodities trades giving rise to the “losses” allegedly incurred by appellants were shams and accordingly that such losses were not deductible. In concluding that the entire tax straddle arrangement was an artifice, the tax court found that Interact (an advisory firm providing informational services as to how to contact broker-traders who deal in foreign markets), LMEI (a commodity firm), and LMEC (LMEI’s successor) took advisory fees and alleged “margin deposits” from appellants; entered into forward contracts for gold or platinum with appellants on an unregulated foreign market for which there were no published prices (and without laying off the contracts with any real third-party brokers); created fictitious losses for appellants by closing out “losing” positions at prices and terms set by LMEI/LMEC to generate a theoretical tax loss that largely offset the type and amount of income the taxpayers needed to shelter; and then closed out the winning position in a subsequent year at a price set by LMEI/LMEC to generate losses that uniformly equaled the amount of margin deposits, which were in reality fees for delivering the artificial tax “losses.” Thus, the tax court concluded that the straddle transactions were shams lacking economic substance because the appellants had really just paid a fee to buy fictitiously generated tax losses. Accordingly, the tax court disallowed the de-ductibility of the tax losses. Discussion In the instant case, taxpayers, Mr. For-seth and Mr. and Mrs. Formsma, appeal the tax court’s decision as to the deductibility of the tax losses sustained by them. To be deductible under the Code a transaction must be “entered into for profit.” I.R.C. § 165(c). As the Sixth Circuit has noted, although this phrase is “a term of art that has not been interpreted the same by all courts, it is clear that the transaction cannot be a complete sham. If it is a sham, then such niceties as whether it was ‘primarily’ for profit, or whether the test is an objective or subjective one are simply not involved. Regardless of the definition, the transaction must be bona fide.” Mahoney v. Commissioner, 808 F.2d 1219, 1220 (6th Cir.1987). Here, because the tax court determined that the commodities straddle transactions were a sham, it never reached the “entered for profit” issue. The tax court’s finding that the forward contracts were shams, is reviewable under the “clearly erroneous” standard because it is “essentially a factual determination.” Thompson v. Commissioner, 631 F.2d 642, 646 (9th Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3110, 69 L.Ed.2d 1972 (1981). See also Enrici, supra, 813 F.2d at 295. In finding that the alleged gold and platinum straddles were no more than preconceived shams, the tax court relied on the following six factors: 1. The remarkable correlation of the tax needs of each taxpayer and the nature and the amount of tax losses delivered by LMEC/LMEI and Interact. Tax losses were correlated to tax needs in two ways: first, the taxpayer generally suffered losses equal to the amount of income each taxpayer needed to shelter; and second, the type of loss created matched the type of income that needed to be sheltered. 2. Interact’s “extraordinary” ability to predict the amount of losses that would be incurred depending upon the margins posted. 3. The willingness of LMEI/LMEC to commence trading in clients’ accounts before receipt of the required margin deposits with the result that they were not protected against client default. Had actual bona fide trades been carried out on behalf of appellants, at least some appellants would have been required to post additional margin deposits to cover trading losses. 4. The margin balances in the accounts were “zeroed out” by closing out the clients’ gains at prices that made the taxpayers’ overall losses equal the margin deposits the appellants initially placed with LMEI/LMEC. 5. Opposite positions were never actually entered into with market making brokers to “lay off” trades. 6. The apparent manipulation of certain trading records by LMEI/LMEC. Forseth v. Commissioner, 85 T.C. 127, 149-166 (1985). To demonstrate that the trades were not shams, appellants primarily argue that many of these grounds would also have existed even if they had entered into straddles on the open commodities market, and that the losses suffered in their forward straddles were in fact correlated to the losses and gains they would have suffered in the American commodities market. Each court of appeals that has reviewed the tax court’s opinion has rejected this argument, however. For example, in Enrici, supra, 813 F.2d at 296, the Ninth Circuit stated that even if these factual assertions are accepted as true, the Tax Court was entitled to infer from both the precision of the tax advantages obtained and the undocumented nature of the transactions that the parties were merely rigging paper prices, losses, and gains to effectuate a sale of generated tax losses. The fact that Congress may have permitted similar tax advantages to be obtained from real commodities straddles does not make the losses from these sham transactions deductible. Thus, the tax court’s finding that the entire tax straddle arrangement was an artifice, the essence of which was the sale of bogus tax losses to appellants for a fee, does not appear to be clearly erroneous; rather the finding appears to be right on the mark. As this circuit stated in Saviano v. Commissioner, 765 F.2d 643, 654 (7th Cir.1985), “[t]he freedom to arrange one’s affairs to minimize taxes does not include the right to engage in financial fantasies with the expectation that the Internal Revenue Service will play along. The Commissioner and the courts are empowered, and in fact duty-bound, to look beyond the contrived forms of the transactions to their economic substance and to apply the tax laws accordingly.” In addition to the above, one more item needs to be addressed: whether the tax court correctly found that appellants were liable for a negligence penalty under I.R.C. § 6653(a). Section 6653(a) imposes an addition to tax when any part of an underpayment of income tax is due to negligence or intentional disregard of the rules and regulations. Negligence, for the purpose of § 6653(a), is defined as a lack of due care or failure to do what a reasonable and ordinary prudent person would do under the circumstances. Marcello v. Commissioner, 380 F.2d 499, 506 (5th Cir.1967). The determination of the Commissioner is presumptively correct. See Beatty v. Commissioner, 676 F.2d 150, 152 (5th Cir.1982). The taxpayer has the burden of showing that he was not negligent, and the tax court’s determination that a taxpayer is liable for a negligence penalty under § 6653 is subject to the clearly erroneous rule. See Enrici, supra, 813 F.2d at 296; Patterson v. Commissioner, 740 F.2d 927, 930 (11th Cir.1984). Here, the tax court’s determination that appellants did not meet their burden does not appear to be clearly erroneous in light of the fact that in reporting their “losses” they gave as little information as possible on their tax returns. For example, Forseth reported his loss as “Platinum Contract Cancelled” and the Formsmas reported their loss only as “Contract Can-celled.” Moreover, none of the taxpayers checked the “yes” box in response to the question on the Schedule B’s filed with their 1980 returns that asked if they had any interest in a foreign account. At the very least, even if Mr. and Mrs. Formsma and Mr. Forseth were not knowing participants in the scheme, they obviously paid little or no attention to the rather suspect workings of LMEI/LMEC, and thus can be said to have acted without due care. The tax court must therefore be affirmed on this ground as well. Conclusion For the reasons set forth above, like the Fifth, Sixth, Ninth, and Eleventh Circuits in the related cases, the decision of the tax court is Affirmed. . The Formsmas, in addition to arguing that the forward contracts were not shams, contend that the tax court erred in finding that the $2,000 advisory fee paid to Interact in 1980 was nondeductible. Specifically, the Formsmas argue that such fee is deductible under I.R.C. § 212 because it falls under the category of "tax advice.” But if the forward contracts were shams, then the fee could not have been spent for production of income, nor for informational services concerning bona fide investments, nor for tax advice. Thus, we also affirm the tax court’s finding on the disallowance of the fee. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:

songer_appel1_7_4

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the citizenship of this litigant as indicated in the opinion. In re Ira Laurence HUNTER, Debtor. Edwin SCHWEIG, Plaintiff-Appellant, v. Ira Laurence HUNTER, Defendant-Appellee. No. 85-5105. United States Court of Appeals, Eleventh Circuit. Jan. 30, 1986. See also, Bkrtcy., 32 B.R. 140. Kenny Nachwalter & Seymour, P.A., Thomas H. Seymour, Miami, Fla., for plaintiff-appellant. Ian M. Comisky and Russell S. Bohn, West Palm Beach, Fla., for defendant-ap-pellee. Before HATCHETT and CLARK, Circuit Judges, and ALLGOOD , District Judge Honorable Clarence W. Allgood, Senior U.S. District Judge, Northern District of Alabama, sitting by designation. ALLGOOD, Senior District Judge: Ira Laurence Hunter was the manager of a Miami, Florida branch office of Thomson McKinnon Securities, Inc., a securities broker. Hunter was also an account executive, engaged in retail sales for Thomas McKinnon, and managed the account of Edwin Schweig. In January, 1982 Hunter contacted Schweig about obtaining a personal loan in the amount of $168,000. Hunter suggested that Schweig open a margin account with Thomson McKinnon in order to facilitate the transfer of funds. Schweig placed 24,000 shares of stock pledged to Thomson McKinnon into the account. Thomson McKinnon then issued Schweig a check for $168,000, which he endorsed and delivered to Hunter in exchange for a promissory note in that amount. Schweig never questioned Hunter about his financial condition — personal or otherwise. Schweig also did not ask for a financial statement or run a credit check before making the loan. Hunter ultimately defaulted on the note after partially repaying it by depositing funds in the margin account. In June, 1982 Hunter left Thomson McKinnon and in July, 1982 was suspended as a registered representative of the New York Stock Exchange. On October 5, 1982 Hunter filed a petition in the United States Bankruptcy Court for the Southern District of Florida. On April 6, 1983, Schweig filed a complaint asking for a determination on the dischargeability of the debt. Schweig contended that Hunter had been heavily engaged in a variety of gambling activities for a number of years, and that Hunter’s failure to disclose his gambling activities and his past embezzlement of funds from customers’ accounts amounted to fraud. He therefore contends that the debt owed him by Hunter is non-dischargeable under 11 U.S.C. § 523(a)(2)(A). The Bankruptcy Court found that the facts alleged by Schweig, if proven, would be insufficient to establish fraud that would preclude a discharge in bankruptcy. Accordingly, the complaint was dismissed with prejudice and relief from the automatic stay was denied. The District Court affirmed and this appeal followed. On appeal, the appellant contends that the District Court erred in: (1) finding that Hunter’s scheme did not as a matter of law constitute fraud, .and (2) in declining to order the Bankruptcy Court to lift the automatic stay so that Schweig could bring an action in state or federal court for common law fraud. Because of the very nature and philosophy of the Bankruptcy law the exceptions to dischargeability are to be construed strictly, Gleason v. Thaw, 236 U.S. 558, 35 S.Ct. 287, 59 L.Ed. 717 (1915), and the burden is on the creditor to prove the exception. Danns v. Household Finance Corp., 558 F.2d 114 (2d Cir.1977). Schweig failed to allege any express, affirmative misrepresentations. The basis of his complaint was that Hunter had a duty to voluntarily disclose his gambling debts and unstable financial conditions and his failure to do so amounted to obtaining funds through false pretenses, a false representation, or actual fraud thus making the debt not dischargeable. In order to preclude the discharge of a particular debt because of a debtor’s false representation, a creditor must prove that: the debtor made a false representation with the purpose and intention of deceiving the creditor; the creditor relied on such representation; his reliance was reasonably founded; and the creditor sustained a loss as a result of the representation. See, In re Lange, 40 B.R. 554 (D.C. Ohio 1984); In re McGrath, 7 B.R. 496 (D.C.N.Y.1980); In re Hunt, 30 B.R. 425 (M.D.Tenn.1983). The debtor must be guilty of positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, and not implied fraud, or fraud in law, which may exist without the imputation of bad faith or immorality. Neal v. Clark, 95 U.S. 704, 5 Otto 704, 24 L.Ed. 586 (1887); Gabellini v. Rega, 724 F.2d 579 (7th Cir.1984); In re Pedrazzini, 644 F.2d 756 (9th Cir.1981); Massachusetts v. Hale, 618 F.2d 143 (1st Cir.1980); In re Preston, 47 B.R. 354 (E.D.Va.1984); In re Byrd, 4 C.B.C. 205, 9 B.R. 357 (D.D.C.1981); [1978] U.S.Code Cong. & Ad.News, 6453. The burden is on the creditor to prove the debt- or’s culpability by clear and convincing evidence. In re O’Karma, 46 B.R. 422 (D.C. Pa.1984); In re Schwartz, 45 B.R. 354 (S.D. N.Y.1985); In re Browning, 31 B.R. 995 (S.D.Ohio 1983); In re Musser, 24 B.R. 913 (W.D.Va.1982); In re Colasante, 12 B.R. 635 (E.D.Pa.1981). In spite of Schweig’s protestations to the contrary, Davison-Paxon Co. v. Caldwell, 115 F.2d 189 (5th Cir.1941), cert. denied 313 U.S. 564, 61 S.Ct. 841, 85 L.Ed. 1523 (1941), remains the law of this circuit on failure to disclose and states that “not making full disclosure ... is not within the exception.” The court was clear that there must be actual overt false pretense or representation to come within the exception. The absence of explicit representations concerning financial conditions by the bankrupt, requires a holding that there have been no false pretenses or false representations. Id. The' Bankruptcy Court correctly noted that: ... Bankruptcy law does not mandate that a debtor voluntarily disclose, without solicitation by a creditor, his personal habits, tendencies, welfare and life style, such as marital and family reláted problems, alcoholism, compulsive gambling and current state of physical and mental health, all of which may affect, directly and indirectly, the debtor’s ability to satisfy his debts and obligations to disclose such matters to Schweig, unless Schweig requested information of this nature. To require such a myriad of unbounded unsolicited disclosures by a debtor can only lead to confusion in the minds of debtors as to the information which he may be required to reveal to a creditor. Schweig further contends that Hunter was his stockbroker which placed him in a special fiduciary relationship and which required application of securities law to this case. The Bankruptcy Judge found that Schweig and Hunter contemplated and consummated a personal loan. The record certainly supports that conclusion. The above statement of facts reveals an example of misplaced trust and failure to investigate creditworthiness or to ferret out ordinary credit information. This court does not believe the circumstances surrounding the failure to use ordinary precautionary measures prior to making a sizable loan warrant finding that the debtor was bound to volunteer or confess his transgressions, and concludes that the District Court’s decision to affirm the decision of the Bankruptcy Court must likewise be AFFIRMED. . 11 USCS § 523(a)(2)(A) as codified by the Bankruptcy Code of 1978 provides: § 523. Exceptions to discharge (a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for obtaining money, property, services, or an extension, renewal, or refinance of credit, by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider’s financial condition; or (B) use of a statement in writing— (i) that is materially false; (ii) respecting the debtor's or an insider’s financial condition; (iii) on which the creditor to whom the debtor is liable for obtaining such money, property, services, or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive; Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the citizenship of this litigant as indicated in the opinion? A. not ascertained B. US citizen C. alien Answer:

songer_genresp1

C

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. AIR LINE EMPLOYEES ASSOCIATION, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Allegheny Airlines, Inc., Intervenor. No. 22243. United States Court of Appeals District of Columbia Circuit. Argued March 25, 1969. Decided May 2, 1969. Mr. George Kaufmann, Washington, D. C., for petitioner. Mr. J. Michael Roach, Atty., Civil Aeronautics Board, with whom Messrs. Joseph B. Goldman, General Counsel, 0. D. Ozment, Deputy General Counsel, Warren L. Sharfman, Associate General Counsel, Litigation and Research, and Gilbert Amyot, Atty., Civil Aeronautics Board, and Howard E. Shapiro, Atty., Department of Justice, were on the brief, for respondent. Mr. William J. Curtin, Washington, D. C., with whom Messrs. Edwin I. Colodny and Robert J. Hickey, Washington, D. C., were on the brief, for inter-venor. Before Burger, Wright and Leven-Thal, Circuit Judges. PER CURIAM: This petition challenges an order of the Civil Aeronautics Board approving the merger of Lake Central Airlines into Allegheny Airlines. Petitioner, the Airline Employees Association (ALEA), argues that Allegheny was required by law to assume some or all of the terms of Lake Central’s collective agreement with ALEA, and that the Board’s refusal to require assumption of the agreement as a condition of the merger vitiates its order of approval. We find that the Board has not abused its broad authority to approve airline mergers consistent with the public interest. Before the merger, Lake Central had about 400 passenger service employees, whom ALEA represented under a collective agreement with Lake Central. Allegheny’s 1100 to 1200 employees in the same craft or class were unrepresented. The merger thus created a unit of some 1500 to 1600 employees, about one fourth of whom had been represented by ALEA. Allegheny took the position that it would not, after the merger, recognize ALEA as the bargaining representative of the 400 former Lake Central employees, nor would it consider itself bound by the terms and conditions of the ALEA-Lake Central contract. In Allegheny’s view, it would have violated the Railway Labor Act if it had assumed the Lake Central-ALEA collective agreement. In the terms of the merger agreement, Allegheny did agree to accept the labor protective provisions which the Board had in the past insisted upon as a condition for approving airline mergers. The labor protective provisions, set forth by the Board in its decision in the United-Capital Merger Case, 33 C.A.B. 307, 342-347 (1961), provide generally that employees shall be no worse off after a merger than before, that costs to employees arising out of the merger shall be paid by the company, and that where employees are dismissed because of the merger, “dismissal allowances” shall be paid to them based upon their seniority. The provisions further permit arbitration of disputes arising out of the application of their terms at the request of either party. ALEA contends that the labor protective provisions were insufficient, and that under the doctrine of John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S. Ct. 909, 11 L.Ed.2d 898 (1964), Allegheny as the successor corporation was bound by the collective agreements adopted by the merged corporation, Laké Central. Alternatively, and hewing more closely to Wiley, ALEA contends ■that Allegheny must at least arbitrate the extent of the survival of the ALEA-Lake Central agreement, under the arbitration clause in that agreement. The trial examiner, whose decision the Board declined to review and hence adopted as its own, held that the labor protective provisions sufficiently protected the former Lake Central employees to render the merger consistent with the public interest. In his view, the Civil Aeronautics Board was not the proper forum in which to apply the subtleties of the Wiley doctrine to this merger. Insofar as any dispute existed over the representational rights of ALEA with respect to some or all of the passenger service employees in the merged unit, such a dispute was within the exclusive jurisdiction of the National Mediation Board under Section 2, Ninth, of the Railway Labor Act. Insofar as there was a dispute over the possible survival of some terms of the ALEA-Lake Central collective agreement, based upon principles of the law of contracts generally or of labor contracts in particular, such a dispute could be resolved by suit in an appropriate court. In the examiner’s view, the Board’s responsibility was confined to determining that the public interest — including as one component the interest of affected employees — was served by ■ the merger. He found that the employees were adequately protected. Allegheny had adopted the labor protective provisions. It proposed to pay its passenger service employees — including the former Lake Central employees — more than Lake Central had paid under its agreement with ALEA. Indeed, the examiner found: “ * * * In no case does the record disclose that the merger will result in. any economic injury to any of the employees of either company. * * * No furloughs of personnel are presently contemplated, and it is anticipated that normal attrition, reassignment, and growth will permit the absorption of any surplus employees which may result.” We agree with the approach taken by the examiner, whose opinion was adopted by the Board through its decision not to grant discretionary review. The Board’s duty is to impose upon airline mergers such conditions as will make them consistent with the public interest. It has properly regarded the protection of employee interests as part of that duty. It has not thereby transformed itself into a labor board or labor contract court, bound to pass on every question of labor law which might arise out of a merger — any more than it sits to determine all merger-related questions of tax, securities or corporation law, state or federal. On the Board’s undisputed findings of fact, the merger here in question has benefited or left unharmed all affected employees. Under these circumstances, we find no reason to disturb the Board’s conclusion that the merger, with respect to its effect upon passenger service employees, is consistent with the public interest. In affirming the Board on the merits, we have not considered the argument that ALEA failed to exhaust its administrative remedies. We do not lightly pass over jurisdictional questions, but our power to do so is clear where, as here, we reach the same result which a successful challenge to our jurisdiction would have achieved. Where, again as here, the decision for which review is sought is clearly right on the merits, and when resolution of the question involved appears to be of some public importance, we feel justified in exercising that power in the absence of clear lack of jurisdiction. Petition denied. . The Federal Aviation Act forbids airline mergers unless approved by the Board, 49 U.S.O. § 1378(a) (1) (1964), and provides that: “ * * * Unless * * * the Board finds that the consolidation, merger, purchase, lease, operating contract, or acquisition of control will not be consistent with the public interest or that the conditions of this section will not be fulfilled, it shall by order approve such consolidation, merger, purchase, lease, operating contract, or acquisition of control, upon such terms and conditions as it shall find to be just and reasonable and with such modifications as it may prescribe [.] * * * » 49 U.S.C. § 1378(b) (1964). . In Wiley, the union had a collective agreement, including an arbitration clause, with Interscience, which was merged into Wiley. Noting “the central role of arbitration in effectuating national labor policy,” 376 U.S. at 549, 84 S.Ct. at 914, the Supreme Court held that the arbitration clause in the Interscience contract was binding on Wiley, the successor corporation. In that ease as in this one, the relevant employees of the larger corporation were unrepresented, so that the union represented a minority of employees within the merged unit. . Under Reorganization Plan No. 3, 49 U.S.C. § 1324 (1964), the Board is granted power to delegate any of its functions to a hearing examiner, retaining a right of discretionary review over the actions of such delegates. Where discretionary review is declined or not sought, the action of the delegate becomes the action of the Board. . In this respect he followed Brotherhood of Railway & Steamship Clerks v. United Air Lines, Inc., 6 Cir., 325 F.2d 576 (1963), cert. dismissed as improvidently granted, 379 U.S. 26, 85 S.Ct. 183, 13 L.Ed.2d 173 (1964). The National Mediation Board, of course, has jurisdiction to decide only representational disputes “among a carrier’s employees as to who are the representatives of such employees.” 45 U.S.C. § 152, Ninth (1964). Thus there may exist under the Railway Labor Act disputes relating to representation which no official body has the power to resolve. See Brotherhood of Locomotive Firemen & Enginemen v. National Mediation Board. 133 U.S.App.D.C. 326, 410 F.2d 1025 (1969). . See Note 1, supra. . ALEA originally contended that the Board erred in its allocation of burden of proof in disputes arising under one provision of the labor protective provisions, but the Board’s clarification of its opinion in its brief in this case has led ALEA to abandon this challenge. . ALEA made the claim pressed here before the trial examiner, but did not seek discretionary review with the Board. Reorganization Plan No. 3, supra Note 3, § 1(c), provides that where discretionary review is not sought, or is denied, the examiner’s decision “shall, for all purposes, including appeal or review thereof, be deemed to be the action of the Board.” The Board urges that, despite this language, a party must still seek discretionary review from the Board before it can take an appeal to the courts. Even if the Board is correct in this contention, it still would not follow that we lack jurisdiction. Although ALEA did not seek discretionary review, another union, the Airline Dispatchers Association, did seek such review and it was denied. ALEA contends that exhaustion of remedies by one party preserves the right of court review for a similarly situated party. See City of Pittsburgh v. Federal Power Commission, 99 U.S.App.D.C. 113, 237 F.2d 741 (1956). . Pan American World Airways, Inc. v. C. A. B., 129 U.S.App.D.C. 159, 392 F.2d 483 (1968). 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_opinstat

B

What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. Kurt Karl Friedrich HEGERICH, Appellant, v. Albert DEL GUERCIO, District Director, Immigration and Naturalization Service, Los Angeles, California, Appellee. No. 15577. United States Court of Appeals Ninth Circuit. May 12, 1958. Harry Wolpin, Los Angeles, Cal., for appellant. Laughlin E. Waters, U. S. Atty., Richard A. Lavine, Burton C. Jacobson, Asst. U. S. Attys., Los Angeles, Cal., for ap-pellee. Before CHAMBERS and BARNES, Circuit Judges, and CHASE A. CLARK, District Judge. PER CURIAM. Hegerich is a national and citizen of Germany. He was properly admitted at New York City on February 18, 1956. His permit authorized him to stay until May 20, 1956. With his passport was a visa from the United States consul in Munich, Germany, reciting that he had until May, 1957, to apply for permanent admission to the United States. On May 23, 1956, he went for the second time to the immigration and naturalization office in Los Angeles to clear up his status, to seek extension of the time of his stay. The office’s reply to his request was to arrest him on the spot. Subsequently, administrative proceedings were held to determine his deportability and to consider his application for voluntary departure. The result was an order directing his deportation and denying his application for voluntary departure. The administrative proceedings were upheld on review by the district court. This appeal followed. As to deportability, the facts would seem to positively support the administrative conclusion. However, as tc the ruling on voluntary departure which would affect Hegerich’s right to apply for readmission, this court is of the opinion that there was an abuse of discretion. No suggestion is made that appellant is not a person of good moral character. His overstaying was de minimis in time. Blunderingly, he was trying to comply with the law. It is clear that his conduct was neither slick nor foxy. In this field of voluntary departure, ordinarily action unfavorable to the deportee must be upheld. But the government, as it should, seems to concede that there can be a case where the denial of voluntary departure can be an abuse of administrative discretion. This court holds that this is it. Reversed for proceedings which will permit appellant’s voluntary departure. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:

songer_state

56

What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". GREEN COUNTRY MOBILEPHONE, INC., and South Texas Mobilephone, Inc., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, LDS Cellular, Inc., Intervenor. No. 84-1226. United States Court of Appeals, District of Columbia Circuit. Argued March 7, 1985. Decided June 21, 1985. Jerrold Miller, Washington, D.C., for appellants. Mark E. Fields, Washington, D.C., entered an appearance for appellants. John P. Greenspan, Counsel, F.C.C., Washington, D.C., with whom Jack D. Smith, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel and Roberta L. Cook, Counsel, F.C.C., Washington, D.C., were on the brief, for appellee. John Q. Hearne, Washington, D.C., was on the brief for intervenor LDS Cellular, Inc. Before WRIGHT, MIKVA and STARR, Circuit Judges. Opinion for the Court filed by Circuit Judge MIKVA. MIKVA, Circuit Judge: Appellants challenge the Federal Communications Commission’s refusal to accept their applications to provide cellular radio service. The FCC returned the applications as unacceptable for filing because they arrived too late. Pursuant to its regulations, the FCC closed its doors on the day of the deadline at 5:30 p.m.; appellants’ applications apparently arrived sometime between 5:30 and 5:33. In the circumstances of this case, we find that the Commission abused its discretion by refusing to grant a waiver from the deadline. I. Cellular radio is a new technology for allowing people to carry on telephone conversations while riding in automobiles. In 1981, the FCC called for applications from companies interested in providing cellular radio service on a common carrier basis. See Cellular Communications Systems, Report and Order, 86 F.C.C.2d 469 (1981); Memorandum Opinion and Order on Reconsideration, 89 F.C.C.2d 58 (1981). For the thirty largest geographic markets, applications were to be filed by June 7, 1982; applications for the thirty next-largest markets were to be due on September 7, 1982. See 89 F.C.C.2d at 87-88. The latter deadline was later extended to November 8, 1982. See Memorandum Opinion and Order on Further Reconsideration, 90 F.C.C.2d 571, 580 (1982). Appellants Green Country Mobilephone and South Texas Mobilephone are commonly owned corporations that wished to provide cellular radio service respectively in Tulsa, Oklahoma, and San Antonio, Texas. Both of these communities are in the second group of thirty markets. Green Country and South Texas started work on their applications sometime in July 1982 and completed them on November 8. It is the events of that date that gave rise to this litigation. The applications were completed and signed in Washington at the offices of appellants’ counsel. They were then taken across the street to a commercial photocopy service. The San Antonio application was delivered to the service at about 2:45 in the afternoon; the Tulsa application arrived slightly earlier. Appellants and their counsel planned to collate the copies and to hand deliver them along with the originals to the FCC before the Commission’s scheduled closing time of 5:30. See 47 C.F.R. § 0.403 (“The main offices of the Commission are open from 8:00 a.m. to 5:30 p.m., Monday through Friday, excluding legal holidays.”). The Commission is located approximately two and a half blocks from the offices of appellants’ counsel. Unfortunately, an equipment malfunction delayed the duplicating process by about fifteen minutes, and the San Antonio application was not returned by the photocopy service until close to 5:00. Once collation was completed, an attorney left for the FCC with both applications. Appellants claim, and the government does not deny, that he arrived at the Commission no later than 5:33. The applications were to be filed at the office of the Secretary, located on the second floor of the FCC building. Although appellants contend that the public is generally allowed unrestricted access to the building’s elevators for a reasonable period beyond the official closing time, at or about 5:30 on November 8 the Secretary and the Managing Director of the Commission instructed a guard stationed in the lobby not to admit anyone else with applications. The precise time of this instruction is not completely clear; the Commission asserts that it closed its doors exactly at 5:30, but appellants suggest that the clock in the lobby may have been several minutes fast. In any event, it appears that at 5:30 a line of applicants remained outside the Secretary’s office on the second floor, and that the office stayed open until well after 5:30 in order to allow those in line to file their applications. Nonetheless, when the attorney carrying appellants’ applications arrived at the building, the guard denied him entry. The Green Country and South Texas applications were filed early the following morning, accompanied by a petition for acceptance nunc pro tunc. On January 24,1983, the Common Carrier Bureau ruled against accepting the tardy applications; the Commission affirmed that ruling in a memorandum opinion and order issued on May 15, 1984. II. The Commission’s reasoning, simply stated, is that rules are rules. Applicants [South Texas] and Green Country argue that their filings were at most a few minutes late. That may be, but “[t]here must be some point in time when the Commission can close the door to new parties____” The applicable rules and orders established 5:30 p.m., November 8, 1982 as the cut-off time, and all applicants were expected and required to abide by the ruling. “If we were to accept [applicants’] argument, we would have no basis for determining when a competing application has been filed 'too late.’ ” Acceptance of petitioners’ argument would foreclose the strict enforcement of our cut-off rules because that argument would be available in almost every instance where the Commission is presented with a late-filed application. This would mean that the Commission would consistently have to expend resources on case-by-case waiver requests and never be certain that the processing of a defined group of applicants could begin without disruption. Such potential disruption does not further the public interest. Green Country Mobilephone, Memorandum Opinion and Order at 7 (May 15, 1984). We cannot quarrel with the validity of the Commission’s concerns. We reverse the Commission not because the strict rule it applied is inherently invalid, but rather because the Commission has invoked the rule inconsistently. We find that the Commission has not treated similar cases similarly. Even appellants concede that the FCC has discretion to apply its 5:30 deadline strictly if it so decides. We will not second-guess a reasoned determination by an agency that the advantages of rigidity outweigh the disadvantages in a given procedural circumstance. See NLRB v. Washington Star Co., 732 F.2d 974, 977 (D.C. Cir.1984). On the other hand, once an agency agrees to allow exceptions to a rule, it must provide a rational explanation if it later refuses to allow exceptions in cases that appear similar. A “sometime-yes, sometimes-no, sometimes-maybe policy of [deadlines] cannot ... be squared with our obligation to preclude arbitrary and capricious management of [an agency’s] mandate.” Id. We agree with appellants that the FCC has failed to offer a reasonable distinction between this case and occasions in the past when waivers of filing deadlines have been granted. In particular, the Commission’s refusal in this case to accept applications tendered two or three minutes late appears inconsistent with its decision in Caldwell Television Associates, Ltd., 53 Rad.Reg.2d (P & F) 1686 (1983), to accept an application that arrived one day late. In Caldwell, an applicant for a new commercial television station delivered its application to an overnight courier service the day before the deadline. Next-day delivery to the Commission was prevented by dense fog that closed the airport at one of the courier’s intermediate stops; the application arrived at the Commission the morning following the due date. The FCC began its analysis in Caldwell, as it did in the case now before us, by reiterating its general policy regarding application deadlines: Our cut-off rules are to be strictly enforced with waivers granted only in unusual and compelling circumstances. A prerequisite to such a waiver is that an applicant demonstrate that it has exercised reasonable diligence. Any tardiness must be attributable to circumstances beyond the applicant’s control. Id. at 1687; Green Country Mobilephone, Memorandum Opinion and Order at 3-4. The Commission found this standard met by the applicant in Caldwell: In this case, we find that CTA did exercise reasonable diligence to assure timely delivery of its application. On the day before the cut-off date, CTA delivered its application to [the courier] in sufficient time for that company to deliver it to the Commission the next day under normal circumstances. While it may have been more prudent for CTA to have allowed extra time for unforeseeable delays in delivery, certainly severe weather conditions in another part of the country would not have been reasonably anticipated and constitute circumstances beyond the applicant’s control. Consequently, we believe that “unusual and compelling circumstances” have been demonstrated to warrant waiver of [the deadline]____ 53 Rad.Reg.2d (P & F) at 1687. The Commission’s order in this case attempted to distinguish Caldwell on the basis that “the last-minute failure of a copy machine,” in contrast to the delay of an airplane by adverse weather, “can be reasonably anticipated, and contingency plans or actions can be put into effect to assure timely submission of applications.” Id. at 4. We can find no principled distinction between the two causes of delay. Photocopy machines may or may not be as fickle as the weather, but even attorneys and business people are presumably as familiar with bad weather as they are with duplication difficulties. We cannot approve an “airplane” rule or a “weather” rule as an example of consistent, reasoned decision-making. If an overnight delay is excusable because an airplane was unexpectedly caught in fog, we can see no reason why a three-minute delay should not be excusable because a duplicating machine unexpectedly broke down. This is especially so given the appellants’ uncontested assertion that in the past the FCC has routinely accepted applications filed shortly after 5:30 p.m. In general, an agency’s refusal to grant a waiver will not be overturned unless the agency’s reasons are “so insubstantial as to render that denial an abuse of discretion.” E.g., Thomas Radio Co. v. FCC, 716 F.2d 921, 924 (D.C.Cir.1983). Although this burden is a heavy one, see WAIT Radio v. FCC, 459 F.2d 1203, 1207 (D.C.Cir.), cert. denied, 409 U.S. 1027, 93 S.Ct. 461, 34 L.Ed.2d 321 (1972), we made clear in Washington Star that it is carried when an agency arbitrarily waives a deadline in one case but not in another. That is the situation here. Accordingly, we vacate the Commission’s decision and remand this case for further proceedings consistent with our opinion. IH. We are aware that our action today may delay somewhat the availability of cellular radio service in Tulsa and San Antonio by disrupting settlements negotiated among the applicants in each of the two markets. Since appellants were not included in the settlements, some renegotiation or administrative resolution will be necessary. It is obvious that appellants’ rights cannot be compromised simply because other applicants decided to conduct negotiations on the assumption that appellants would not prevail. Again, we emphasize that the PCC is not required to bend its deadlines at all. If the Commission so chooses, it may prospectively overrule Caldwell. So long as Caldwell remains law, however, it may not be arbitrarily ignored or limited. If there are to be exceptions, they must be administered in a rational manner. Reversed and remanded. 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_initiate

B

What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. Barbara Jean BERRY et al., Plaintiffs-Appellees-Cross-Appellants, v. SCHOOL DISTRICT OF the CITY OF BENTON HARBOR, MICHIGAN, et. al., Defendants-Appellants-Cross-Appellees. Nos. 71-1957 and 71-1958. United States Court of Appeals, Sixth Circuit. Nov. 1, 1974. Robert P. Small, Small, Shaffer & Small, Benton Harbor, Mich., for defendant-appellant-cross-appellee. Stuart J. Dunnings, Jr., Dunnings & Gibson, Lansing, Mich., Louis R. Lucas, Ratner, Sugarmon & Lucas, Memphis, Tenn., Nathaniel R. Jones, New York City, for plaintiffs-appellees-cross-appel-lants. Before PHILLIPS, Chief Judge and EDWARDS and PECK, Circuit Judges. PECK, Circuit Judge. Plaintiffs instituted this desegregation action against the School District of the City of Benton Harbor, Michigan, members of the local school board and the district’s chief administrative officer in 1967, alleging unconstitutional segregation and inferior educational opportunities for black students. The case was tried before the late Judge W. Wallace Kent, Western District, Michigan, in February 1970. In the findings of fact and conclusions of law announced in July 1971 the court found that although a racial imbalance existed in the school district, defendants had not created it and had no affirmative legal duty to adopt a system wide remedial plan. The court, however, did find defendants guilty of discrimination in three areas: (1) assignment of teaching positions; (2) use of different systems to establish learning groups at three junior high schools; and (3) budgeting for operational expenses on a per-pupil basis. The court ordered defendants to discontinue discriminatory practices in the above areas. Defendants perfected this appeal from the above findings and from the orders to desist, and plaintiffs perfected a cross-appeal claiming that the court erred in not finding de jure segregation and in not providing adequate remedies for the discrimination it found. Defendant school district was formed in 1965 by a process of consolidation, annexation and attachment of separate school districts in and around Benton Harbor. It encompasses an area of 57 square miles, and in 1969 it enrolled approximately 12,000 students in 28 regular schools. The professional staff consisted of 470 teachers and 50 administrators. At the time of consolidation the school board adopted the existing attendance area boundary lines of the predecessor districts, the result of which was that by 1970, seven of the 28 schools were more than 80% black and 14 more than 80% white. Only 7 of 28 schools could be termed mixed. The overall student population was approximately 49% black and 51% white. Both before and after consolidation, however, all area students attended Bénton Harbor High School, which during the 1969-1970 school year was 40% black and 60% white. The district court attributed pupil population in the schools in the consolidated district to “the racial complexion of the area served by the individual schools.” It also pointed out that the number and density of the black population had increased between 1965 and 1970, and that with few exceptions the predominately black neighborhoods contained less than adequate housing. Although defendants were not held responsible for the segregated housing patterns, the court stated that the “containment of blacks [caused] the percentage of students attending schools with a student body of fifty percent or more of the same race [to increase].” The defendants made no effort to alter attendance boundaries to achieve a better racial balance. In 1970 there were approximately 470 teachers in the district, 83 (17.7%) of whom were black. Black teachers were actively recruited by the school district and the years 1965 through 1970 saw a steady improvement in the percentage of black teachers employed. But the district court found that the method used to assign the teachers was racially motivated and that a disproportionate number of black and generally inexperienced teachers were assigned to predominantly black schools resulting in a denial of equal educational opportunity to black students. Nearly 70% of the black elementary and junior high teachers were assigned to predominantly black schools, while 15 schools had 100% white faculties. The district court ordered defendants to desist from assigning teachers on the basis of race. The court also found that the physical conditions in a number of the schools turned over to the consolidated district in 1965 were grossly inadequate and that all of the buildings operated by the district were generally crowded. It further noted that the median age for predominantly black schools was 43 years, while the median age for predominantly white schools was 17 years. In spite of a well recognized need for improved facilities, no new construction or substantial remodeling was undertaken in the elementary or junior high schools after consolidation due to lack of funds. The court ascribed the differences among the various schools to different types of land and economic development and wide variances in assessed valuation for taxes in the predecessor districts. Defendants operated three separate schools for junior high level students; Fairplain Junior High School (predominantly white), Hull School (mixed), and Benton Harbor Junior High School (predominantly black). Two different methods were used to establish learning groups in the three units and this led the district court to the following conclusion : “The tracking system as used at Benton Harbor Junior High School as differentiated from that used at Fair-plain Junior High School and Hull Junior High School, results in a denial of equal opportunity to the students at Benton Harbor Junior High School to achieve the same level of education in junior high school and high school as is afforded to the students at Fair-plain Junior High School and at Hull Junior High School. This system is improper and denies equal opportunity to the children who are attending Benton Harbor Junior High School.” The court ordered the tracking system used at Benton Harbor Junior High School discontinued. The district court received extensive evidence regarding the district’s budgeting procedures. It found that the budgeting of funds for operational expenses was done on a per-pupil basis and that as a result predominantly white schools which were generally in good condition were able to maintain that status while the older and more dilapidated facilities in predominantly black schools were not upgraded due to lack of funds. Defendants were ordered to revise this budgeting procedure. A thorough review of the record convinces us that the district court’s findings that defendants were guilty of discrimination in the assignment of teachers and in the use of two different methods of establishing learning groups in the junior high schools were supported by the evidence. However, it is clear that the district court erred in finding discrimination in the budgeting procedures. The district court made the following finding of fact: “[T]he budgeting of funds is done by the Defendant on a per-student basis, as a result of which many of the schools with majority white students which came into the consolidated district with good facilities are in a position to maintain good facilities, and those schools which came into the consolidated district without good facilities do not have sufficient funds to improve the situation. The budgeting provides for $10.00 per child for operational expense.” The Superintendent explained that the per-student allocation was used only for “instructional supplies, library and office supplies.” Teachers’ salaries, maintenance and repairs, and capital expenditures all came from different and separate funds. The conclusion reached by the district court was apparently based upon the erroneous assumption that the allocation of $10.00 per-pupil per year for operational expenses was spent to maintain the school buildings, or could have been spent to upgrade some of the older facilities. The only evidence of record, however, was that new construction, renovation, and regular .maintenance had nothing to do with the operating budget. Thus we must conclude that the district court was clearly erroneous in finding defendants guilty of discrimination in this regard. It is clear from a recital of the facts of record in this case that a number of important indicia of de jure segregation were present even though a dual school system was neither compelled nor authorized by law. The school system was in fact racially imbalanced, teachers were assigned on the basis of race, the physical condition of the predominantly black schools was generally inferior to the conditions in the predominantly white schools, and the method of assigning students to learning groups in the black junior high school deprived black students of an equal opportunity for an education. The Supreme Court has stated that discrimination in these areas of education constitutes a prima facie case of the existence of a dual school system. Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 201, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 18, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). We are satisfied that a prima facie case was made out in this instance. We recognize the difficulty in determining the quantum of state participation which is a prerequisite to a finding of a constitutional violation. “[T]he necessary degree of state involvement is incapable of precise definition and must be defined on a case-by-case basis.” United States v. Texas Education Agency, 467 F.2d 848, 864 (5th Cir. 1972), cited with approval in Keyes v. School District No. 1, Denver, Colorado, supra, 413 U.S. at 215, 93 S.Ct. 2686 (Douglas, J., concurring). The district courts are not without guidance in this difficult .task, however, as there have been a number of appellate decisions addressed to this problem. Although the relevant standards have not changed since Judge Kent rendered his decision in 1971, the Supreme Court has attempted to clarify the law in this area. For this reason, the issues presented by this case are particularly well suited to fresh consideration by the district court in light of recent case law. The question on remand will be whether defendants can successfully negate the prima facie case of de jure segregation that has been made against them. Plaintiffs ask that we hold defendants’ 1965 adoption of the previously existing school attendance boundaries an independent act of deliberate segregation sufficient in itself to warrant an order for “all-out” desegregation. We decline to do so. The instant suit was commenced after consolidation and no court action was pending against the school district prior to that time. There had been no judicial finding that defendants were operating a dual school system and the defendants had made no determination that action ought to be taken. Further, the attendance lines had existed in substantially the same form for a number of years prior to consolidation and before any complaint of segregation. In light of the above, we cannot say as a matter of law that defendants were under a duty to alter the attendance lines in 1965. Defendants’ decision, however, not to adopt new attendance boundaries in the face of a readily discernable pattern of residential segregation may be considered part of the cumulative evidence of a possible constitutional violation. We note in passing that the district court stated that except for the specific areas in which it found discrimination “there [was] no' evidence that race [had] been the sole consideration in any act, decision, assignment, choice or program of Defendant District or its Board.” (Emphasis supplied.) It is not necessary to prove discriminatory motive, purpose, or intent ás a prerequisite to establishing an equal protection violation when discriminatory effect has been demonstrated. The “sole criterion” test has been rejected by the Supreme Court. Wright v. Council of City of Emporia, 407 U.S. 451, 461-462, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1971); see United States v. Texas Education Agency, supra; Mahaley v. Cuyahoga Metropolitan Housing Authority, 355 F.Supp. 1245 (N.D.Ohio 1973). The question to be considered by the district court is whether defendants’ official acts resulted in a constitutionally impermissible dual school system. For the reasons set forth hereinabove, the findings of the district court are affirmed in part and reversed in part and the orders entered pursuant thereto are vacated, and the cause is remanded to the district court for further proceedings consistent with this opinion. . The latest statistics of record are for the 1969-1970 school year. . The predominantly black schools operated at 103.6% capacity; the predominantly white schools operated at 96% capacity. . All building programs proposed by the school board were defeated by district voters, . The six criteria most often listed as indicia are composition of the student bodies, faculty, staff, transportation, extra-curricular activities, and facilities. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:

songer_district

B

What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Gene ALBRIGHT and Bettie J. Page, Plaintiffs-Appellees, v. The GOOD SHEPHERD HOSPITAL, dba Good Shepherd Medical Center and The Board of Trustees of the Good Shepherd Hospital, Defendants-Appellants. No. 89-2279 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 16, 1990. John M. Smith, Harbour, Smith, Harris & Cammack, Longview, Tex., Erin E. Lunee-ford, Wood, Luckinger & Epstein, Houston, Tex., Hugh M. Smith, Glen Rose, Tex., for defendants-appellants. Larry R. Daves, San Antonio, Tex., for plaintiffs-appellees. Before REAVLEY, KING and JOHNSON, Circuit Judges. PER CURIAM: Defendants The Good Shepherd Hospital and its Board of Trustees (collectively “Good Shepherd”) appeal a judgment awarding attorney’s fees and expenses to plaintiffs Gene Albright and Bettie J. Page under 42 U.S.C. § 1988. We vacate the award and remand. I. Albright initiated this case by suing Good Shepherd under 42 U.S.C. § 1983 for damages resulting from his termination as Personnel Director of Good Shepherd and his subsequent arrest by the Longview Police Department for distributing leaflets on hospital property. His claims were consolidated with those of Page, who sought damages under state law, Title VII, and 42 U.S.C. § 1981 for her alleged wrongful termination from Good Shepherd. A jury returned a verdict and an award of damages for each plaintiff. Additionally, the district court found that Good Shepherd had discriminated against Page on the basis of race, in violation of section 1981 and Title VII, and awarded back pay, reinstatement, and accommodations at work for a shoulder injury. Albright v. Longview Police Dep't, 884 F.2d 835, 837-38 (5th Cir.1989). The district court subsequently awarded Page and Albright, who were represented by the same attorney, $74,012.95 in attorney’s fees and $2,342.01 in expenses, as prevailing parties under 42 U.S.C. § 1988. The award did not delineate which portion was attributable to each plaintiff’s case. On appeal of the merits, a Fifth Circuit panel reversed the judgment for Albright’s section 1983 claim and remanded for consideration of Albright’s false arrest claim under state tort law. Id. at 841-43. However, the panel affirmed the judgment for Page on her state and federal claims. Id. at 844. Good Shepherd now appeals the award of attorney’s fees and costs, pointing out that to recover attorney’s fees under section 1988 one must prevail under an applicable federal statute. Since Albright’s section 1983 claim was reversed, Good Shepherd contends that he is no longer entitled to attorney’s fees and that the award must be vacated and remanded for apportionment. We agree. II. The Civil Rights Attorney’s Fee Statute provides in relevant part: In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. 42 U.S.C. § 1988. To obtain attorney’s fees under this statute, a litigant must be a “prevailing party.” Davis v. West Community Hosp., 755 F.2d 455, 468 (5th Cir.1985). Although qualification is not contingent upon prevailing on all claims, see Hensley v. Eckerhart, 461 U.S. 424, 434-35, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983), a litigant must “receive at least some relief on the merits of his claim before he can be said to prevail,” Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 2675, 96 L.Ed.2d 654 (1987). Albright clearly does not meet this requirement. Judgment on his federal claim has been reversed and therefore cannot support the award. See Harris v. Pirch, 677 F.2d 681, 689 (8th Cir.1982). His only possible basis for recovery is state tort law, which cannot provide grounds for a section 1988 attorney’s fee award when all federal claims have been rejected on the merits. McDonald v. Doe, 748 F.2d 1055, 1057 (5th Cir.1984); cf. Heath v. Brown, 807 F.2d 1229, 1233 (5th Cir.1987) (pendent state law claims can support the recovery of attorney’s fees under section 1988 when the court has avoided a substantial constitutional claim in the ease). Accordingly, the attorney’s fee award must be adjusted to reflect the fact that Page was the sole plaintiff to prevail under federal law. Plaintiffs seek to avoid apportionment by pointing out that the Supreme Court does not require a fee reduction merely because all claims are not successful. See Hensley, 461 U.S. at 435, 103 S.Ct. at 1940. They then claim that the entire award should be affirmed on the ground that their claims “involve[d] a common core of facts.” Id. Plaintiffs seek to establish factual commonality by pointing to (1) the joinder of the two cases; and (2) Albright’s assertion that he was fired for assisting a group of nursing supervisors, including Page, in filing grievances against Good Shepherd regarding racial discrimination. At the outset, we point out that fee entitlement for unsuccessful claims does not rest solely upon a commonality of facts or legal theories. Rather, the relevant inquiry is the success achieved in a lawsuit and the reasonableness of time expended in relation to that success. Plaintiffs obtaining excellent results are entitled to recover full compensation, even if they do not prevail on every contention. Id. However, those achieving limited or partial success may recover only that which is reasonable in light of the relief obtained. Id. at 436, 103 S.Ct. at 1941. In a case involving limited success, such as this, joinder alone cannot support full recovery of attorney’s fees. Additionally, while Albright’s assistance regarding grievance filings may indicate some overlap between the cases, it cannot justify recovery of all fees incurred in pursuit of his claims. Evidence of Albright’s grievance activity may well have added fuel to Page’s section 1983 and racial discrimination claims. However, that was not the sum total of Albright’s case; his claim regarding the arrest represented a substantial portion. The arrest claim was unrelated to those of Page and did not aid her victory. Counsel is therefore not entitled to recover for services on that claim. Id. at 435, 103 S.Ct. at 1940. The difficulty here is determining which costs may be charged fairly to counsel’s pursuit of the Page case. In the hearing on attorney’s fees, plaintiffs’ counsel stated that the proof, discovery, and research regarding Page’s and Albright’s claims overlapped to the point of being unseverable. However, to serve the overriding goal of compensating counsel in light of the “results obtained,” the fees must be apportioned. Id. at 434-36, 103 S.Ct. at 1939-41. The manner of determining the award and its ultimate amount are committed to the discretion of the district court. See id. at 436-37, 103 S.Ct. at 1941; Gilbert v. City of Little Rock, Ark., 867 F.2d 1063, 1066-67 (8th Cir.) (sustaining fifteen percent reduction for fee award due to the fact that only four of thirteen original plaintiffs obtained relief), cert. denied, — U.S. -, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989). We therefore VACATE the award and REMAND for proceedings not inconsistent with this opinion. . The record indicates that the court upheld Page's section 1983 claim. However, it is unclear whether she recovered any damages on this claim. . Although Hensley was decided with regard to a single plaintiff, we see no reason for adopting a different rule in cases involving more than one plaintiff. Question: 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_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. REGULAR COMMON CARRIER CONFERENCE, et al., Petitioners, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Burlington Northern, Inc., et al., Transportation Lawyers Association, Intervenors. (Two Cases) INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS of AMERICA, et al., Petitioners, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Burlington Northern, Inc., et al., Transportation Lawyers Association, Intervenors. Nos. 85-1601, 86-1222 and 86-1435. United States Court of Appeals, District of Columbia Circuit. Argued March 27, 1987. Decided June 23, 1987. Laura Layman and Kevin M. Williams, Washington, D.C., with whom Robert J. Higgins and Joan M. Darby were on the brief, for petitioners. Timm L. Abendroth, Attorney, I.C.C., Washington, D.C., with whom Robert S. Burk, General Counsel, John J. McCarthy, Jr., Deputy Associate General Counsel, I.C.C., John J. Powers, III and John P. Fonte, Attorneys, Dept, of Justice were on the brief, for respondents, I.C.C. and U.S. Herbert J. Martin, Washington, D.C., for intervenor, Burlington Northern, Inc., et al. James F. Flint and Robert Walker, Washington, D.C., entered appearances for intervenor, Transportation Lawyers Ass’n. Before EDWARDS and STARR, Circuit Judges, and SWYGERT, Senior Circuit Judge of the United States Court of Appeals for the Seventh Circuit. Sitting by designation pursuant to 28 U.S.C. § 294(d) (1982). Opinion for the Court filed by Circuit Judge EDWARDS. HARRY T. EDWARDS, Circuit Judge: We are asked to review three decisions of the Interstate Commerce Commission (“ICC” or the “Commission”) exempting from statutory prior approval requirements a series of intermodal acquisitions involving rail and motor carriers. Because we conclude that the Commission applied the wrong statutory criteria in granting the exemption requests, we reverse and remand the Commission’s decisions. I. Background These consolidated cases involve the acquisition of several trucking companies by Burlington Northern, Inc., a holding company that owns the Burlington Northern Railroad Company, a Class I railroad. In four separate petitions filed with the ICC during 1985 and 1986, both Burlington Northern, Inc. and its wholly-owned subsidiary Burlington Northern Motor Carriers. Inc. (hereinafter referred to collectively as “Burlington Northern”) sought statutory exemptions in connection with their proposed acquisitions of six trucking companies. Absent exemptions, the acquisitions would have required prior ICC approval under 49 U.S.C. § 11343 et seq. (1982 & Supp. III 1985). In seeking to avoid the requirement of prior approval from the ICC, Burlington Northern petitioned for exemptions under 49 U.S.C. § 11343(e) (1982), which provides in relevant part: (e)(1) Notwithstanding any provisions of this title, the Interstate Commerce Commission, in a matter related to a motor carrier of property providing transportation subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title, may exempt a person, class of persons, transaction, or class of transactions from the merger, consolidation, and acquisition of control provisions of this subchapter if the Commission finds that— (A) the application of such provisions is not necessary to carry out the transportation policy of section 10101 of this title; and (B) either (i) the transaction is of limited scope, or (ii) the application of such provisions is not needed to protect shippers from the abuse of market power. Id. § 11343(e)(1). Section 10101, referenced in section 11343(e)(1), lists the overall goals of ICC transportation policy. Id. § 10101. Burlington Northern’s petitions for section 11343(e) exemptions were opposed by the Regular Common Carrier Conference (“RCCC”), the Transportation Lawyers Association (“TLA”), the International Brotherhood of Teamsters, Chauffeurs, Ware-housemen and Helpers of America (“IBT”) and the American Trucking Association, Inc. Among their objections, the opposing parties claimed that the ICC may not act under section 11343(e) to exempt rail-motor acquisitions of the sort proposed by Burlington Northern, but must instead evaluate such acquisitions according to the requirements set forth in 49 U.S.C. § 10505 (1982): (a) In a matter related to a rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under this subchapter, the Commission shall exempt a person, class of persons, or a transaction or service when the Commission finds that the application of a provision of this subtitle— (1) is not necessary to carry out the transportation policy of section 10101a of this title; and (2) either (A) the transaction or service is of limited scope, or (B) the application of a provision of this subtitle is not needed to protect shippers from the abuse of market power. (g) The Commission may not exercise its authority under this section (1) to authorize intermodal ownership that is otherwise prohibited by this title, or (2) to relieve a carrier of its obligation to protect the interests of employees as required by this subtitle. Id. § 10505(a), (g). Section 10101a, referenced in section 10505(a)(1), lists the specific goals of ICC rail transportation policy. Id. § 10101a. In proceedings before the Commission, the opposing parties contended that the reference to “intermodal ownership” in section 10505(g)(1) included ownership of motor carriers by railroads, and thus included Burlington Northern’s proposed acquisitions. Such ownership, they argued, is “otherwise prohibited” within the meaning of section 10505(g)(1) unless it satisfies the specific requirements of 49 U.S.C. § 11344(c) (1982), which states in relevant part: When a rail carrier, or a person controlled by or affiliated with a rail carrier, is an applicant and the transaction involves a motor carrier, the Commission may approve and authorize the transaction only if it finds that the transaction is consistent with the public interest, will enable the rail carrier to use motor carrier transportation to public advantage in its operations, and will not unreasonably restrain competition. In other words, the opposing parties argued that, because section 10505(g)(1) prohibits the ICC from exempting a rail-motor acquisition that does not satisfy the requirements of section 11344(c), the ICC was statutorily obligated to apply the standards of section 11344(c) (and not the less stringent standards of section 11343(e)) in considering Burlington Northern’s petitions. In a series of three decisions, the ICC purported to invoke the provisions of section 11343(e) and granted all four of Burlington Northern’s exemption petitions. In so doing, the ICC rejected the opposing parties’ arguments regarding the overriding applicability of section 11344(c). See Burlington Northern, Inc. — Control Exemption — Victory Freightway Sys., ICC Docket No. MC-F-16248 (decided July 11, 1985; served July 26, 1985) (“July 1985 Decision”), reprinted in Joint Record Appendix (“J.R.A.”) 1; Burlington Northern, Inc. — Control Exemption — Victory Freightway Sys., ICC Docket No. MC-F-16248, Burlington Northern, Inc. — Control Exemption — Monkem Co., ICC Docket No. MC-F-16372, and Burlington Northern, Inc. — Control Excemption— Monroe Trucking, ICC Docket No. MC-F-16452 (decided Jan. 29, 1986; served Feb. 13, 1986) (“January 1986 Decision”), reprinted in J.R.A. 9; Burlington Northern, Inc. and Burlington Northern Motor Carriers, Inc. — Control Exemption— Stoops Express, Inc., Wingate Trucking Co., and Taylor-Maid Transp., ICC Docket No. MC-F-17030 (decided July 18, 1986; served July 28, 1986) (“July 1986 Decision”), reprinted in J.R.A. 22. In the July 1985 Decision, the ICC rejected by a 4-3 vote the argument that the “intermodal ownership” limitation of section 10505(g)(1) compelled the Commission to apply section 11344(c) to the transactions at issue. The majority added that even if section 10505(g)(1) — and thus section 11344(c) — were applicable, Burlington Northern’s proposed acquisition would satisfy the requirements of section 11344(c). However, the majority offered only a cursory explanation of the basis for this alternative holding. July 1985 Decision at 5, reprinted in J.R.A. 5. In the January 1986 Decision, a bare majority of the Commission again rejected the statutory construction offered by the parties opposing Burlington Northern’s petition, declaring that “[t]he factors enumerated in section 11344(c) are subsumed within the broader competitive analysis we conduct in rail-motor acquisitions” under section 11343(e). January 1986 Decision at 7-8, reprinted in J.R.A. 15-16. In addition, however, the majority very briefly considered each of the section 11344(c) factors and concluded that they were satisfied. Id. at 10-11, reprinted in J.R.A. 18-19. In the July 1986 Decision, the same majority approved Burlington Northern’s remaining petitions, adhering to its previous position on the applicability of section 11343(e). This time, however, the majority retreated from the position it had taken in January of 1986 — that the factors enumerated in section 11344(c) were “subsumed” within the criteria of section 11343(e). Instead, the majority stated: “[W]e no longer believe the criteria under that section [11344(c) ] are relevant in evaluating whether transactions such as those involved here meet the exemption criteria under section 11343(e).” July 1986 Decision at 5 n. 3, reprinted in J.R.A. 26 (emphasis in original). The majority concluded that because “the primary impact of the proposed rail-motor transaction can be expected to be on the motor carrier industry rather than on the rail industry,” the Commission should apply section 11343(e) rather than section 10505. Id. at 5, reprinted in J.R.A. 26. Besides making it unnecessary for the ICC to address the specific criteria of section 11344(c), the granting of Burlington Northern’s exemption requests under section 11343(e) had two additional consequences. First, it indisputably conferred on the transactions immunity from antitrust laws. 49 U.S.C. § 11341(a) (1982). Second, it left to the ICC’s discretion the decision whether to impose labor protective conditions on any of the parties to the transaction. Id. § 11343(e)(4). In contrast, in acquisitions to which sections 10505(g)(1) and 11344(c) apply, labor protection for rail employees is mandatory, id. §§ 10505(g)(2), 11347 (1982 & Supp. Ill 1985), and the ICC has taken the position that antitrust immunity is unavailable. January 1986 Decision at 6, reprinted in J.R.A. 14. Because of these different substantive consequences, the ICC’s alternative holdings in the July 1985 and January 1986 decisions, although arguably predicated on section 11344(c) findings, did not transform the section 11343(e) exemptions into the equivalent of section 10505 exemptions. II. Analysis Two of the groups that opposed Burlington Northern’s petitions below — the RCCC and the IBT (joined by the TLA as an intervening petitioner) — have petitioned this court to review each of the ICC’s decisions, contending that the Commission has no authority to exempt rail-motor acquisitions under section 11343(e). The ICC and the carriers intervening on its behalf contend that the ICC may exempt a rail carrier’s acquisition of a trucking company under either section 10505 or section 11343(e). As explained below, however, a straightforward analysis of the relevant statutes leads us to conclude that the ICC’s position is untenable. A. The Meaning of Section 10505(g) We begin with the language of section 10505(g). The term “intermodal ownership” in subsection (g)(1) is clearly broad enough to include rail-motor acquisitions within its literal scope, and nothing in section 10505 or elsewhere in the statute suggests that the term should be given a narrowing construction. The Commission contends that “intermodal” includes rail-water acquisitions and “perhaps” freight forwarder acquisitions of other carriers, but that it does not include rail-motor acquisitions. Joint Brief for ICC and United States at 32 n. 20. However, this construction is flatly belied by the plain words of the statute itself, and there is nothing in the legislative history of section 10505(g) to suggest that Congress intended something narrower than the literal meaning of the term “intermodal.” Therefore, we cannot accept the ICC’s strained interpretation of section 10505(g). Indeed, at oral argument, counsel for the Commission conceded that, in the absence of section 11343(e), section 10505(g)(1) would undoubtedly apply to the rail-motor acquisitions in question. Such acquisitions are “otherwise prohibited” for purposes of section 10505(g) unless they satisfy the section 11344(c) criteria. Consequently, ICC counsel conceded that, absent section 11343(e), the Commission would be compelled to evaluate the acquisitions under the criteria of section 11344(c). All parties agree that the criteria under section 11344(c) are more stringent than those of section 11343(e). And, as we have already observed, the application of sections 10505(g)(1) and 11344(c) instead of section 11343(e) would also have significant consequences with respect to labor protection and, according to the ICC, to antitrust immunity as well. B. The Relationship Among Sections 11343(e), 10505(g)(1) and 11344(c) In light of the foregoing, it appears that the principal question before this court is whether, by enacting section 11343(e), Congress intended to repeal or modify all or part of sections 10505(g)(1) and 11344(c). We think it is absolutely clear that Congress did not. In reaching this conclusion, we find a number of factors that weigh against inferring such an intent. 1. The Plain Meaning of the Statute Beginning, as we must, with the plain language of the statute, we note that nothing in the literal terms of section 11343(e) indicates that it was intended to override section 10505(g)(1) or section 11344(c). Indeed, while section 11343(e)(1) applies generally to a “matter related to a motor carrier of property,” section 10505(g)(1) applies specifically to “intermodal ownership,” and section 11344(c) applies specifically “[w]hen a rail carrier, or a person controlled by or affiliated with a rail carrier, is an applicant and the transaction involves a motor carrier.” Whereas the phrase “matter related to a motor carrier of property” in section 11343(e) is ambiguous as to whether it includes only matters in which all participants are motor carriers, or all matters that involve at least one motor carrier, the far more precise language in sections 10505(g)(1) and 11344(c) expressly encompasses rail-motor transactions. It is difficult to imagine that Congress would silently withdraw an entire class of transactions from the scope of sections 10505(g)(1) and 11344(c) by enacting a new statutory provision that does not even clearly include that class of transactions. Thus, the literal terms of sections 10505(g)(1) and 11344(c) apply to rail-motor transactions, and nothing in the literal terms of section 11343(e) indicates congressional intent to modify or partially repeal sections 10505(g)(1) and 11344(c) or to offer the ICC an alternative to proceeding under those statutes. Nor do we find in the legislative history of section 11343(e) the “clearly expressed legislative intention to the contrary” which would be needed to call into question the clear import of the statute’s language and structure. Burlington Northern R.R. v. Oklahoma Tax Comm’n, — U.S. -, 107 S.Ct. 1855, 1860, 95 L.Ed.2d 404 (1987). On the contrary, while our holding is based on the literal language of the statutory provisions at issue, a brief survey of the relevant parts of the legislative history will serve to confirm our conclusion that the ICC’s interpretation of section 11343(e) is erroneous. 2. The Legislative History of Section 11343(e) The motor carrier exemption embodied in section 11343(e) was originally proposed by former ICC Chairman Reese Taylor in Senate hearings on the Bus Regulatory Reform Act of 1982, Pub.L. No. 97-261, 96 Stat. 1102. At the hearings, Taylor stated on behalf of the Commission: We believe that it would be preferable to exempt bus companies and motor carriers generally from Commission jurisdiction with regard to mergers, consolidations and acquisitions of control. This change is suggested because we believe that other governmental bodies have sufficient jurisdiction to protect the public interest. In view of liberalized entry, the number of merger proposals has substantially declined and continued regulation by the Commission of control and acquisition transactions no longer appears necessary. Alternatively, Congress might wish to consider adoption of an exemption along the lines of the Staggers [Rail] Act [of 1980, Pub.L. No. 96-448, 94 Stat. 1895], which could be used to exempt those types of transactions]. Deregulation of the Intercity Bus Industry: Hearings on H.R. 3663 Before the Subcommittee on Surface Transportation of the Senate Committee on Commerce, Science and Transportation, 97th Cong., 2d Sess. 88 (1982) (emphasis added). The Senate adopted Taylor’s second alternative, but narrowed it to exempt only “motor carriers of property,” thus excluding buses from the exemption. See S.Rep. No. 411, 97th Cong., 2d Sess. 31, reprinted in 1982 U.S.Code Cong. & Admin.News 2308, 2338. The Senate Report explained that the proposed exemption would “allow[] the ICC the discretion to exempt small truck company mergers and other transactions from certain statutory requirements.” Id. at 13, reprinted in 1982 U.S.Code Cong. & Admin. News at 2320. Given that Chairman Taylor’s proposal addressed motor carriers only, and given also that the Senate then narrowed his proposal still further to include only a particular type of motor carrier, it strains credulity to suggest, as the intervening respondents do, that the Senate Report's oblique reference to “small truck mergers and other transactionst” reflects an otherwise unarticulated intent to open up this same exemption provision to encompass transactions involving an entire class of carriers other than motor carriers. Surely such a broad proposal would have evoked at least some commentary; yet the legislative history reveals none. The intervening respondents’ suggestion proves even more doubtful when contrasted with the Senate’s statement that the proposed exemption would “not in any way affect the ICC’s jurisdiction with regard to rail transactions under Subchapter III [of Chapter 113] of Title 49 U.S.C.” Id. at 31, reprinted in 1982 U.S.Code Cong., & Admin.News at 2338. Thus, nothing in the Senate history of section 11343(e) suggests that the “motor carrier of property” exemption was intended to override the preexisting statutory provisions that were, and are, expressly applicable to rail-motor ownership. It is difficult to believe that a Senate intending to amend a prior enactment would not only employ statutory terms more ambiguous than the terms of the enactment it intended to amend, but would also fail to clarify its amendatory intent anywhere in the legislative history. When the House took up the Senate’s proposed exemption, the ICC once again took a position in favor of either eliminating Commission jurisdiction over motor carrier acquisitions or allowing the ICC to exempt such transactions under certain circumstances. In a letter addressed to the Chairman of the House Committee on Public Works and Transportation, Chairman Taylor reiterated that the ICC “recommended elimination of ICC jurisdiction over motor carrier mergers, consolidations and acquisitions of control,” or, “[alternatively, ... adoption of an exemption provision.” Letter from Reese H. Taylor, Jr., Chairman, Interstate Commerce Commission, to Hon. James J. Howard, Chairman, House Committee on Public Works and Transportation (June 8, 1982), reprinted in Brief of Petitioners, Addendum B. As in his previous Senate testimony, Chairman Taylor’s juxtaposition of the proposal to eliminate jurisdiction over acquisitions among motor carriers with the alternative proposal to create “an exemption” strongly suggests that the “exemption” proposed in his letter was similarly circumscribed. Nowhere in this letter did the Chairman suggest exempting rail-motor (or other intermodal) acquisitions. The House Conference Report proposed retaining the Senate’s exemption and repeated the Senate Report’s statement that this exemption would not affect the ICC’s rail jurisdiction. H.R. Conf.Rep. No. 780, 97th Cong., 2d Sess. 56, reprinted in 1982 U.S. Code Cong. & Admin.News 2342, 2367. Shortly before the compromise bill was passed by both houses, Congressman Anderson, who was the House sponsor of the bill and a member the Conference Committee, made the following statement on the floor of the House: For motor carriers of property, the conference agreement treats truck mergers differently than mergers of buses. Specifically, the agreement would retain existing law for truck mergers, except that the Commission could exempt a person, class of persons, transaction, or class of transactions for motor carriers of property from the provisions of the law if the Commission finds that the application of these provisions is not necessary or [the transaction is] of limited scope. 128 Cong.Rec. H6692 (daily ed. Aug. 19, 1982) (statement of Rep. Anderson) (emphasis added). Consistent with both the recommendations of Chairman Taylor and the relevant passages in the Senate and Conference Reports, Congressman Anderson’s statement strongly suggests that the exemption was to apply only to transactions among motor carriers. In short, the legislative history of section 11343(e) offers no support for the ICC’s interpretation. We find no evidence from which to conclude that the phrase “matter related to a motor carrier” as used in that section was intended to encompass rail-motor acquisitions, and we find rather strong suggestions to the contrary. Indeed, to construe that phrase as the ICC suggests without any clear basis in the language of section 11343(e) would be to work a partial repeal by implication of sections 10505(g)(1) and 11344(c). To draw such an inference without any clear evidence of congressional intent would violate the settled rule that repeals by implication are disfavored: Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment. The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. “When there are two acts upon the same subject, the rule is to give effect to both if possible____ The intention of the legislature to repeal ‘must be clear and manifest.’ ” Morton v. Mancari, 417 U.S. 535, 550-51, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974) (citations omitted) (quoting United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. at 182, 188, 84 L.Ed. 181 (1939) (quoting Red Rock v. Henry, 106 U.S. (16 Otto) 596, 602, 27 L.Ed. 251 (1882))); see International Bhd. of Teamsters v. ICC, 801 F.2d 1423, 1430 (D.C.Cir.1986). As the preceding discussion indicates, there is no “clear and manifest” evidence of congressional intent to repeal all or part of either section 10505(g)(1) or section 11344(c). Thus, we conclude that the plain language of sections 10505(g)(1) and 11344(c) is controlling, and therefore the ICC must apply both of these statutory provisions to the transactions at issue. 3. The “Notwithstanding" Phrase in Section 11343(e) Almost as a last gasp effort to bolster its strained argument regarding the meaning of section 11343(e)(1), the Commission cites the preface to that section as somehow determinative of the issues before us. The preface to section 11343(e)(1) reads “[notwithstanding any provisions of this title.” As best we can tell, the Commission appears to claim that this language shows either a congressional intention to amend or override the statutory provisions that otherwise govern intermodal transactions involving one or more motor carriers, or a congressional intention to allow the Commission to choose between two alternative statutory procedures for approving rail-motor transactions. We find both of these contentions to be specious, with the former reflecting nothing more than a failed attempt to recast the repeal-by-implication argument and the latter reflecting an utterly baseless claim that can find no support in the terms of the statute, its legislative history or common sense. The frailty of the Commission’s argument on the “notwithstanding” phrase is highlighted by the fact that the Commission appears to offer mutually exclusive justifications to support it. In other words, if sections 10505(g)(1) and 11344(c) have been repealed or overridden by section 11343(e), then these provisions cannot be viewed as alternative procedures for the consideration of petitions involving rail-motor acquisitions. The ICC has failed to clarify whether its position rests on only one of these interpretations or on both. Moreover, both of these arguments are inconsistent with the ICC’s third argument, which we have already rejected, that the “intermodal” language in section 10505(g)(1) was never intended to include rail-motor acquisitions in the first place. Thus, the Commission’s interpretation of the relevant statutory provisions is at best ambiguous and at worst makes a mockery of the statutory scheme enacted by Congress. Even if we could resolve the ambiguities in the Commission’s position, we would still reject it as inconsistent with congressional intent clearly expressed in the language and structure of the statute. It is clear that in these circumstances courts need not defer to administrative agencies on purely legal questions, see UAW v. Brock, 816 F.2d 761, 764-65 (D.C.Cir.1987), and the issue regarding the meaning of the preface in section 11343(e)(1) is just such a question. Recently, in Immigration & Naturalization Service v. Luz Marina Cardoza-Fonseca, — U.S.-, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), the Supreme Court recognized this principle in refusing to defer to a statutory interpretation advanced by the Immigration and Naturalization Service; the Court’s holding in Cardoza-Fonseca is directly relevant to the instant case: The narrow legal question whether the two standards are the same is, of course, quite different from the question of interpretation that arises in each case in which the agency is required to apply either or both standards to a particular set of facts. There is obviously some ambiguity in a term like “well-founded fear” which can only be given concrete meaning through a process of case-by-case adjudication. In that process of filling “ ‘any gap left, implicitly or explicitly» by Congress,’ ” the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program. But our task today is much narrower, and is well within the province of the judiciary. We do not attempt to set forth a detailed description of how the well-founded fear test should be applied. Instead, we merely hold that the Immigration Judge and the [Board of Immigration Appeals] were incorrect in holding that the two standards are identical. Id. at 1221-22 (footnotes and citations omitted) (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984) (quoting Morton v. Ruiz, 414 U.S. 199, 231, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974))). It is this same “narrower” task that we undertake here, where we examine the correctness not of an agency’s application of a particular set of statutory criteria to a particular set of facts, but the agency’s determination of which set of statutory criteria Congress intended it to apply. One obvious view of the “notwithstanding” language is that, read together with the phrase “matter related to a motor carrier of property,” the introductory phrase refers to those provisions of Title 49 that deal with matters involving only motor carriers of property, not to those provisions that apply to intermodal transactions. Viewed from this perspective, the “notwithstanding” phrase simply does not refer to section 10505(g)(1) at all. Such an interpretation is supported by the literal language of section 11343(e), is not contradicted by its legislative history, and indeed is consistent with the evidence in the legislative history of congressional intent to effect regulatory changes only within the motor carrier industry. The ICC seeks to avoid this obvious construction by arguing that the “notwithstanding” language in section 11343(e) reflects Congress’ intent to give the ICC a choice between two alternative routes for approving rail-motor transactions. In other words, the ICC argues that when it considers a proposal to exempt a rail-motor transaction, the Commission has the discretion to apply either the statutory provisions that mandate rail labor protection and arguably provide no antitrust immunity — sections 10505(g)(1) and 11344(c) — or the statutory provision that confers antitrust immunity and leaves to the ICC the decision whether to impose labor protection — section 11343(e). Even assuming, arguendo, that section 11343(e) could apply to inter-modal transactions, we can find no support in the statute or the legislative history for the ICC’s claim that Congress gave to the Commission the discretion to decide which statutory provisions to invoke in any given case. Congress certainly did not indicate on what basis the ICC should prefer one approach to the other. Indeed, in the course of this litigation, the ICC has itself taken inconsistent positions, arguing in one breath that it will make the choice based on “whether the primary impact of the transaction (given the ICC’s regulatory responsibilities) is on the railroad or the motor carrier industry,” Joint Brief for ICC and United States at 30, and in the next breath that it will “be guided by the substantive differences in the provisions as they might apply in a particular situation,” id. at 81. These are very different criteria. Even if the ICC could offer a coherent and consistent explanation of the basis upon which it would choose the operative statute, it makes no sense to contend, as the Commission does, that an agency is free to pick and choose between statutory provisions on any ground it sees fit, with no congressional guidance and no rulemaking authority. Cf. Morton v. Mancari, 417 U.S. at 550-51, 94 S.Ct. at 2483. The ICC has offered no evidence whatsoever that Congress intended to give the Commission a free hand in choosing the operative statute. Absent any evidence in support of this novel proposition, the most sensible conclusion is that Congress did not intend to give the ICC such a remarkable degree of discretion. C. Controlling Principles of Statutory Construction The Supreme Court has reminded us that, in employing traditional tools of statutory construction, we must consider the language and overall structure of a statute, and its legislative history, to determine congressional intent. See Block v. Community Nutrition Inst., 467 U.S. 340, 349, 104 S.Ct. 2450, 3455, 81 L.Ed.2d 270 (1984). This is a common-sense approach to statutory construction, and it admits of easy application in this case: First, the literal terms of the statute itself and its overall structure (i.e., embodying different procedures for the consideration of petitions involving “matter[s] related to a motor carrier of property” as opposed to those involving “intermodal ownership”) belie the Commission’s strained attempt to nullify sections 10505(g)(1) and 11344(c); second, there are no indications either in the statute or its legislative history suggesting that Congress intended to repeal, override, limit or amend sections 10505(g)(1) and 11344(c) with the enactment of section 11343(e) — indeed, all of the legislative history is to the contrary; third, the Commission’s proposed construction of the statute seeks to rely on a general statutory provision to nullify a specific one, and it fails to give full effect to all relevant provisions of the statute; and, finally, there is nothing in the statute or its legislative history indicating that Congress intended to give the ICC unbridled discretion to choose between the application of section 11343(e) and sections 10505(g)(1) and 11344(c) in its consideration of rail-motor acquisitions. With these considerations in mind, we reject the Commission’s position because it is plainly at odds with every principle of statutory construction that is pertinent to this case. The simple point here is that the Commission has no authority to bypass the requirements of sections 10505(g)(1) and 11344(c) with respect to rail-motor acquisitions. Although the ICC purported to make alternative findings under section 11344(c) in the July 1985 Decision and the January 1986 Decision, we reject these findings as inadequate. For one thing, the Commission’s position changed significantly from one decision to the next, so we have no assurance of any clear basis for the rulings here under challenge. Furthermore, the so-called alternative findings were supported with only cursory analysis, far short of what would be sufficient to permit informed judicial review. Finally, even the ICC acknowledges that the substantive consequences of proceeding under sections 10505(g)(1) and 11344(c) are critically different from the consequences of a determination under section 11343(e). For these reasons, we cannot uphold the decisions of the ICC. Accordingly, we grant the petitions for review, reverse the decisions of the Commission granting Burlington Northern’s exemption requests, and remand these matters for reconsideration solely under sections 10505 and 11344(c). So ordered. . Because no party has placed the question at issue, we venture no opinion as to the correctness of the ICC’s conclusion that acquisitions to which sections 10505(g)(1) and 11344(c) apply are not immune from antitrust scrutiny. 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_state

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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America ex rel. John B. ADAMS, Petitioner-Appellant, v. Peter BENSINGER, Director, Department of Corrections, and John Twomey, Warden, Respondents-Appellees. No. 73-1531. United States Court of Appeals, Seventh Circuit. Argued April 11, 1974. Decided Dec. 10, 1974. Certiorari Denied April 14, 1975. See 95 S.Ct. 1589. Ivan E. Bodensteiner, Max G. Mess-man (Law Student), Valparaiso, Ind., for petitioner-appellant. William J. Scott, Atty. Gen., Steven J. Rosenberg, Asst. Atty. Gen., Chicago, 111., for respondents-appellees. Before SWYGERT, Chief Judge and FAIRCHILD and SPRECHER, Circuit Judges. SWYGERT, Chief Judge. This appeal represents what we hope will be the last major step in a seven year legal battle to have the federal courts consider the merits of petitioner John B. Adams’ claim for habeas corpus relief. In 1963 petitioner, with two co-defendants, was convicted of murder in an Illinois court and sentenced to a prison term of thirty-five to seventy years. On direct appeal to the Illinois Supreme Court his conviction was affirmed. People v. Henderson, 37 Ill.2d 489, 229 N.E.2d 519 (1967). Petitioner then filed a habeas corpus petition in the United States District Court for the Northern District of Illinois, alleging that an involuntary confession had been used against him. On January 11, 1968 this petition was dismissed for failure to exhaust state remedies. On appeal to this court the order of dismissal was vacated and the cause was remanded to the district court for review of all documents before the Illinois Supreme Court to determine whether the voluntariness issue had been squarely presented to and considered by that court. Adams v. Pate, 418 F.2d 815 (7th Cir. 1969). On remand, the district court again dismissed for failure to exhaust state remedies. That order was affirmed by this court with the suggestion that petitioner had state remedies available under the Illinois Post-Conviction Hearing Act. Pursuant to this suggestion, a petition for state post-conviction relief was filed before the original trial judge in 1970. An evidentiary hearing was held on the issue of the involuntariness of the confession, but on March 19, 1971 the trial judge, without making a finding on the ultimate question of the voluntariness of the confession, denied petitioner any relief apparently on the basis of res judicata and waiver. On September 20, 1972 the Illinois Supreme Court affirmed on the ground that “inasmuch as the issue of the voluntariness of his confession was decided adversely to petitioner on direct appeal, reconsideration of the issue is barred by res judicata.” People v. Adams, 52 Ill.2d 224, 225, 287 N.E.2d 695, 696 (1972). Petitioner then filed the federal ha-beas corpus petition that is the subject of this appeal. Again the issue raised was the use of a confession that was allegedly involuntary in view of the totality of the circumstances. The district court dismissed the petition without a hearing on the basis that the petitioner had waived this claim by not raising it in the state courts. The court added that even if the issue were before it, the confession would be deemed voluntary. I Our initial question is whether for purposes of federal habeas corpus relief the petitioner has waived the claim of an involuntary confession by failing to raise the contention in terms of the “totality of the circumstances.” We do not think that there has been such a waiver. The test to be applied is whether there was a deliberate tactical decision to forego this claim. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) . It appears to us that the issue was at least implicity brought before the state courts and that there is no basis for concluding that the failure to pursue the matter more forcefully in the state courts was an attempt to derive a tactical advantage. Prior to trial a motion to suppress the confession was made and considered. The state courts both at the trial and appellate level were put on notice that the admissibility of this confession was being challenged on due process grounds. Moreover, this objection was made at the earliest desirable point. Admittedly, the arguments concerning the inadmissibility of the confession were directed mainly at the failure to give the type of warnings later required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) . Still, as respondents point out, almost all the evidence upon which petitioner now relies was introduced at the original suppression hearing. These factual elements were put before the judge in the context of an attack upon the admissibility of the confession and the court had the opportunity to determine that the confession was involuntary in view of all the circumstances. Nor is it certain that this issue was not presented on direct appeal, even though the briefs were directed at the Miranda question. The Illinois Supreme Court apparently believed that it had considered the issue, since it later ruled that the post-conviction petition was barred by res judicata rather than by the doctrine of waiver which also bars relief under the Illinois Post-Conviction Hearing Act. See United States ex rel. Williams v. Brantley, 502 F.2d 1383 (7th Cir. 1974). This is not simply a case in which there was a failure to raise a certain argument or object to particular evidence in order to further an intended strategic maneuver. The filing of the motion to suppress is conclusive proof that there was no desire to allow the introduction of the confession. We do not find persuasive the fact that at trial Adams denied ever making the confession. The question before us is a legal one concerning the constitutionality of the confession. That question could have been presented to a court without infringing on the ability to deny the fact that the confession was ever given. Indeed, despite this denial a constitutional attack on the confession was entertained on direct appeal. We are presented with an important claim that does “call into question the accuracy of the fact-finding process.” There was no tactical reason to avoid raising the contention in the state courts. Notice of objection to the confession was given at the appropriate time. The highest court in Illinois has indicated that the issue was in fact considered. There has been no deliberate by-pass of state remedies and petitioner is entitled to have a federal court finally consider the merits of this alleged constitutional deprivation. II We have determined that the ultimate question of the voluntariness of this confession is also before us. The district court did address the merits. An evidentiary hearing is unnecessary since there was one in state court on the post-conviction petition and the adequacy of that hearing is not being challenged. Further, the habeas corpus petition itself requests relief on the basis of the state record alone. Petitioner’s counsel has conceded that there is no additional evidence to be submitted. Accordingly, we have requested and received supplemental briefs discussing this question. The facts relevant to this inquiry are as follows. The police, without a warrant, took the petitioner from his bed at about 1:00 a. m. on December 28, 1962 and placed him under arrest. He was then taken to a police station where, for at least some period of time, he was locked to a radiator. Several police officers questioned petitioner for the admitted purpose of getting a confession, if possible. However, petitioner was never informed of his right to remain silent or his right to have a lawyer present. At approximately 2:30 a. m. an assistant state’s attorney arrived at the police station with a court reporter. The assistant state’s attorney questioned Adams and his two co-defendants who had also been arrested. He then proceeded to take recorded statements from each of them in the form of questions and answers. Petitioner’s statement was the last to be taken and commenced at 5:10 a. m. A joint statement was also given beginning at 6:05 a. m. The assistant state’s attorney had not informed petitioner of his right to remain silent and his right to the assistance of counsel, although petitioner had stated that he could neither read nor write English and had only a third grade education. At about 7:00 a. m. petitioner was transferred to the police department central detention facility. At about 1:00 p. m. he was transferred to the Criminal Courts Building and taken to the library where, at about 2:30 p. m., in the presence of a police officer and an assistant state’s attorney, he initialed and signed the confession after it was read aloud to him. Petitioner was finally taken before a judge on December 29, 1962. It was later established that the petitioner had no prior police record. At the post-conviction petition hearing considerable evidence concerning the petitioner’s mental capacity was introduced. Petitioner’s intelligence quotient was found to be in the range of 56 to 62, indicating a person who is “mentally defective.” A trained behavioral scientist explained that one who is “mentally defective” would have defective comprehension of oral or written directions or communications, especially when under tension or in strained surroundings. Adams’ ability to depend on his memory was also impaired. A clinical psychologist described petitioner as a “very naive, simple man, who could very well, very easily be influenced, who is quite unsophisticated and not aware of relationships in the world.” He further testified that petitioner was “very cooperative but very docile.” The test to be applied in cases such as this in which Miranda is not applicable is based on those “standards of voluntariness which had begun to evolve long prior to our decisions in Miranda and Escobedo . . . .” Davis v. North Carolina, 384 U.S. 737, 740, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). The Supreme Court has recently summarized these standards in Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973): In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused, e. g., Haley v. Ohio, 332 U.S. 596, [68 S.Ct. 302, 92 L.Ed. 224]; his lack of education, e. g., Payne v. Arkansas, 356 U.S. 560, [78 S.Ct. 844, 2 L.Ed.2d 975] ; or his low intelligence, e. g., Fikes v. Alabama, 352 U.S. 191, [77 S.Ct. 281, 1 L.Ed.2d 246]; the lack of any advice to the accused of his constitutional rights, e. g., Davis v. North Carolina, 384 U.S. 737, [86 S.Ct. 1761, 16 L.Ed. 2d 895]; the length of detention, e. g., Chambers v. Florida, supra, [309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716] ; the repeated and prolonged nature of the questioning, e. g., Ashcraft v. Tennessee, 322 U.S. 143, [64 S.Ct. 921, 88 L.Ed. 1192]; and the use of physical punishment such as the deprivation of food or sleep, e. g., Reck v. Pate, 367 U.S. 433, [81 S.Ct. 1541, 6 L.Ed.2d 948]. In all of these cases, the Court determined the factual circumstances surrounding the confession, assessed the psychological impact on the accused, and evaluated the legal significance of how the accused reacted. Culombe v. Connecticut, supra, [367 U.S. 568] at 603, [81 S.Ct. 1860.] at 1879, 6 L.Ed.2d 1037]. (footnote omitted) Thus, we must look to the merits of each individual factor, but ultimately the decision as to voluntariness should be based on an evaluation of the totality of all the circumstances. We believe there are three elements which call into question the voluntary nature of this confession. The first is the undisputed fact that petitioner was never informed that he had a right to remain silent and a right to the assistance of counsel. The assistant state’s attorney failed to inform him of these rights although he was aware of how little education the petitioner had and how unlikely it was that he knew of these rights. This failure to inform petitioner of these rights is an important element in our equation regardless of the inapplicability of Miranda, since the fact “that a defendant was not advised of his right to remain silent or his right respecting counsel at the outset of interrogation, as is now required by Miranda, is a significant factor in considering the voluntariness of statements later made.” Davis v. North Carolina, 384 U.S. 737, 740, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966). The weight to be accorded this fact is particularly great in light of petitioner’s lack of previous contact with the police. The second factor concerns the timing of the interrogation. Petitioner was apparently awakened by the police. The questioning occurred during the middle of the night and petitioner most certainly suffered from lack of sleep. The clear purpose of this questioning was to get a confession if at all possible. The voluntary character of this desired confession is lessened by the hour of the day during which it was given. The final and most substantial consideration involves the nature of petitioner himself. A significant doubt is cast over the confession of a man of such low intellect and limited education. While petitioner was capable of giving a voluntary confession, the expert testimony of his inability to understand communications and his docile nature necessitate a skepticism concerning the voluntariness of his confession. The district judge, however, greatly discounted this psychological testimony because his reading of petitioner’s testimony at trial and at various hearings indicated that Adams’ answers were “always responsive and lucid,” even under cross-examination. We agree that it is proper to consider such testimony and our own reading of petitioner’s answers has convinced us that there is some merit to this conclusion. But what the court below has failed to take into account is the fact that at the time of this testimony petitioner was represented by counsel who undoubtedly prepared him. The clinical psychologist testified that Adams’ apparent recognition in court of the function of a warrant was not conclusive, since he could have been prompted to give an answer without real understanding. The undisputed results of objective intelligence tests are of overriding significance. Our concern is with petitioner’s abilities during a period in which he had not received the assistance of counsel and had no one to advise him. We believe the expert psychological testimony is helpful in this regard. Indeed, the facts of this case are strikingly similar in this aspect to those in United States v. Hull, 441 F.2d 308 (7th Cir. 1971), where we relied heavily on the defendant’s limited mental capabilities in determining that his confession was involuntary. Hull was described as follows: J. L. Hull is a 34 year old Negro who is mentally defective. His full-scale I.Q. is 54, and he has the mental age of an eight or nine year old child. He completed the third grade in school and is illiterate. Psychiatric experts termed him passive and easily led by a more dominant personality. Hull can follow instructions if they are repeated or paraphrased for him several times; otherwise he has a tendency to lose his attention and comprehension. Based on that description we found that Hull “was ill-equipped to combat ‘the diverse pressures which sap or sustain his powers of resistance and self-control’.” The same must also have been true of Adams. Viewing all these factors together has led us to conclude that petitioner’s confession was involuntary. Respondents address each consideration separately and argue that each is not necessarily sufficient in and of itself to support this conclusion. Our task is to consider the combination of all these elements. Even if we were to accept the proposition that no one factor is conclusive, we still must look to the totality. What we find is a confession given in the middle of the night by a tired, inex-perieneed, uneducated, docile, mentally defective man who was never even informed that he did not have to talk and that he was entitled to the aid of an attorney. Such a confession is not “the product of a rational intellect and a free will.” Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 281, 4 L.Ed.2d 242 (1960). The judgment of the district court is reversed and this cause is remanded to the district court with direction that the writ issue unless the petitioner is given a new trial within 120 days of the date of the mandate of this court. . For this court’s present view of when relief must be sought under the Illinois PostOonviction Hearing Act before a federal habeas corpus petition will be entertained see United States ex rel. Williams v. Brantley, 502 F.2d 1383 (7th Cir. 1974). . See Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). . United States ex rel. Allum v. Twomey, 484 F.2d 740, 746 (7th Cir. 1973). . While this evidence was based on tests and examinations given petitioner when he entered prison in 1964, we see no reason to question that the conclusions adequately portray petitioner’s mental capacity when he gave the alleged involuntary confession. . 441 F.24 at 309. . 441 F.2d at 312. Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number. Answer:

songer_circuit

E

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. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. STATE OF MISSISSIPPI, et al., Defendant-Appellant. No. 87-4214. United States Court of Appeals, Fifth Circuit. Feb. 26, 1988. John T. Kitchens, Sp. Asst. Atty. Gen., Edwin Lloyd Pittman, Atty. Gen., Amelia Y. Smith, Asst. Atty. Gen., Jackson, Miss., for defendant-appellant. L. Lawrence Ashe, Jr., Kelly J. Koelker, Atlanta, Ga., amicus curiae. Peggy R. Mastroianni, Washington, D.C., Jerome C. Rose, E.E.O.C., Mildred Byrd, Brenda Montgomery, G. William Davenport, Birmingham, Ala., Karen H. Baker, E.E.O.C., Washington, D.C., for plaintiff-appellee. Before CLARK, Chief Judge, GEE and RUBIN, Circuit Judges. GEE, Circuit Judge: Conflict of Laws The State of Mississippi appeals a finding by the district court, 654 F.Supp. 1168, that a compulsory retirement statute for game wardens violates federal anti-age discrimination law and thus is unenforceable. The state statute retires conservation officers of the Department of Wildlife Conservation at age 60 (as of July 1, 1986; age 62 from July 1, 1985 to June 30, 1986) and sets a maximum hiring age of 35. The Age Discrimination in Employment Act of 1967 (ADEA), on the other hand, provides that it is “unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual ... because of such individual’s age.” 29 U.S.C. § 623(a)(1). The ADEA does have an “escape clause” which allows employers some limited flexibility in using age as a factor in business decisions. It provides that it is not unlawful for “an employer ... to take any action otherwise prohibited under subsection[s] (a) [age as an employment criteria] ... where age is a bona fide occupational qualification reasonably necessary to the normal operation of a particular business_” 29 U.S.C. § 623(f)(1). Apart from this “escape clause,” the command of the ADEA against the use of age as a criterion to discriminate among employees collides with the policy preference of the Mississippi legislature. Because the Supreme Court has read the ADEA to preempt the field with respect to age discrimination, see EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), unless Mississippi can show — and the district court believed that it did not — that its policy preference reflected a bona fide occupational criterion, its statute is not valid. It is, however, Mississippi’s continued argument that age is a “bona fide occupational qualification reasonably necessary to the normal operation of a particular business” — that of conservation officer — that constitutes the essence of this appeal (emphasis added). The Boundaries of “Reasonably Necessary” . The Supreme Court has shaped decision-making guidelines for determining when age should be considered reasonably necessary as a job qualification. EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983) provides the basic interpretation of the ADEA as it applies to state and local governments. In EEOC v. Wyoming, a Wyoming statute providing for the retirement of game wardens at age 55 (unless further employment was approved by the employer) was held to violate the ADEA. The extension of the ADEA was said not to “ ‘directly impair’ the State’s ability to ‘structure integral operations in areas of traditional governmental functions.’ ” 460 U.S. 226, 239, 103 S.Ct. 1054, 1062, 75 L.Ed.2d 18 (1983). Thus the Court maintained that Wyoming remained free to set its retirement policy if it could demonstrate a BFOQ. See id. at 240, 103 S.Ct. at 1062. The extension of the ADEA to the states was intended, said the Court, to decrease the motivation to engage in age discrimination based “on stereotypes unsupported by objective fact.” Id. at 231, 103 S.Ct. at 1057 (emphasis added). The dissent in Wyoming, however, disagreed with the cost-benefit calculation, contending that the extension intruded too far into the governance of local affairs in that Congress “lacked the means to analyze the factors that bear on the decision, such as the diversity of occupational risks, climate, geography, and demography.” Id. at 264, 103 S.Ct. at 1075 (Burger C.J., Powell J., Rehnquist J. and O’Connor J., dissenting). The dissent noted that the “authority and responsibility for making employment decisions should be in the hands of local governments, subject only to those restrictions unmistakably contemplated by the Fourteenth Amendment.” Id. Responding to these concerns about federalism, Congress clarified its position: 1986 amendments to the ADEA permit States to “fail or refuse to hire or to discharge any individual because of such individual’s age ... with respect to the employment of ... a firefighter or as a law enforcement officer ... in effect under applicable State or local law on March 3, 1983 [for a seven-year period] and pursuant to a bona fide hiring or retirement plan_” 29 U.S.C. § 623(i)(l) & (2). Congress, however, voiced its continuing concern about stereotypes unsupported by objective fact by conditioning this deference to state decision-making on a requirement that the state plan not be “a subterfuge to evade the purposes of the chapter.” 29 U.S.C. § 623(i)(2). Western Air Lines v. Criswell, 472 U.S. 400, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985), further refined the Supreme Court’s application of the ADEA to the states by offering standards by which to limit the boundary between federal and state powers. The case evaluated the content of jury instructions on a BFOQ defense against an airline that had an age-60 retirement for flight engineers. The Court noted that the legislative history of the ADEA indicated that the BFOQ “escape clause” was, meant to be “extremely narrow.” 472 U.S. at 412, 105 S.Ct. at 2751. The Court crafted a two-pronged inquiry to set the width of the “extremely narrow” BFOQ exception. First, in order to establish a BFOQ defense to such an age-based qualification, it is relevant to ascertain whether “ ‘the job qualifications which the employer invokes to justify his discrimination [are] reasonably necessary to the essence of his business_” (472 U.S. at 413, 105 S.Ct. at 2751, quoting Tamiami). Second, since age qualifications must be more than merely convenient to the employer, he must demonstrate that he “is compelled to rely on age as a proxy for the [essential] job qualification validated in the first inquiry.” 472 U.S. at 414, 105 S.Ct. at 2751. This second prong can be satisfied by “establishing either (a) that it [the employer] had reasonable cause to believe that all or substantially all persons over the age qualification would be unable to perform safely the duties of the job, or (b) that it is highly impractical to deal with the older employees on an individualized basis.” Id. These two prongs are derived from and closely resemble similar guidelines set forth by our Court in Usery v. Tamiami Trail Tours, 531 F.2d 224 (5th Cir.1976), which focused on a company’s policy of refusing to hire persons over age-40 as inter-city bus drivers. Each of the two prongs serves a different purpose in relating the specific circumstances of a case to the purposes of the ADEA. In Criswell, the Court explains the significance of the first prong which it drew from Tamiami. Proof is needed that a job qualification is “reasonably necessary” to the normal operation of the particular business because some qualifications may be “so peripheral to the central mission of the employer’s business that no age discrimination can be ‘reasonably neces-sary_’” See, Western Air Lines v. Criswell, 472 U.S. at 413, 105 S.Ct. at 2751. In this way, the “reasonably necessary” criterion serves as a basic check against qualifications so peripheral as to be, in light of the 1986 congressional amendments, non-essential to the job. Employers are entitled to articulate the qualifications they consider essential to their businesses and to exercise substantial discretion in judging the reasonableness of safety-related job qualifications. Yet such decisions must be supported by objective fact in order to comply with the ADEA. As recognized by the 1986 congressional amendments to the ADEA, such employment decisions by a state are at the heart of federalism. The second prong inquires whether age is a necessary proxy for the essential— in the cases of bus companies and airlines, safety-related — job qualification being sought. An employer must show either that all or substantially all persons over the age limit would be unable to perform the job safely and efficiently or that it was “impossible or highly impractical to deal with older employees on a individualized basis.” 472 U.S. at 414, 105 S.Ct. at 2752 (footnote omitted). The employer could establish that “some members of the discriminated-against class possess a trait precluding safe and efficient job performance that cannot be ascertained by means other than knowledge of the applicant’s membership in the class.” Id. Thus the first prong of the test inquires whether an essential job qualification is at stake, the second whether age is a necessary proxy for that qualification. Legislative Discretion as to the Boundaries of “Reasonably Necessary” Although we held, in Tamiami, that employers are entitled to substantial discretion in judging the reasonableness of qualifications, the Supreme Court has left undefined the boundaries of employers’ discretion — in this case a state legislature’s — in weighing the three considerations it has identified. Eecent circuit court decisions have sought to fill in the remaining gap left by the Supreme Court’s analysis in balancing the competing values of antidiscrimination and federalism. In reversing a district court’s invalidation of a mandatory retirement age, the Eighth Circuit pointed out that the Missouri General Assembly had made a “legislative judgment that the age restrictions ... [were] in the best interest of the Patrol and the people the Patrol serve[d] throughout the state ... [and that the court] should accord some deference to the state legislative declaration.” Equal Employment Opportunity Commission v. Missouri State Highway Patrol, 748 F.2d 447, 450 (8th Cir.1984). The court cautioned, however, that while concern for federalism was a consideration, it did not “relieve the Patrol from the burden of showing that each of these restrictions is a BFOQ.” Id. In this circumscribed way, the court set an outside limit on discretion by the legislature as to what was reasonably necessary. Equal Employment Opportunity Commission v. Commonwealth of Pennsylvania, 829 F.2d 392 (3rd Cir.1987) more precisely identified the burden that the employer was required to meet in demonstrating a BFOQ reasonably necessary for a job. The court held that Pennsylvania could not justify its mandatory retirement age for state troopers because it had not “developed, implemented and enforced” minimum standards of health and fitness that would justify the BFOQ. The court distinguished a recent case, EEOC v. New Jersey, 631 F.Supp. 1506 (D.N.J.1986), aff'd, 815 F.2d 694 (3rd Cir.1987), in which New Jersey’s mandatory requirement law for state police officers was upheld against an ADEA challenge 829 F.2d at 396. In that case, the district court found that all members of the New Jersey State Police, whatever their ages, were subject to minimum fitness standards and that all or substantially all officers over age 55 could not meet those standards. It is the finding of minimum standards that are “developed, implemented and enforced” that provides the threshold limiting an employer’s discretion in establishing a BFOQ defense. Not only would a finding of minimum standards limit an employer’s discretion, but also it would satisfy the Supreme Court’s concern to decrease stereotypes unsupported by objective fact and would ensure both that a good faith decision on required qualifications was made by a competent authority and that the use of age as a proxy was proper. Despite this minimum standards limitation on an employer’s discretion to articulate what is reasonably necessary, a court must be especially cautious when dealing with legislatures for the “task is admittedly a most difficult and often impossible one, since legislatures are not known for providing clear guidance to those interpreting their works”. See Aguillard v. Edwards, 778 F.2d 225, 227 (5th Cir.1985) (dissent from denial of Petition for Rehearing En Banc) (scrutinizing legislative motivation for secular purpose in an establishment of religion case). For this reason, a court examining the discretion available to an employer must exercise special care when the employer is a legislature. Mississippi’s Legislative Determination It is likely that Mississippi’s age qualifications for game wardens would have passed muster had the Mississippi legislature “developed, implemented and enforced” minimum standards of health and fitness and shown that nearly all conservation officers over age sixty could not meet those standards or that individual determinations were impossible. Since the Supreme Court’s concerns would have been satisfied, our task would have been simply to defer to a decision by a competent authority. That did not take place, however; and because it did not, there is no essential job qualification in this case that age can stand as a proxy for. The district court has made factual findings, which we do not find to be clearly erroneous, that: (a) no legislative history existed for the enactment, 654 F.Supp. at 1172; (b) “the mandatory retirement age for conservation officers was sold to the legislature ... without first instituting health and fitness policies within the Department,” id.; (c) “no standards [were] presented to the family physician to guide him in his determination that the candidate [was] healthy,” id. at 1174; (d) there were no physical fitness or health standards that were used for retention of supervisors, lake and area managers, and conservation officers in the Fisheries and Wildlife Department, id. at 1175. There being no such standards, age cannot serve as their proxy. This being so, the district court correctly reasoned that Mississippi failed the first prong of the Criswell test. The court, however, went further in its analysis and examined “arguendo ” whether the Mississippi enactment would have passed the second prong of the Criswell test. Such an analysis was unnecessary, and we express no opinion on its validity. It will be time to consider such matter when and if Mississippi sets qualifications, such as health and fitness, that are circumscribed by minimum standards. In that event, proper deference, especially since the decision-maker is a legislature, must be afforded with respect to the social choices that it makes. Because Mississippi failed to establish health and fitness qualifications reasonably necessary for the job of conservation officer and for which age may be a valid proxy, the BFOQ “escape clause” of the ADEA is not available. Miss.Code Ann. § 49-1-15 (Supp.1985) thus plainly violates the ADEA, and it is unenforceable. This district court order is therefore AFFIRMED. _ . Miss.Code Ann. § 49-1-15 (Supp.1985). . In Tamiami, Judge Brown had offered a "plain meaning" reading of "reasonably necessary”: “Typically statutory, the words ‘reasonably necessary to the normal operation of its business,' are not normally of the variety that suggest hand-wringing, earth-shaking, heartrending decisions of great moment.” Usery v. Tamiami Trail Tours, 531 F.2d 224, 226 (5th Cir.1976). 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_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. UNITED STATES v. KING. No. 672. Argued April 2, 1969. Decided May 19, 1969. Assistant Attorney General Ruckelshaus argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Harris Weinstein, and Morton Hollander. Neil B. Kabatchnick argued the cause for respondent. With him on the brief was Richard H. Love. Warner W. Gardner and Benjamin W. Boley filed a brief for the Liner Council, American Institute of Merchant Shipping, as amicus curiae. Mr. Justice Black delivered the opinion of the Court. Colonel John P. King, respondent, was retired from the Army for longevity (length of service) over his objection that he should have been retired for physical disability. Had his retirement been based on disability, Colonel King would have been entitled to an exemption from income taxation allowed by § 104 (a)(4) of the Internal Revenue Code of 1954, 26 U. S. C. § 104 (a) (4). He brought this action in the Court of Claims alleging that the Secretary of the Army’s action in rejecting his disability retirement was arbitrary, capricious, not supported by evidence, and therefore unlawful, and asked for a judgment against the United States for an amount of excess taxes he had been compelled to pay because he had been retired for longevity instead of disability. The Court of Claims agreed with the United States that the claim as filed was basically one for a refund of taxes and was therefore barred by King’s failure to allege that he had filed a timely claim for refund as required by 26 U. S. C. § 7422 (a). In this situation, the court suggested to counsel that it might have jurisdiction under the Declaratory Judgment Act and requested that briefs and arguments on this point be submitted to the court. This was done. The Court of Claims, in an illuminating and interesting opinion by Judge Davis, reached the conclusion that the court could exercise jurisdiction under the Declaratory Judgment Act, 28 U. S. C. § 2201. In so holding, the court thereby rejected the Government’s contentions that the Declaratory Judgment Act does not apply to the Court of Claims and that the court’s jurisdiction is limited to actions asking for money judgments. By this ruling the court expressly declined to follow a long line of its own decisions beginning with Twin Cities Properties, Inc. v. United States, 81 Ct. Cl. 655 (1935). As the opinion of Judge Davis showed, the question of whether the Court of Claims has jurisdiction to issue declaratory judgments is both substantial and important. We granted certiorari to decide that question. The Court of Claims was established by Congress in 1855. Throughout its entire history up until the time that this case was filed, its jurisdiction has been limited to money claims against the United States Government. In 1868 this Court held that “the only judgments which the Court of Claims [is] authorized to render against the government . . . are judgments for money found due from the government to the petitioner.” United States v. Alire, 6 Wall. 573, 575. In United States v. Jones, 131 U. S. 1, this Court reaffirmed this view of the limited jurisdiction of the Court of Claims, and held that the passage of the Tucker Act in 1887 had not expanded that jurisdiction to equitable matters. More recently, in 1962, it was said in the prevailing opinion in Glidden Co. v. Zdanok, 370 U. S. 530, 557, on a point not disputed by any of the other members of the Court that “[f]rom the beginning [the Court of Claims] has been given jurisdiction only to award damages . . . .” No amendment purporting to increase the jurisdiction of the Court of Claims has been enacted since the decision in Zdanok. The foregoing cases decided by this Court therefore clearly show that neither the Act creating the Court of Claims nor any amendment to it grants that court jurisdiction of this present case. That is true because Colonel King’s claim is not limited to actual, presently due money damages from the United States. Before he is entitled to such a judgment he must establish in some court that his retirement by the Secretary of the Army for longevity was legally wrong and that he is entitled to a declaration of his right to have his military records changed to show that he was retired for disability. This is essentially equitable relief of a kind that the Court of Claims has held throughout its history, up to the time this present case was decided, that it does not have the power to grant. It is argued, however, that even if the Court of Claims Act with its amendments did not grant that court the authority to issue declaratory judgments, it was given that authority by the Declaratory Judgment Act of 1934. Support for this proposition is drawn from the language in the Declaratory Judgment Act that “[i]n a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration.” The first answer to this contention is that, as we have pointed out, cases seeking relief other than money damages from the Court of Claims have never been “within its jurisdiction.” And we agree with the opinion of the Court of Claims in this case that the legislative history materials concerning the application of this Act to the Court of Claims “are, at best, ambiguous.” For the court below, it was sufficient that there was no clear indication that Congress affirmatively intended to exclude the Court of Claims from the scope of the Declaratory Judgment Act. We think that this approach runs counter to the settled propositions that the Court of Claims’ jurisdiction to grant relief depends wholly upon the extent to which the United States has waived its sovereign immunity to suit and that such a waiver cannot be implied but must be unequivocally expressed. United States v. Sherwood, 312 U. S. 584. This was precisely the position taken by the Court of Claims in a line of its own decisions beginning with Twin Cities Properties, Inc. v. United States, 81 Ct. Cl. 655 (1935). In that case, decided soon after the passage of the Declaratory Judgment Act, the Court of Claims held that it would require a specific and express statute of Congress to give the Court of Claims the power to issue declaratory judgments. The Court of Claims said in Twin Cities that: “If Congress had intended to extend the scope of this court’s jurisdiction and subject the United States to the declaratory judgment act, we think express language would have been used to do so, and the court is not warranted in assuming an intention to widen its jurisdiction from the general provisions of the act which concerns a proceeding equitable in nature and foreign to any jurisdiction this court has heretofore exercised.” 81 Ct. Cl., at 658. We think that the earlier decisions of the Court of Claims and those that have consistently followed them were correct. There is not a single indication in the Declaratory Judgment Act or its history that Congress, in passing that Act, intended to give the Court of Claims an expanded jurisdiction that had been denied to it for nearly a century. In the absence of an express grant of jurisdiction from Congress, we decline to assume that the Court of Claims has been given the authority to issue declaratory judgments. Reversed. Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:

songer_method

F

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. UNITED STATES of America, Appellee, v. Rocco FRUMENTO et al. In re Subpoena to Vito N. PISCIOTTA, Appellant. No. 76-1251. United States Court of Appeals, Third Circuit. Argued March 23, 1976. Reargued Nov. 4, 1976. Decided March 7, 1977. As Amended March 18, 1977. David W. Marston, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Division, Philadelphia, Pa., for appellee. A. Charles Peruto, Burton A. Rose, Philadelphia, Pa., for appellant, Vito N. Pisciotta. Argued March 23, 1976 Before SEITZ, Chief Judge, and ROSENN and GARTH, Circuit Judges. Reargued Nov. 4, 1976 Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges. OPINION OF THE COURT GARTH, Circuit Judge. This appeal requires us to determine whether a defendant who has been tried and convicted but not yet sentenced, and whose post-trial motions were still pending at the time the government sought his testimony at the trial of his codefendants, may be compelled to testify under a grant of immunity. Upon his refusal to testify, the district court entered an order of contempt and confinement pursuant to 28 U.S.C. § 1826. Although the government contends that the termination of the trial at which he was to testify renders this appeal moot, we disagree. Nevertheless, we hold that Pisciotta’s trial testimony could be compelled. We therefore affirm the order of contempt and confinement. I. Vito N. Pisciotta was one of five defendants indicted for violation 18 U.S.C. § 1962 (racketeering) and 26 U.S.C. § 7206(1) (submitting false income tax returns). Three separate jury trials were scheduled. Pisciotta’s trial was severed from the trial of his codefendants, and he was tried to a jury and convicted on November 22, 1975. Another defendant (Collitt) was tried separately and acquitted. The trial of the three remaining defendants, Frumento, Millhouse and Sills commenced March 1, 1976. Pisciotta, who at that time had not been sentenced and whose post-trial motions were still pending, was subpoenaed by the government to testify on March 3, 1976 at the trial of his three codefendants. After his motion to quash the subpoena was denied, Pisciotta invoked his Fifth Amendment privilege and refused to testify. The district court, on motion of the government, thereupon granted Pisciotta immunity under 18 U.S.C. § 6002 and directed him to answer. Pisciotta, after consulting with his attorney, still refused to answer the questions put to him. Upon his continued refusal, the district court found Pisciotta in contempt under 28 U.S.C. § 1826(a) and ordered him confined in the custody of the United States Marshal until the proceedings terminated or until he purged himself of the contempt by complying with the court’s order. Pisciotta immediately applied for a stay of the March 3, 1976 order of confinement. His application was denied. He then filed a notice of appeal and sought a stay of custody pending the outcome of his appeal from the district court’s order. A panel of this Court denied that motion for stay by an order dated March 3, 1976. Pisciotta sought review of that decision. The panel, treating his “Motion for Review” as a request for panel reconsideration, denied his motion on March 4, 1976. Finally, Pisciotta sought review by the court in banc. While Pisciotta’s motion for in banc consideration, along with his direct appeal of the district court’s March 3,1976 order, was before this Court, the trial of Pisciotta’s former codefendants ended. Therefore, on March 23, 1976, the Court, acting in banc, dismissed as moot the motion for a stay of custody. Thus only the direct appeal remained. The end of the trial of Pisciotta’s codefendants and Pisciotta’s consequent release from custody (see 28 U.S.C. § 1826(a)(1), note 2 supra) prompted the panel héaring Pisciotta’s direct appeal to require briefing on the issue of mootness. The direct appeal was argued to the panel on March 23, 1976. Subsequently, and before filing of the panel opinion, it was ordered pursuant to this Court’s Internal Operating Procedure N. 4 that the case be listed for rehearing in banc. II. The government has contended that the appeal from the district court’s order of March 3, 1976 which adjudicated Pisciotta to be in contempt and which ordered his confinement is now moot because the court proceeding at which he was to testify has terminated and he has been released from custody. We cannot agree. In St. Pierre v. United States, 319 U.S. 41, 42, 63 S.Ct. 910, 911, 87 L.Ed. 1199 (1943) the Court held moot an appeal from a conviction for criminal contempt stating that “the case is moot because, after petitioner’s service of his sentence and its expiration, there was no longer a subject matter on which the judgment of this Court could operate.” While superficially it would appear that this holding controls the present case, the exceptions to the St. Pierre mootness rule have, to a large extent, dissipated its vitality. The Court in St. Pierre recognized that the petitioner there could have had his case reviewed before the expiration of his sentence, but no stay or supersedeas had been sought. The Court thereby implied an exception to the mootness rule — that an appeal is not moot even though the appellant has been released from custody or has served his sentence if he has taken all possible steps to have the order of confinement promptly reviewed prior to his release. In commenting on this aspect of the St. Pierre holding, the Supreme Court in Sibron v. New York said, “This was a plain recognition of the vital importance of keeping open avenues of judicial review of deprivations of constitutional right.” In so stating, the Sibron Court recognized the importance of the principle that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review. In Sibron, the Court held that petitioner’s appeal was not moot even though he had completed service of the six month sentence imposed upon him as a result of his conviction for possession of drugs. In emphasizing the exception to the St. Pierre rule, the Court noted that “there was no way for Sibron to bring his case here [the Supreme Court] before his six month sentence expired . . . despite the fact that he took all steps to perfect his appeal in a prompt, diligent and timely manner.” 392 U.S. at 52, 88 S.Ct. at 1897. Here as we have indicated, Pisciotta immediatély sought a stay of the district court’s order of March 3, 1976 which directed his confinement. After his district court application had been denied, on the same day he sought a stay from a panel of this Court. When this motion was denied, Pisciotta unsuccessfully sought a stay from the Court in banc. Simultaneously, he appealed from the March 3, 1976 order. These “prompt, diligent and timely” actions clearly bring Pisciotta within the reviewability exception to the mootness doctrine of St. Pierre. We recognize that the most traditional of exceptions to the mootness doctrine has been characterized as “capable of repetition yet evading review,” Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); DeFunis v. Odegaard, 416 U.S. 312, 318, 94 S.Ct. 1704, 40 L.Ed.2d 164, (1974); Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Super Tire Engineering Corp. v. McCorkle, 416 U.S. 115, 125, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974); Scott v. Kentucky Parole Board, 429 U.S. 60, 97 S.Ct. 342, 50 L.Ed.2d 218 (1976) (Stevens, J., dissenting). This Court applied that standard, despite its seeming inapplicability, in United States v. Schiavo, 504 F.2d 1 (3d Cir.) (in banc) cert. denied, 419 U.S. 1096, 95 S.Ct. 690, 42 L.Ed.2d 688 (1974), where we considered the merits of a press “silence order” although the trial to which the order pertained had been completed. This Court held that the appeal should not be dismissed as moot even though there no longer existed any restraints upon the newspapers and reporter. We said in Schiavo that the dispute was “capable of repetition yet evading review” because If this case were deemed moot, it is unlikely that members of the press who are subject to a silence order would ever be able to obtain appellate review, since the underlying criminal proceeding would almost always terminate before the appellate court hears the case. Id. at 5. Schiavo reflects an application of the standards of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Supreme Court’s abortion decision, where the Court observed: The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950); Golden v. Zwickler [394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113] supra ; SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972). But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be “capable of repetition, yet evading review.” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969); Carroll v. Princess Anne, 393 U.S. 175,178-179, 89 S.Ct. 347, 350, 21 L.Ed.2d 325 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 897-898, 97 L.Ed. 1303 (1953). 410 U.S. at 125, 93 S.Ct. at 712. In Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974), the Supreme Court rejected the suggestion of mootness despite the fact that the underlying labor dispute giving rise to petitioner’s claims had ended by the execution of a new collective bargaining agreement and the return to work of the strikers. Although economic concerns were involved, rather than the personal interest (pregnancy) at stake in Roe v. Wade, the Supreme Court applied the same criteria: Certainly, the pregnant appellants in Roe v. Wade, supra, and in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), had long since outlasted their pregnancies by the time their cases reached this Court. Yet we had no difficulty in rejecting suggestions of mootness, 410 U.S., at 125, 93 S.Ct., at 712-713 and 187, 93 S.Ct., at 745. Similar and consistent results were reached in Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 1282-1283, 39 L.Ed.2d 714 (1974); Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5, 93 S.Ct. 1245, 1249, 36 L.Ed.2d 1 1973); Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); and Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494-1495, 23 L.Ed.2d 1 (1969), cases concerning various challenges to state election laws. The important ingredient in these cases was governmental action directly affecting, and continuing to affect, the behavior of citizens in our society. The issues here are no different. Economic strikes are of comparatively short duration. There are exceptions, of course. See, for example, Local 833, UAW v. NLRB, 112 U.S.App.D.C. 107, 300 F.2d 699, cert. denied sub nom. Kohler Co. v. Local 833, UAW, etc., 370 U.S. 911, 82 S.Ct. 1258, 8 L.Ed.2d 405 (1962). But the great majority of economic strikes do not last long enough for complete judicial review of the controversies they engender. U.S. Dept. of Labor, Bureau of Labor Statistics, Analysis of Work Stoppages 1971, Table A-3, p. 16 (1973). A strike that lasts six weeks, as this one did, may seem long, but its termination, like pregnancy at nine months and elections spaced at year-long or biennial intervals, should not preclude challenge to state policies that have had their impact and that continue in force, unabated and unreviewed. The judiciary must not close the door to the resolution of the important questions these concrete disputes present. Id. at 126-27, 94 S.Ct. at 1700. One of the most recent expressions of the Supreme Court in the mootness area is found in Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). Petitioners in Nebraska Press sought to vacate a court-ordered ban on the publication of information revealed during the pretrial hearings of a murder trial. As Chief Justice Burger observed: The order at issue in this case expired by its own terms when the jury was impaneled on January 7, 1976. There were no restraints on publication once the jury was selected, and there are now no restrictions on what may be spoken or written about the Simants ease. Id. at 546, 96 S.Ct. at 2796. Still the court ruled that the merits would be reached: Our jurisdiction under Art. III, § 2, of the Constitution extends only to actual cases and controversies. Indianapolis School Comm’rs v. Jacobs, 420 U.S. 128, 96 S.Ct. 848, 43 L.Ed.2d 74 (1975); Sosna v. Iowa, 419 U.S. 393, 397-403, 95 S.Ct. 553, 556-559, 42 L.Ed.2d 532 (1975). The Court has recognized, however, that jurisdiction is not necessarily defeated simply because the order attacked has expired, if the underlying dispute between the parties is one “capable of repetition, yet evading review.” Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). The controversy between the parties to this case is “capable of repetition” in two senses. First, if Simants’ conviction is reversed by the Nebraska Supreme Court and a new trial ordered, the District Court may enter another restrictive order to prevent a resurgence of prejudicial publicity before Simants’ retrial. Second, the State of Nebraska is a party to this case; the Nebraska Supreme Court’s decision authorizes state prosecutors to seek restrictive orders in appropriate cases. The dispute between the State and the petitioners who cover events throughout the State is thus “capable of repetition.” Yet, if we decline to address the issues in this case on grounds of mootness, the dispute will evade review, or at least considered plenary review in this Court, since these orders are by nature short-lived. See, e. g., Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975); Sosna v. Iowa, supra; Roe v. Wade, 410 U.S. 113,125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969); Carroll v. Princess Anne, 393 U.S. 175,178-179, 89 S.Ct. 347, 350, 21 L.Ed.2d 325 (1968). We therefore conclude that this case is not moot, and proceed to the merits. Id. It is contended that the circumstances giving rise to Pisciotta’s confinement and release are not “capable of repetition.” If such be the case, then we submit the circumstances giving rise to Schiavo, Roe v. Wade, McCorkle, and Nebraska Press were equally incapable of repetition. In each instance, the underlying dispute had ended. Just as the trial of Pisciotta’s codefendants had concluded, so the pregnancy in Roe had terminated; the labor dispute in McCorkle had been resolved; and the publicity restraints in Nebraska Press had been lifted. Yet in each of these instances the Supreme Court found a capability of repetition and rejected the suggestion of mootness, proceeding to the merits of the controversy. For example, we perceive no difference between Pisciotta’s exposure to future grand jury or court proceedings and the circumstances foreseen by the Supreme Court in Nebraska Press in the event a new trial was ordered and a new gag order imposed. Indeed, we need not speculate with respect to Pisciotta’s future grand jury involvements, for the government has already subpoenaed Pisciotta once to give grand jury testimony, and has indicated an intention to call him again. Further, we are mindful that appeals may be taken by Pisciotta’s codefendants, which may result in new trial proceedings at which Pisciotta’s testimony will be required. Hence, the circumstances giving rise to Pisciotta’s confinement are at least as “capable of repetition” as those circumstances which have satisfied the Supreme Court’s mootness requirements in cases involving other interests. Even if we could not construct or project any “capability of repetition” in this case, we would nevertheless decline to dismiss Pisciotta’s appeal as moot. While in each of the instances discussed, the Supreme Court has determined that “capability of repetition” existed, we are of the view that such capability was perceived so as to satisfy the true governing consideration behind the Court’s decision — that of having review available when significant interests are at stake. We are satisfied that Pisciotta’s confinement pursuant to an order of contempt, whether or not it is capable of repetition within the exact same framework, must not escape desired review any more than should “gag orders” where the reason for the “gag” no longer exists; pregnancies, where the pregnancies have terminated; or strikes, where the dispute has been settled. Indeed, conceding the importance of the economic, First Amendment, and personal interests discussed, we believe that even more weighty and deliberate consideration should be given to instances where personal liberty has been deprived. Hence, even if the “capable of repetition” criterion could not be satisfied here, we nevertheless could not countenance dismissing Pisciotta’s appeal as moot. We are aware that Pisciotta’s confinement resulted from an order of civil contempt rather than from criminal charges which were the subject of the appeals in both St. Pierre and Sibron. However, when fundamental personal liberties are at issue and review of an order of confinement as a practical matter is not available, there is little logic and no basis for distinguishing between the character of the underlying events which have caused the defendant to be imprisoned. Compare Bursey v. United States, 466 F.2d 1059, 1088-89 (9th Cir. 1972) (appeal from contempt order under 28 U.S.C. § 1826 for refusal to testify before grand jury not moot even though the term of the grand jury expired) with United States v. Schrimsher, 493 F.2d 842, 843-44 (5th Cir. 1974) (appeal from criminal contempt order not moot even though confinement for two hours had terminated.). We reject the government’s contention that we may not review the order of March 3, 1976 because of Pisciotta’s release from custody, and we hold that the appeal from that order is not moot. III. Pisciotta claims a constitutional right not to testify, despite the grant of immunity. He argues that due regard for his Fifth Amendment rights requires reversal of the district court’s order of contempt. He bases his argument on an alleged disparity between the scope of protection guaranteed by the privilege against self-incrimination and that afforded by the immunity provided by 18 U.S.C. § 6002. (See note 1 supra). We must determine whether § 6002 immunity is coextensive with Pisciotta’s Fifth Amendment privilege or whether it results in the dilemma posed by Pisciotta which Pisciotta claims he would not confront if his Fifth Amendment privilege remained available. That dilemma, Pisciotta contends, consists of the following: if his testimony is untruthful (i.e., exculpatory as to him), he will be subject to prosecution for perjury; yet, if the testimony is truthful (i.e., inculpatory), it can be used against him to impeach his testimony at any subsequent prosecution. But § 6002 imposes no such dilemma, mandates no such choice, and, as a result, permits no such consequences. The threat of a perjury prosecution, as it is implicated in half of Pisciotta’s supposed dilemma, is real enough. In United States v. Hockenberry, 474 F.2d 247 (3d Cir. 1973), this Court held that: quite apart from any question of self incrimination, a witness who testifies before a grand jury is required and sworn to tell the truth. The grant of immunity is superimposed upon that requirement. Protection is granted against future injurious use of the incriminating- truth that the witness is required to speak, not against prosecution for or the use of any exculpatory falsehood that he may utter to avoid the required admission of wrongdoing. Hence, the immunity statute properly permits prosecution for perjury committed in an otherwise immunized statement and also the introduction in evidence of so much of the statement as is essential to establishing the corpus delicti. Id. at 249. This conclusion has recently been echoed by the Court of Appeals for the Seventh Circuit: [I]f the witness commits perjury in giving the compelled testimony, the grant of immunity will not protect him from a perjury prosecution since no immunity attaches to false testimony given pursuant to the immunity order. United States v. Patrick, 542 F.2d 381, 385 (7th Cir. 1976). Similarly, the Court of Appeals for the Second Circuit has stated that “[t]he immunity granted by the Constitution does not confer upon the witness the right to perjure himself or to withhold testimony.” United States v. Tramunti, 500 F.2d 1334, 1343 (2d Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974). Cf. Glickstein v. United States, 222 U.S. 139, 32 S.Ct. 71, 56 L.Ed. 128 (1911). We conclude that § 6002 immunity offers the witness the same protection against a prosecution for perjury that the Fifth Amendment would provide — which is to say, none at all. See In re Bonk, 527 F.2d 120, 125 (7th Cir. 1975). Pisciotta’s fear of a perjury prosecution for any untruthful statements which he might make under oath is thus well-founded. However, for his “dilemma” to move this Court to rule that § 6002 immunity does not provide the full measure of Fifth Amendment protection, he must demonstrate that his truthful immunized statements could be used against him. This he cannot do. Whatever merit Pisciotta’s argument may have had prior to 1972 was lost when the Supreme Court held in Kastigar v. United States, 406 U.S. 441, 462, 92 S.Ct. 1653, 1666, 32 L.Ed.2d 212 (1972), that: We conclude that the immunity provided by 18 U.S.C. § 6002 leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege. The immunity is therefore coextensive with the privilege and suffices to supplant it. Kastigar establishes, therefore, that use and derivative use immunity under § 6002 is a satisfactory substitute for the guaranties of the Fifth Amendment. Indeed, the Kastigar Court conceded that contumacy would be justified if only a lesser protection was offered, for “[if] the immunity granted is not as comprehensive as the protection afforded by the privilege, petitioners were justified in refusing to answer, and the judgments of contempt must be vacated.” Id. at 449, 92 S.Ct. at 1659. Here, no one claims that Pisciotta’s responses could be used in the government’s case in chief against him at a subsequent trial. Clearly, such use would contravene Kastigar, and would be exposed in a Kastigar hearing. At such a hearing, the burden upon the government to show that its evidence was derived from sources other than the immunized witness’s testimony is a heavy one. Kastigar v. United States, supra, 406 U.S. at 460, 461, 92 S.Ct. 1653; Goldberg v. United States, 472 F.2d 513 (2d Cir. 1973); In re Minkoff, 349 F.Supp. 154 (D.R.I.1972). Pisciotta’s fear — a fear which is justified in part in light of the position taken by the government — is that the government could use his immunized testimony for the purpose of impeaching him should be testify in his own defense at a subsequent trial. However, if the government could use “immunized” testimony in such a fashion, the point would be reached where a witness could, under Kastigar, have “just cause” to refuse to answer. Clearly, if a witness had invoked his Fifth Amendment privilege, the government could have no testimony available with which it might impeach his subsequent sworn statements. Were we to permit impeachment with immunized testimony, we would then be affording the immunized witness something less than his full Fifth Amendment protection. In United States v. Hockenberry, 474 F.2d 247 (3d Cir. 1973), the government urged this Court to adopt a rule permitting the use of immunized testimony “for the purpose of impeaching the immunized witness or an immunized defendant when . he chooses to testify on his own behalf.” Id. at 249 n.l. We responded that to argue . . . that the immunity statute allows the use of any truthful admission of wrongdoing made in an immunized statement to discredit the individual as a witness in a subsequent prosecution, so narrows the statutory grant of immunity as to jeopardize its adequacy as a constitutional means of requiring self incrimination. But for the grant of immunity Hockenberry would have been privileged to refuse to admit to the grand jury his wrongdoing in the execution of affidavits to obtain search warrants. And if immunity that deprived him of that privilege is to be, as constitutionally it must, co-extensive with the privilege itself, his compelled admission of wrongdoing cannot later be used to discredit his effort to defend himself against a charge of some other wrongdoing. ‘Immunity from the use of compelled testimony . prohibits the prosecutorial authorities from using the compelled testimony in any respect . . ’ Powell, J., in Kastigar v. United States, supra. 474 F.2d at 249-50. We reiterate our adherence to this principle; except as the basis for a prosecution for perjury a witness’s immunized testimony may not be used against him. Finally, we note, as we did in Hockenberry that Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), does not bear upon this discussion. Harris held that statements inadmissible in the government’s case in chief because of Miranda deficiencies could be used to impeach. Harris does not govern the use of statements obtained through a grant of immunity. Statements obtained under a grant of immunity are compelled — in essence, coerced. The compulsion, which under other circumstances would amount to a violation of Fifth Amendment rights, is permitted because of the substitution of use and derivative use immunity. Harris offers no such safeguards, and is thus restricted to cases where coercion is not a factor. The Harris Court qualified its rule permitting impeachment as follows: “Petitioner makes no claim that the statements made to the police were coerced or involuntary.” 401 U.S. at 224, 91 S.Ct. at 645. We cannot conceive of any instance in which a witness given immunity could not claim that his testimony is both coerced and involuntary. The Harris rule, therefore, does not govern the use of such testimony. IV. Pisciotta’s dilemma, then, is illusory. His testimony could be used against him only in the event of a prosecution for perjury, but in no other way and for no other reason. Pisciotta is fully protected by § 6002 immunity from having any truthful testimony he may give — even though inculpatory — used against him. Under such circumstances the district court properly ordered Pisciotta to testify after a grant of immunity, and on his refusal to testify, properly ordered him held in contempt and confined. We think the actions of the district court and the entry of its orders of March 3,1976 were fully justified. Kastigar v. United States, supra. Having concluded that the immunity granted to Pisciotta under 18 U.S.C. § 6002 afforded him protection coextensive and commensurate with his Fifth Amendment privilege and that the actions of the district court in confining Pisciotta were properly taken, we will affirm the district court’s order of March 3, 1976. . 18 U.S.C. § 6002 provides: § 6002. Immunity generally Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to— (1) a court or grand jury of the United States, (2) an agency of the United States, or (3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House, and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. . 28 U.S.C. § 1826 provides; § 1826.. Recalcitrant witnesses (a) Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No period of such confinement shall exceed the life of— (1) the court proceeding, or (2) the term of the grand jury, including extensions, before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months. . On March 15, 1976 a jury in the District Court for the Eastern District of Pennsylvania returned verdicts of guilty on all counts submitted against the three remaining defendants. . It was only after in banc briefing that Pisciotta’s post-trial motions were decided. A detailed statement of the facts giving rise to Pisciotta’s conviction and post-trial motions may be found in the district court’s unpublished memorandum and order of October 29, 1976 denying these motions. At the time of the in banc argument, Pisciotta had yet to be sentenced, and hence no appeal from the underlying conviction could have been perfected. . 392 U.S. 40, 51-52, 88 S.Ct. 1889, 1897, 20 L.Ed.2d 917 (1968). . See Fay v. Noia, 372 U.S. 391, 424, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). . The other exception to the St. Pierre rule which is made explicit in Sibron concerns the collateral legal consequences which flow from the conviction. Our disposition of the mootness issue centers on the “opportunity for review” exception. We therefore do not find it necessary to discuss in detail or rely upon the second exception as it might pertain to Pisciotta. The collateral legal consequences exception would preclude a court from holding an appeal moot where consequences (such as disbarment, impeachment, loss of political privileges, etc.) flowing from the conviction or order of confinement might be suffered by the appellant after release from custody or service of a sentence. The record before us reveals no such disabling consequences. We note, in passing, however, that Pisciotta, at the time of his indictment, was a Judge of the Court of Common Pleas of Philadelphia County. Cf. United States v. Schrimsher, 493 F.2d 842, 844 (5th Cir. 1974) (collateral consequences flowing from holding attorney in criminal contempt); Jessup v. Clark, 490 F.2d 1068, 1071 (3d Cir. 1973) (collateral consequences of criminal contempt). See also In re Ballay, 157 U.S.App.D.C. 59, 482 F.2d 648 (1973) (civil commitment for mental illness); Justin v. Jacobs, 145 U.S.App.D.C. 355, 449 F.2d 1017 (1971) (civil commitment under Sexual Psychopath Act). . The government subpoena calling Pisciotta to testify before the grand jury was quashed by the district court upon motion by Pisciotta. Although the government appealed the district court’s action, Pisciotta v. United States, No. 76-1275 (3d Cir. July 22, 1976), this Court granted the government’s own motion to dismiss the appeal as moot. The government noted its intention to subpoena Pisciotta again in its in banc brief, see Supplemental Brief for Appellee at 2, and reiterated this intention at oral argument. . We do not view the Supreme Court’s opinion in DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974), as mandating a different conclusion. In DeFunis the Court rejected the “capable of repetition yet evading review” ■ exception for two reasons. First, De-Funis, a soon:to-be-graduated law student, could never again be subjected to the alleged discrimination which had denied him admission to law school, since his graduation would assure that he would never again be applying for admission. Second, the Court speculated that the trail blazed in the lower courts by DeFunis would permit subsequent petitioners suffering the same alleged deprivation to arrive before the Court in a more timely fashion. Here, in contrast, Pisciotta can — and probably will, see note 8 supra —be called to testify again, a fact which distinguishes his case from DeFunis’. The second ground in DeFunis is equally inapposite: Pisciotta’s case reached this Court with dispatch, yet by the time it was argued the trial was completed and his confinement had ended. Nothing in the lower court proceedings here will facilitate review of future confinements of Pisciotta or of anyone else. Nor does the Supreme Court’s recent remand in Scott v. Kentucky Parole Board, 429 U.S. 60, 97 S.Ct. 342, 50 L.Ed.2d 218 (1976), control our result. The decision of the Scott majority was simply a remand to consider the mootness question; three dissenters, see id. at 60-64, 97 S.Ct. at 343-45, would have found nonmootness on the record then before the Court. . In this regard, his complaint is similar to that considered and rejected in In re Liddy, 165 U.S.App.D.C. 254, 506 F.2d 1293 (1974). . The Patrick court held, however, that inconsistent testimony given under different grants of immunity could not be the basis of an “inconsistent declaration” prosecution under 18 U.S.C. 1623(c). Introducing two inconsistent immunized statements necessarily implies using the truth of one to prove the falsity of the other — and truthful immunized statements cannot be used against the witness who gave them. . See United States v. Kelly, 464 F.2d 709 (5th Cir. 1972), and the discussion in In re Liddy, 165 U.S.App.D.C. 254, 506 F.2d 1293, 1302 (1974). . Indeed, it has recently been held that the use of such immunized testimony is prohibited not merely at trial, but at grand jury proceedings as well. United States v. Hinton, 543 F.2d 1002, 1008-09 (2d Cir. 1976). . Such a hearing is most commonly held before trial, see, e.g., United States v. Kurzer, 534 F.2d 511, 514-17 (2d Cir. 1976), although it seems clear that a determination of whether the prosecution’s evidence has been tainted may also be made when the evidence is offered or at a post-trial hearing. See United States v. DeDiego, 167 U.S.App.D.C. 252, 511 F.2d 818 (1975). . The government posits that “a court could, for example, decide that [United States v. Hockenberry, 474 F.2d 247 (3d Cir. 1973)] would not control where the immunized testimony was in direct conflict with the witness’ testimony at trial.” Supplemental Brief for Appellee at 4 n.l. . Pisciotta argues that the Second Circuit’s decision in United States v. Tramunti, 500 F.2d 1334 (2d Cir. 1974), raises the spectre that immunized testimony might be used against him. We disagree. We read Tramunti as embracing the principle that while truthful testimony can have no subsequent use under a grant of immunity, untruthful testimony is unprotected. That same principle was announced by this Court in Hockenberry, and is endorsed here. We decline to draw any further implications from Tramunti, as much of the ensuing discussion in that case came in response to the singular circumstances arising there from a discovery, made only after trial had been completed, that the grand jury testimony employed at trial had been given under a grant of immunity. See 500 F.2d at 1344-46. . See 474 F.2d at 250. 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_app_stid

01

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is an appellant. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HIGHWAY TRUCKDRIVERS AND HELPERS, LOCAL NO. 107, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, INDEPENDENT, Respondent. No. 13607. United States Court of Appeals Third Circuit. Argued Oct. 31, 1961. Decided Feb. 23, 1962. As Amended April 10, 1962. Warren M. Davison, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Atty., National Labor Relations Board, on the brief), for petitioner. Richard H. Markowitz, Philadelphia, Pa. (Paula R. Markowitz, Wilderman, Markowitz & Kirschner, Philadelphia, Pa., on the brief), for respondent. Before McLAUGHLIN, STALEY and FORMAN, Circuit Judges. STALEY, Circuit Judge. This is a secondary boycott case in which the National Labor Relations Board (“Board”) seeks enforcement of an order issued against Highway Truckdrivers and Helpers, Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent (“union”). The Board found that the union, in course of a strike, violated various provisions of the Labor Management Relations Act, 1947 (“Act”), 29 U.S.C.A. § 141 et seq., namely, § 8(b) (1) (A), by threatening and coercing certain employees of secondary employers, and by obstructing entrance to and exit from the Riss & Company, Inc. (“Riss”) terminal, and § 8(b) (4) (i) and (ii) (B) by inducing and encouraging employees of neutral employers to refuse to handle Riss freight, and restraining and coercing persons engaged in commerce with an object of forcing neutral employers to stop doing business with Riss. Riss employed a number of union members as drivers to perform local pickup and delivery services in the Philadelphia area. This operation was conducted from a Philadelphia terminal owned by persons who also held all the stock in Riss. The terminal was shared with four other freight carriers including Cartage and Terminal Corporation (“Cartage”), and Salem Express (“Salem”). On December 23, 1959, Riss notified the drivers that beginning with January 1, 1960, Cartage would perform all of Riss’ local pickup and delivery work, and on December 31, 1959, each driver was sent a termination notice. To support the § 8(b) (4) (i) and (ii) (B) findings, the Board relied first on what it called the Royce incident that took place on December 29, 1959. The record shows that twice on December 29, 1959, several men unhooked a Riss trailer that was attached to a tractor driven by George Royce, an employee of Cumberland Transport. The first unhooking took place at the Riss terminal and the second at the Pennsylvania Railroad piggyback yard in Philadelphia. The Board also relies on events that occurred at the North Penn Transfer Company terminal where on January 20, 1960, a shipment was received from Riss on interline. Thereafter, North Penn employees, who were also members of the union, refused to handle Riss freight. Lastly, the Board points to picketing of the Riss terminal beginning on December 29, 1959. The union does not challenge the Board’s conclusion that a § 8(b) (1) (A) unfair labor practice was committed. The attack is concentrated on the Board’s finding that the union violated § 8(b) (4) (i) and (ii) (B), which provide that it shall be an unfair labor practice for a union or its agents: “(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to * * transport, or otherwise handle or work on any goods * * * or to perform any services; or “(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is— ****** “(B) forcing or requiring any person to cease * * * handling, transporting, or otherwise dealing in the products of any other producer, * * * or to cease doing business with any other person * * *» More particularly, the union contends that there is no evidence in the record showing that the men who accosted Royce were acting on behalf of the union, and that the union cannot, therefore, be charged with responsibility for the incident. As to the North Penn occurrence, the union says that a refusal to handle goods is simply a form of economic coercion not involving the use of force or violence which must take place before a § 8(b) (4) (ii) violation can be found. As to the picketing, the union contends that in light of the fact that picketing has at all times been limited' to the Riss terminal and directed against Riss only, the picketing is primary in nature and protected under the Moore Dry Dock doctrine previously enunciated by the Board. Turning to the union’s responsibility for the Royce incident, Royce testified that as he entered the Riss terminal a number of men whom he recognized as Riss drivers hailed him and asked' what he was doing with a Riss trailer. After Royce said that he was delivering an empty Riss trailer to New Jersey, these same men informed him that they were on strike against Riss and ordered him to drop the trailer. The men proceeded to unhook the trailer while Royce was at a telephone calling the Salem dispatcher for further instructions. After-giving a false destination, Royce drove-back to the Pennsylvania Railroad yards where, while hooking up a Riss trailer,, he was again approached by union pickets who unhitched his trailer and ordered him to leave and not to pick up anything with a Riss name on it. At the time these events occurred, Riss had already notified its drivers that Cartage would perform local pickup and delivery services as of January 1, 1960. The Board had before it evidence that on the day-following the Royce incident, pickets representing the union appeared at the terminal and obstructed the ingress and', egress of Salem trailers which were carrying Riss freight on interline. On that same day, pickets numbering from ten to twenty also blocked the egress and ingress of other trucks using the principal gate at the Hiss terminal. These circumstantial facts, when coupled with Royce’s recognition of some of the men as being Riss employees, leads irresistibly to the conclusion that the union, through its agents, was responsible for the Royee incident. From an examination of the pertinent legislative history, we are convinced that § 8(b) (4) (ii) (B) prohibits economic sanctions against a secondary employer in the form of a refusal by a union which represents employees of both the primary and secondary employer to handle a primary employer’s goods. Section 8(b) (4) (ii) (B) was enacted as an amendment to the Act when the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”), 29 U.S.C.A. § 401 et seq., was passed. When the LMRDA left committee and was introduced in the Senate, it contained no provisions dealing with secondary boycotts. Minority members of the committee criticized this fact and recommended that § 8(b) (4) be amended to make it applicable to conduct that would “threaten, coerce or restrain any person engaged in commerce * * That is how the section now reads. Amendments to the Act were then offered on the floor of the Senate by Senator McClellan. Debate following introduction of the amendment indicates that its secondary boycott provisions were not restricted to the use of force or violence as a means of bringing pressure against the secondary employer, but included economic sanctions as well. Senator McClellan, who introduced the amendment, referred to it in debate, saying: “Fourth, the amendment covers the withholding of prospective employees from a secondary employer. I refer to a case in which I may be handling the products of a given company or manufacturer, and I have an arrangement with a union whereby it furnishes employees to me when I call upon the union to furnish them. I refer to a case where I may be under a contract and under an obligation to use the facilities of a hiring hall to get my employees from the hiring hall. The union would say to me, ‘We will not furnish you any more men, so long as you handle the products of that company.’ That is another form of secondary boycott which would be prohibited.” (Emphasis supplied.) Senator Curtis, a cosponsor of the amendment, further particularized its scope when during debate he said: “ * * * If the union, to bring pressure upon the reluctant employer, calls out on strike the employees of a different employer in order to force that employer to stop doing business with the first one, that is presently unlawful under the secondary boycott provisions of existing law. But suppose the union plays it smart. Instead of calling the strike just described, it simply goes to the second employer and says, ‘Look here; you do not want any trouble with us; stop doing business with the first employer. He is giving us trouble by not signing up with us.’ There is nothing in the present law to bar such direct pressure upon the second employer. * * “The amendment cures the above defect in existing law by making it just as unlawful to coerce second employers directly as indirectly through their employees.” The amendment was attacked during debate in the Senate largely because it was not limited to the use of force or violence. The McClellan amendment was defeated. The bill passed by the House of Representatives was introduced by Representatives Landrum and Griffin as a substitute for the committee bill. The substitute reinstated the essence of the secondary boycott provisions of the McClellan amendment. In analyzing that provision, Representative Griffin said: “The courts also have held that, while a union may not induce employees of a secondary employer to strike for one of the forbidden objects, they may threaten "the secondary employer, himself, with a strike or other economic retaliation in order to force him to cease doing business with a primary employer with whom the union has a dispute. This bill makes such coercion unlawful by the insertion of a clause 4(ii) forbidding threats or coercion against any person engaged in commerce or an industry affecting commerce.” Later, Representative Griffin again referred to the secondary boycott provision during debate and gave an example of what it was meant to cover. He said: “Fourth. If, instead of going to B’s. employees the union official goes directly to B and threatens him with labor trouble or other consequences, unless he stops dealing with Company A — the effect of the act can be technically avoided. Our substitute would close this loophole — the committee bill would not.” That provision was enacted by the House and passed by the Senate after the conference committee report was accepted. The evidence here established the type of economic coercion that the Act proscribed. The record shows that on January 20, 1960, a shipment from Riss arrived at the North Penn terminal. The terminal manager himself was forced to handle the shipment after the union steward indicated that employees would not handle Riss goods unless clearance was first obtained from the union. There is substantial evidence to support the Board’s conclusion that on the following day the union steward called and spoke to one of the union’s business agents concerning the status of Riss goods. Unchallenged evidence shows, that immediately thereafter the union steward informed the terminal manager that the employees would no longer handle Riss goods because of the union’s dispute with Riss. When a shipment arrived at the North Penn terminal on January 25, the employees refused to handle the goods. The Riss terminal constituted a common situs, i. e., a common place of operation utilized by two or more employers. A common situs situation frequently requires the courts to determine whether the picketing is primary or secondary in nature. The fine and elusive line that separates primary from secondary picketing was made bolder and darker by the Board’s decision in Sailors’ Union of the Pacific, 92 N.L.R.B. 547 (1950). The Board there set out four standards, usually referred to as the Moore Dry Dock doctrine, for determining whether such picketing is presumptively valid primary activity: (1) that the picketing be limited to times when the situs of the dispute was located on secondary premises; (2) that the primary employer be engaged in his normal business at the situs; (3) that the picketing take place reasonably close to the situs; and (4) that the picketing clearly demonstrate that the dispute was only with the primary employer. Compliance with these standards, however, at most gives the picketing only presumptive validity. Local 761, International Union of Electrical Radio & Machine Workers, A.F.L.-C.I.O. v. N. L. R. B., 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961). Even under that doctrine, the union must conduct its picketing so as to minimize the impact thereof on the secondary employer, Retail Fruit & Vegetable Clerks’ Union, 116 N.L.R.B. 856 (1956), and where, as here, the union deliberately enmeshes secondary employers and employees in the dispute, the doctrine has no application. N. L. R. B. v. International Hod Carriers Union, 285 F.2d 397 (C.A.8, 1960), cert. denied, International Hod Carriers Bldg. & Common Laborers’ Union of America, Local 1140, A.F.L.-C.I.O. v. N. L. R. B., 366 U.S. 903, 81 S.Ct. 1047, 6 L.Ed.2d 203 (1961); N. L. R. B. v. Local 294, International Brotherhood of Teamsters, 284 F.2d 887 (C.A.2, 1960); Gonzalez Chemical Industries, Inc., 128 N.L.R.B. 1352 (1960), reversed on other grounds, Teamsters, Chauffeurs, Warehousemen, etc. v. N. L. R. B., 110 U.S.App.D.C. 404, 293 F.2d 881 (1961). Rather than complying with the fourth requirement of the Moore Dry Dock doctrine, the union here, by deliberate acts, made it perfectly clear that the picketing was not limited to the primary employer. On December 30, 1959, the union’s pickets physically obstructed the ingress and egress of Salem trucks at the Riss terminal in those cases where Riss freight was being transported. "Violence erupted a few days later. One of the several acts of violence that took place on January 4,1960, involved a Cartage driver who was stopped by pickets as he was attempting to cross the picket line and told by a union steward carrying a meathook that “I’ll bring this down over your head if you try to move that truck out of this yard. I’ll get you.” The same union steward told a vice president of Cartage that he was the “son-of-a-bitch that started all of this. I’m going to get you, too.” Similar threats were made to another Cartage driver who crossed the picket line on January 7 and 11, 1960. The union makes a final point concerning the scope of the Board’s order. That order prohibited the union from inducing or encouraging any individual employed by Salem, Cartage, North Penn “or any other person” to engage in a strike in order to force those employers to cease doing business with Riss. The order also prohibits the union from threatening, coercing, or restraining Salem, Cartage, North Penn or “any other person” to force such persons to cease doing business with Riss. The union says that the evidence does not support the inclusion of the particular employei’s in the order, and that use of the phrase “any other person” is prohibited by the Supreme Court’s decision in Communications Workers of America, A.F.L.-C.I.O. v. N. L. R. B., 362 U.S. 479, 80 S.Ct. 838, 4 L.Ed.2d 896 (1960). In regard to the question before us, the Court in N. L. R. B. v. Express Publishing Co., 312 U.S. 426, 437, 61 S.Ct. 693, 700, 85 L.Ed. 930 (1941), said: “ * * * To justify an order restraining other violations it must appear that they bear some resemblance to that which the employer has committed or that danger of their commission in the future is to be anticipated from the course of his conduct in the past.” A broad order is permitted where the evidence shows the existence of a general scheme, pattern or course of conduct contemptuous of the Act. N. L. R. B. v. Local 522, Lumber Drivers, 294 F.2d 811 (C.A.3,1961). There is a strong factual basis in the record showing that the union has unlawfully interfered with the activity of employers other than Riss. That, coupled with what the Board described as the union’s obvious “proclivity to engage in unlawful secondary activity” when and where such conduct suits its purpose convinces us that the order should be enforced in its entirety. In attacking the scope of the order, the union relied heavily on N. L. R. B. v. Ochoa Fertilizer Corp., 283 F.2d 26 (C.A.1, 1960). We need only say that after argument, that case was reversed by the Supreme Court on the very point for which it was cited here. 82 S.Ct. 344 (Dec. 18, 1961). Also, Communications Workers of America v. N. L. R. B., 362 U.S. 479, 480, 80 S.Ct. 838, 840, 4 L.Ed.2d 896, is no help for, as the Court pointed out, the union there had not “engaged in violations against the employees of any employer other than Ohio Consolidated * * That, certainly, is not this case. A decree for enforcement of the order of the Board may be submitted. . 130 N.L.R.B. No. 91. . S.Rep. No. 187, 2 U.S.Code Cong. & Adm. News, 86th Cong., 1st Sess.1959, p. 2318. . Id. at 2318, 2383. . 105 Cong-Rec., 86th Cong., 1st Sess., 1959, p. 6667. . Id. at 6670. . Id. at 6638-6671. . Id. at 6671. . Id. at 14347. . Id. at 14347. . Id. at 15532. . Id. at 17919-17920. . To support this conclusion, the Board cites several recent cases before it involving conduct of a similar nature by the same union. Highway Truck Drivers, Local 107, 115 N.L.R.B. 1184 (1956), and Local 107, Highway Truck Drivers, 40 L.R.R.M. 1270. Subsequent to the order before us, the Board decided Highway Truck Drivers, Local 107, 131 N.L.R.B. No. 117, which also supports its conclusion. Question: What is the state of the first listed state or local government agency that is an appellant? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:

sc_petitioner

029

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. ADAMS v. TEXAS No. 79-5175. Argued March 24, 1980 Decided June 25, 1980 White, J., delivered the opinion of the Court, in which Brennan, Stewart, Blackmun, Powell, and Stevens, JJ., joined. Brennan, J., filed a concurring opinion, post, p. 51. Burger, C. J., concurred in the judgment. Marshall, J., filed an opinion concurring in the judgment, post, p. 51. Behnquist, J., filed a dissenting opinion, post, p. 52. Melvyn Carson Bruder argued the cause for petitioner. With him on the brief were J. Stephen Cooper and George A. Preston. Douglas M. Becker, Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Mark White, Attorney General, John W. Fainter, Jr., First Assistant Attorney General, Ted L. Hartley, Executive Assistant Attorney General, and W. Barton Boling, Assistant Attorney General. Jack Greenberg, James M. Nabrit III, Joel Berger, John Charles Boger, and Anthony G. Amsterdam filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging reversal. Mr. Justice White delivered the opinion of the Court. This capital case presents the question whether Texas contravened the Sixth and Fourteenth Amendments as construed and applied in Witherspoon v. Illinois, 391 U. S. 510 (1968), when it excluded members of the venire from jury service because they were unable to take an oath that the mandatory penalty of death or imprisonment for life would not “affect [their] deliberations on any issue of fact.” We hold that there were exclusions that were inconsistent with Witherspoon, and we therefore reverse the sentence of death imposed on the petitioner. I Trials for capital offenses in Texas are conducted in a two-phase proceeding. See Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon Supp. 1979). In the first phase, the jury considers the question of the defendant’s guilt or innocence. If the jury finds the defendant guilty of a capital offense, the trial court holds a separate sentencing proceeding at which a wide range of additional evidence in mitigation or aggravation is admissible. The jury is then required to answer the following questions based on evidence adduced during either phase of the trial: “(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; “(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and “(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.” Art. 37.071 (b). If the jury finds beyond a reasonable doubt that the answer to each of these questions is “Yes,” the court is required to impose a sentence of death. If the jury finds that the answer to any of the three questions is “No,” the court imposes a sentence of life imprisonment. Arts. 37.071 (c), (e). The petitioner in this case was charged with the capital offense of murdering a peace officer. During voir dire examination of individual prospective jurors, the prosecutor, and sometimes the trial judge, intensively inquired as to whether their attitudes about the death penalty permitted them to take the oath set forth in Tex. Penal Code Ann. § 12.31 (b) (1974). Section 12.31 (b) provides as follows: “Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.” Typically, the prospective juror was first advised that the State was seeking the death penalty and asked to state his general views on the subject, which were sometimes explored in considerable depth. He was then informed in detail of the special procedure used by Texas in capital cases, including in particular the fact that “Yes” answers to the three punishment questions would automatically result in the trial judge’s imposing the death sentence. Finally, he was asked whether he could state under oath, as required by § 12.31 (b), that the mandatory penalty of death or imprisonment for life would not affect his deliberations on any issue of fact. On the State’s submission and over petitioner’s objections, the trial judge excused a number of prospective jurors who were unwilling or unable to take the § 12.31 (b) oath. The jury selected under this procedure convicted the petitioner of the charged offense and answered the statutory questions affirmatively at the punishment phase, thus causing the trial judge to impose the death sentence as required by Art. 37.071 (e). On appeal, the petitioner argued that prospective jurors had been excluded in violation of this Court’s decision in Witherspoon v. Illinois, supra. The Texas Court of Criminal Appeals rejected the contention on the authority of its previous cases, which had “consistently held that the statutory scheme for the selection of jurors in capital cases in. Texas, and in particular the application of [§ 12.31 (b)] to the punishment issues, comports with the constitutional requirements of Witherspoon.” 577 S. W. 2d 717, 728 (1979). We granted the petition for a writ of certiorari, 444 U. S. 990 (1979), limited to the following questions: “(1) Is the doctrine of Witherspoon v. Illinois, 391 U. S. 510, applicable to the bifurcated procedure employed by Texas in capital cases? (2) If so, did the exclusion from jury service in the present case of prospective jurors pursuant to Texas Penal Code § 12.31 (b) violate the doctrine of Witherspoon v. Illinois, supra?” II A Witherspoon involved a state procedure for selecting juries in capital cases, where the jury did the sentencing and had complete discretion as to whether the death penalty should be imposed. In this context, the Court held that a State may not constitutionally execute a death sentence imposed by a jury culled of all those who revealed during voir dire examination that they had conscientious scruples against or were otherwise opposed to capital punishment. The State was held to have no valid interest in such a broad-based rule of exclusion, since “[a] man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him . . . and can thus obey the oath he takes as a juror.” Witherspoon v. Illinois, 391 U. S., at 519. The defendant, on the other hand, was seriously prejudiced by the State’s practice. The jury which sentenced him to death fell “woefully short of that impartiality to which the petitioner was entitled” on the issue of punishment, id., at 518. By excluding all those who opposed capital punishment, the State “crossed the line of neutrality” and “produced a jury uncommonly willing to condemn a man to die.” Id., at 520, 521. The Court recognized that the State might well have power to exclude jurors on grounds more narrowly drawn: “[Njothing we say today bears .upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt ” Id., at 522-523, n. 21 (emphasis in original). This statement seems clearly designed to accommodate the State’s legitimate interest in obtaining jurors who could follow their instructions and obey their oaths. For example, a juror would no doubt violate his oath if he were not impartial on the question of guilt. Similarly, the Illinois law in effect at the time Witherspoon was decided required the jury at least to consider the death penalty, although it accorded the jury absolute discretion as to whether or not to impose it. A juror wholly unable even to consider imposing the death penalty, no matter what the facts of a given case, would clearly be unable to follow the law of Illinois in assessing punishment. . In Boulden v. Holman, 394 U. S. 478, 483-484 (1969), we again emphasized the State’s legitimate interest in obtaining jurors able to follow the law: “[Ijt is entirely possible that a person who has a ‘fixed opinion against’ or who does not ‘believe in’ capital punishment might nevertheless be perfectly able as a juror to abide by existing law — to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.” And in Lockett v. Ohio, 438 U. S. 586, 595-596 (1978), we upheld against a Witherspoon challenge the exclusion of several jurors who were unable to respond affirmatively to the following question: “[D]o you feel that you could take an oath to well and truely [sic] try this case . . . and follow the law, or is your conviction so strong that you cannot take an oath, knowing that a possibility exists in regard to capital punishment?” This line of cases establishes the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court. B We have little difficulty in concluding. that this rule applies to the bifurcated procedure employed by Texas in capital cases. This procedure differs from the Illinois statute in effect at the time Witherspoon was decided in three principal ways: (1) the Witherspoon jury assessed punishment at the same time as it rendered its verdict, whereas in Texas the jury considers punishment in a subsequent penalty proceeding; (2) the Witherspoon jury was given unfettered discretion to impose the death sentence or not, whereas the discretion of a Texas jury is circumscribed by the requirement that it impartially answer the statutory questions; and (3) the Witherspoon jury directly imposed the death sentence, whereas Texas juries merely give answers to the statutory questions, which in turn determine the sentence pronounced by the trial judge. Because of these differences, the jury plays a somewhat more limited role in Texas than it did in Illinois. If the juror is to obey his oath and follow the law of Texas, he must be willing not only to accept that in certain circumstances death is an acceptable penalty but also to answer the statutory questions without conscious distortion or bias. The State does not violate the Witherspoon doctrine when it excludes prospective jurors who are unable or unwilling to address the penalty questions with this degree of impartiality. Nevertheless, jurors in Texas must determine whether the evidence presented by the State convinces them beyond reasonable doubt that each of the three questions put to them must be answered in the affirmative. In doing so, they must consider both aggravating and mitigating circumstances, whether appearing in the evidence presented at the trial on guilt or innocence or during the sentencing proceedings. Jurors will characteristically know that affirmative answers to the questions will result in the automatic imposition of the death penalty, Hovila v. State, 532 S. W. 2d 293, 294 (Tex. Crim. App. 1975), and each of the jurors whose exclusion is challenged by petitioner was so informed. In essence, Texas juries must be allowed to consider “on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.” Jurek v. Texas, 428 U. S. 262, 271 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). This process is not an exact science, and the jurors under the Texas bifurcated procedure unavoidably exercise a range of judgment and discretion while remaining true to their instructions and their oaths. With these considerations in mind, it is apparent that a Texas juror’s views about the death penalty might influence the manner in which he performs his role but without exceeding the “guided jury discretion,” 577 S. W. 2d, at 730, permitted him under Texas law. In such circumstances, he could not be excluded consistently with Witherspoon. Exclusions under § 12.31 (b), like other exclusions, must be examined in this light. C The State urges that Witherspoon and § 12.31 (b) may coexist as separate and independent bases for excluding jurors in Texas and that exclusion under the statute is consistent with the Sixth and Fourteenth Amendments as construed in Witherspoon. Brief for Respondent 48. It is the State’s position that even if some jurors in the present case were excluded on grounds broader than that permitted under' Witherspoon, the exclusion was nevertheless proper under § 12.31 (b). The State’s argument is consistent with the holdings of decisions in the Texas Court of Criminal Appeals which have considered the relationship between Witherspoon and § 12.31 (b). The argument, such as it is, is unpersuasive. As an initial matter, it is clear beyond peradventure that Witherspoon is not a ground for challenging any prospective juror. It is rather a limitation on the State’s power to exclude: if prospective jurors are barred from jury service because of their views about capital punishment on “any broader basis” than inability to follow the law or abide by their oaths, the death sentence cannot be carried out. Witherspoon v. Illinois, 391 U. S., at 522, n. 21. While this point may seem too obvious to bear repetition, it is apparent from their frequent references to Witherspoon as a ground for “disqualifying” prospective jurors that the State, and the Texas Court of Criminal Appeals, might have fallen into the error of assuming that Witherspoon and § 12.31 (b) are both grounds for exclusion, so that there is no conflict if § 12.31 (b) excludes prospective jurors that Witherspoon does not. Nor do we agree with the State’s argument that because it has a different origin and purpose § 12.31 (b) cannot and will not lead to exclusions forbidden by Witherspoon. Unlike grounds for exclusion having nothing to do with capital punishment, such as personal bias, ill health, financial hardship, or peremptory challenges, § 12.31 (b) focuses the inquiry directly on the prospective juror’s beliefs about the death penalty, and hence clearly falls within the scope of the Wither-spoon doctrine. The State could, consistently with Wither-spoon, use § 12.31 (b) to exclude prospective jurors whose views on capital punishment are such as to make them unable to follow the law or obey their oaths. But the use of § 12.31 (b) to exclude jurors on broader grounds based on their opinions concerning the death penalty is impermissible. Finally, we cannot agree that § 12.31 (b) is “neutral” with respect to the death penalty since under that section the defendant may challenge jurors who state that their views in favor of the death penalty will affect their deliberations on fact issues. Despite the hypothetical existence of the juror who believes literally in the Biblical admonition “an eye for an eye,” see Witherspoon v. Illinois, supra, at 536 (Black, J., dissenting), it is undeniable, and the State does not seriously dispute, that such jurors will be few indeed as compared with those excluded because of scruples against capital punishment. The appearance of neutrality created by the theoretical availability of § 12.31 (b) as a defense challenge is not sufficiently substantial to take the statute out of the ambit of Witherspoon. Ill Based on our own examination of the record, we have concluded that § 12.31 (b) was applied in this case to exclude prospective jurors on grounds impermissible under Wither-spoon and related cases. As employed here, the touchstone of the inquiry under § 12.31 (b) was not whether putative jurors could and would follow their instructions and answer the posited questions in the affirmative if they honestly believed the evidence warranted it beyond reasonable doubt. Rather, the touchstone was whether the fact that the imposition of the death penalty would follow automatically from affirmative answers to the questions would have any effect at all on the jurors’ performance of their duties. Such a test could, and did, exclude jurors who stated that they would be “affected” by the possibility of the death penalty, but who apparently meant only that the potentially lethal consequences of their decision would invest their deliberations with greater seriousness and gravity or would involve them emotionally. Others were excluded only because they were unable positively to state whether or not their deliberations would in any way be “affected.” But neither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey their oaths, regardless of their feelings about the death penalty. The grounds for excluding these jurors were consequently insufficient under the Sixth and Fourteenth Amendments. Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law. We repeat that the State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths. But in the present case Texas has applied § 12.31 (b) to exclude jurors whose only fault was to take their responsibilities with special seriousness or to acknowledge honestly that they might or might not be affected. It does not appear in the record before us that these individuals were so irrevocably opposed to capital punishment as to frustrate the State’s legitimate efforts to administer its constitutionally valid death penalty scheme. Accordingly, the Constitution disentitles the -State to execute a sentence of death imposed by a jury from which such prospective jurors have been excluded. The judgment of the Texas Court of Criminal Appeals is consequently reversed to the extent that it sustains the imposition of the death penalty. So ordered. The Chief Justice concurs in the judgment. Under Tex. Penal Code Ann. § 19.03 (a) (1) (1974), whoever “murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman” is guilty of a capital felony. Texas also authorizes the death penalty for four other offenses: murder committed in the course of kidnaping, burglary, robbery, forcible rape, or arson; murder committed for remuneration; murder committed while escaping or attempting to escape from a penal institution; and murder of a prison employee by a prison inmate. § 19.03. Under the current Texas capital punishment scheme, the jury’s discretion over sentencing is limited both by § 19.03, which authorizes the death penalty for only a small class of aggravated crimes, and by Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon Supp. 1979), which mandates a sentence of death if, but only if, the jury answers “Yes” to each of the statutory penalty questions. This system was adopted in response to the Court’s judgment in Branch v. Texas, decided together with Furman v. Georgia, 408 U. S. 238 (1972), which struck down a statute giving the jury absolute discretion whether to impose the death penalty or not. The Court upheld the revised Texas capital punishment scheme in Jurek v. Texas, 428 U. S. 262 (1976). In Burns v. Estelle, 592 F. 2d 1297 (1979), a panel of the Court of Appeals for the Fifth Circuit found that the application of Tex. Penal Code Ann. § 12.31 (b) (1974) to the facts of that case violated Wither-spoon. The en bane Fifth Circuit has since set the case for rehearing en banc. 598 F. 2d 1016 (1979). The court held oral argument on January 8, 1980, but has as yet issued no decision. In Davis v. Georgia, 429 U. S. 122 (1976), the Court applied the Witherspoon doctrine to a case arising under a death penalty scheme similar in some respects to the current Texas system. Petitioner and amicus suggest that Davis conclusively establishes the applicability of Witherspoon to the present case. We do not treat the question as foreclosed, however, because the issue was not explicitly raised in that case. Even the State concedes that Witherspoon “applies” to the Texas system. Brief for Respondent 36-48. The State suggests that this proposition is questionable as a matter of “logic,” but agrees that Texas experience and case law conclusively demonstrate Witherspoon’s applicability. The Texas Court of Criminal Appeals has consistently held that Witherspoon is “alive and well” in that State. E. g., Woodkins v. State, 542 S. W. 2d 855, 862 (1976), cert. denied, 431 U. S. 960 (1977); Burns v. State, 556 S. W. 2d 270, 275, cert. denied, 434 U. S. 935 (1977); Brock v. State, 556 S. W. 2d 309, 312, cert. denied, 434 U. S. 1002 (1977); Whitmore v. State, 570 S. W. 2d 889, 893 (1976). E. g., Moore v. State, 542 S. W. 2d 664, 672 (1976), cert. denied, 431 U. S. 949 (1977); Woodkins v. State, supra, at 862; Shippy v. State, 556 S. W. 2d 246, 251, cert. denied, 434 U. S. 935 (1977); Burns v. State, supra, at 275-276; Freeman v. State, 556 S. W. 2d 287, 297-298 (1977), cert. denied, 434 U. S. 1088 (1978); Brock v. State, supra, at 313; Hughes v. State, 562 S. W. 2d 857, 859-861, cert. denied, 439 U. S. 903 (1978); Hughes v. State, 563 S. W. 2d 581, 583 (1978), cert. denied, 440 U. S. 950 (1979) ; Bodde v. State, 568 S. W. 2d 344, 348-349 (1978), cert. denied, 440 U. S. 968 (1979); Whitmore v. State, supra, at 893; Garcia v. State, 581 S. W. 2d 168, 174-175 (1979), cert. pending, No. 79-5464; Burks v. State, 583 S. W. 2d 389, 393-394 (1979), cert. pending, No. 79-5533. E. g., Brief for Respondent 34, 42, 48; Moore v. State, supra, at 672; Brock v. State, supra, at 313; Hughes v. State, 562 S. W. 2d, at 860; Hughes v. State, 563 S. W. 2d, at 586; Chambers v. State, 568 S. W. 2d 313, 320 (1978), cert. denied, 440 U. S. 928 (1979); Bodde v. State, supra, at 348; Garcia v. State, supra, at 175. Prospective jurors Mahon, Jenson, and Ferguson fell into this category. As Jenson said at one point during his voir dire examination: “Well, I think it probably would [affect my deliberations] because afterall [sic], you’re talking about a man’s life here. You definitely don’t want to take it lightly.” Tr. of Voir Dire 367. Prospective jurors Coyle, White, McDonald, and Riddle were excluded on this ground. Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:

sc_decisiondirection

A

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. MARSTON et al. v. LEWIS et al. No. 72-899. Decided March 19, 1973 Per Curiam. Fourteen county recorders and other public officials of Arizona appeal from a judgment of a three-judge district court holding the State’s 50-day durational voter residency requirement and its 50-day voter registration requirement unconstitutional under the decision in Dunn v. Blumstein, 405 U. S. 330 (1972). A permanent injunction was entered against enforcement of these or any other greater-than-30-day residency and registration requirements in any election held after November 1972. Appellants do not seek review of the District Court’s judgment insofar as it enjoins application of the 50-day requirements in presidential elections. See Voting Rights Act Amendments of 1970, 84 Stat. 316, 42 U. S. C. § 1973aa-l. Appellants assert, however, that the requirements, as applied to special, primary, or general elections involving state and local officials, are supported by sufficiently strong local interests to pass constitutional muster. We agree and reverse. In Dunn v. Blumstein, we struck down Tennessee’s durational voter residency requirement of one year in the State and three months in the county. We recognized that a person does not have a federal constitutional right to walk up to a voting place on election day and demand a ballot. States have valid and sufficient interests in providing for some period of time — prior to an election — in order to prepare adequate voter records and protect its electoral processes from possible frauds. A year, or even three months, was found too long, particularly in the context of “the judgment of the Tennessee lawmakers,” who had set “the cutoff point for registration [at] 30 days before an election . . . .” 405 U. S., at 349. The Arizona scheme, however, stands in a different light. The durational residency requirement is only 50 days, not a year or even three months. Moreover, unlike Tennessee’s, the Arizona requirement is tied to the closing of the State’s registration process at 50 days prior to elections and reflects a state legislative judgment that the period is necessary to achieve the State’s legitimate, goals. We accept that judgment, particularly in light of the realities of Arizona’s registration and voting procedures. Those procedures, apparently first adopted during the Populist Era, rely on a “massive” volunteer deputy registrar system. See Ariz. Rev. Stat. Ann. § 16-141. According to appellants’ testimony, although these volunteers make registration convenient for voters, they average 1.13 mistakes per voter registration and the county recorder must correct those mistakes before certifying to the “completeness and correctness” of each precinct register. Ariz. Rev. Stat. Ann. § 16-155. The District Court itself noted that there were estimates that “in Maricopa County alone, some 4,400 registered voters might be denied the right to vote if the county voter list is in error by only one percent.” An additional complicating factor in Arizona registration procedures is the State’s fall primary system. The uncontradicted testimony demonstrates that in the weeks preceding the deadline for registration in general elections — a period marked by a curve toward the “peak” in terms of the registration affidavits received — county recorders and their staffs are unable to process the incoming affidavits because of their work in the fall primaries. It is only after the primaries are over that the officials can return to the accumulated backlog of registration affidavits and undertake to process them in accordance with applicable statutory requirements. On the basis of the evidence before the District Court, it is clear that the State has demonstrated that the 50-day voter registration cutoff (for election of state and local officials) is necessary to permit preparation of accurate voter lists. We said in Dunn v. Blumstein that “[f]ixing a constitutionally acceptable period is surely a matter of degree. It is sufficient to note here that 30 days appears to be an ample period of time for the State to complete whatever administrative tasks are necessary to prevent fraud — and a year, or three months, too much.” 405 U. S., at 348. In the present case, we are confronted with a recent and amply justifiable legislative judgment that 50 days rather than 30 is necessary to promote the State’s important interest in accurate voter lists. The Constitution is not so rigid that that determination and others like it may not stand. The judgment of the District Court, insofar as it has been appealed from, is Reversed. The requirements appear, respectively, at Ariz. Rev. Stat. Ann. §§ 16-101 (3) and 16-107. These provisions were enacted after our decision in Dunn v. Blumstein. Appellees are a deputy registrar in Maricopa County and a resident of Maricopa County. Section 1973aa-l withstood constitutional attack in Oregon v. Mitchell, 400 U. S. 112 (1970). Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspecifiable Answer:

songer_typeiss

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. UNITED STATES of America, Appellee, v. Frank DEL PURGATORIO, Appellant. No. 290, Docket 32896. United States Court of Appeals Second Circuit. Argued Jan. 8, 1969. Decided May 28, 1969. Herbert S. Siegal, New York City, for appellant. James D. Zirin, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, New York City, and Lars I. Kul-leseid, Asst. U. S. Atty., on the brief), for appellee. Before LUMBARD, Chief Judge, MOORE and FRIENDLY, Circuit Judges. MOORE, Circuit Judge: Frank Del Purgatorio (appellant) appeals from a judgment of conviction by jury verdict. He was tried on only two counts (Counts 19 and 24) of an indictment containing 37 counts against 17 defendants. With him was tried Jose Marrero charged with conspiracy (Count 19) and with the possession (Count 23) of merchandise stolen pursuant to the Count 19 conspiracy. Count 19 alleged a conspiracy commencing in July 1964; Count 24 a conspiracy commencing in September 1964; each continuing to the filing of the indictment (July 1965). Appellant was convicted on both Counts 19 and 24; Marrero was acquitted on Count 19 and convicted on Count 23. Marrero does not appeal. Appellant asserts five points of error, (I) inadequate evidence of guilt, requiring the granting of the motion for acquittal; (II) introduction of testimony of Frances Wieseltier, an unmarried lady being kept by appellant; (III) introduction of a conversation between appellant and a co-conspirator antedating the conspiracies by almost a year; (IY) introduction during the Government’s direct examination of the co-conspirator that he had pleaded guilty; and (V) the joint trial with Marrero. The evidence was sufficient for jury resolution, the testimony objected to properly received; and the joint trial justified. Therefore, the judgment of conviction is affirmed. The Indictment Count 19 in substance charged appellant, Betancourt, Marrero and four others with a conspiracy to steal goods from motortrucks in interstate commerce and to have such goods in their possession. 18 U.S.C. § 659. The conspiracy was alleged to have commenced in July 1964. Count 24 charged appellant, Betan-court and two others, plus a co-conspirator not indicted, with the same unlawful activities. Count 23 involved only Marrero and was for the substantive offense of unlawful possession. I. The Evidence The appellant contends that the evidence of two isolated sales is insufficient as a matter of law to sustain the convictions of conspiracy. The testimony and evidence at trial disclosed the following facts about the alleged conspiracies. In late 1963 appellant purchased some stolen children’s clothes from Betancourt, who was a hijacker of merchandise. At this time appellant indicated to Betan-court that he was interested in any future transaction and gave Betancourt a telephone number (the “DA 8” number) to call when he had more goods to sell. In July 1964 Betancourt and an accomplice hijacked a truck in interstate commerce and the same day drove it to a store in Manhattan where they tried to sell its contents. These efforts proved unsuccessful. After storing the goods in New Jersey, the next day Betancourt called appellant at the number appellant had given him in late 1963 and inquired whether he was interested in purchasing some merchandise. Appellant expressed interest and thereafter purchased goods valued at approximately $400, paying Betancourt $90. Marrero also purchased $600 worth of goods from the same hijacking for $160. Some of the stolen clothing was discovered in Marrero’s store in January 1965, and Marrero admitted that he had purchased this clothing from Betancourt. These facts constituted the basis for Count 19. In September 1964 Betancourt and a different accomplice were successful in hijacking another truck in interstate commerce and in due course contacted appellant at the “DA 8” telephone number he had called in July. Appellant again purchased $400 worth of merchandise, this time paying $96. These facts constituted the basis for Count 24. ■ Although appellant asserts that there were only two isolated purchases, it is apparent that he knowingly associated himself with a hijacking operation which involved “fences” other than himself. Moreover, contact and tentative arrangements were made prior to any of the hijackings. The conversation in 1963 when appellant expressed his desire to purchase stolen goods and arrangements were made on a telephone number to be used so that appellant could be contacted when loot was available were essential parts of the successful operation of the conspiracy. Thus the jury had ample basis for finding that appellant was involved in an operation going beyond two isolated purchases of stolen merchandise. II. The Testimony of Frances Wiesel-tier Appellant contends that the testimony of his mistress, Frances Wie-seltier, was offered by the Government because he had a meretricious relationship with her and “for the sole purpose” of disparaging his character at a time when his character was not in issue. However, the Government asserts that this contention is frivolous because her “testimony was highly probative corroboration of Betancourt’s story that [appellant] had told [him] to contact him by means of the ‘DA 8’ number.” According to Wieseltier’s testimony, the “DA 8” number belonged to her mother with whom she and appellant visited frequently in 1964. The importance of this telephone number was underscored when on cross-examination appellant admitted receiving telephone messages at the “DA 8” number during 1964. Yet appellant denied ever having purchased anything from Betancourt or ever having given him the “DA 8” number to call when he had goods to sell. The probative value of the Wieseltier testimony, therefore, far outweighed the possible prejudice to appellant which might arise as to the nature of his relationship with the witness. United States v. Kompinski, 373 F.2d 429, 432 (2d Cir. 1967). Moreover, no objection was made at trial and appellant is precluded from raising it on appeal. United States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965), cert. denied 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). III. Introduction of a Conversation Antedating the Conspiracies Appellant asserts that it was prejudicial error to admit testimony of the conversation between Betancourt and appellant which occurred in late 1963 when he was alleged to have given the “DA 8” number to Betancourt. Appellant claims that such conversation took place before the conspiracies charged in the indictment and “was far too remote in time.” While it may have been better had the indictment charged a single conspiracy beginning in late 1963, the conversation was nonetheless admissible because it was relevant to show the beginning of appellant’s involvement in the criminal enterprise and his state of mind at the time. United States v. Compagna, 146 F.2d 524, 530 (2d Cir.), cert. denied 324 U.S. 867, 65 S.Ct. 912, 89 L.Ed. 1422 (1944), reh. denied 325 U.S. 892, 65 S.Ct. 1084, 89 L.Ed. 2004 (1945); cf. United States v. Kennedy, 291 F.2d 457, 459 (2d Cir. 1961). Moreover, the conversation in 1963 was relevant to the 1964 conspiracies because of the reference to the “DA 8” telephone number, as an explanation of the number’s origin and significance. IV. Introduction by the Government of Testimony by Co-conspirators That They Had Pleaded Guilty to the Conspiracy Charge The appellant contends, without citing authority, that the Government’s eliciting from Betancourt and one of his accomplices that they had already pleaded guilty to the conspiracy counts on which appellant was being tried, and that they were then awaiting sentence, denied him due process of law. Betancourt testified that he had pleaded guilty to Counts 19 and 24 and his accomplice, Pizzaro, testified that he had also pleaded guilty, but only to Count 19. In addition, each disclosed that they were presently awaiting sentence. We have held, however, that the Government on direct examination may bring out information damaging to its witnesses’ credibility, including evidence of their criminal records, provided the jury is cautioned that the testimony is not evidence of the defendant’s guilt. United States v. Graziane, 376 F.2d 258 (2d Cir. 1967); United States v. Freeman, 302 F.2d 347 (2d Cir. 1962), cert. den. 375 U.S. 958, 84 S.Ct. 448, 11 L.Ed. 2d 316 (1963). This is to prevent the defense from creating a misleading impression, or the jurors from thinking, that the Government is seeking to keep something from the jury. In the instant case, there were two limiting instructions given by the trial court, and we hold that these adequately prevented any possible prejudice to the defendant. V. Joinder of Appellant and Co-defendant Marrero Lastly, appellant contends, for the first time on appeal, that joinder of co-defendant Marrero denied him a fair trial. No motion for a severance, mistrial or other objection to the joinder was made in the Court below. The original indictment named seventeen defendants and, on July 30, 1968, the Government moved to sever all counts except 19, 23 and 24. Appellant and his counsel, present in court at the time, raised no objection either then or during trial as to the severance and joinder with Marrero. Appellant and Marrero were charged as co-conspirators in Count 19 relating to the July conspiracy. Their joinder was therefore proper. Clearly there was sufficient evidence for the jury to conclude that both Marrero and appellant knew that Betancourt had more to sell than each was buying for his own purposes and that other “fences” were essential for the successful disposition of the hijacked merchandise. The appellant contends that cartons of clothing seized in Marrero’s store and introduced in evidence were “prominently displayed before the jury,” although there was no connection between appellant and the cartons found in Marrero’s possession. However, this evidence was admitted solely against Marrero on Count 23 and not against appellant. This was made amply clear to the jury by the trial court at the time the evidence was admitted. Because of the simplicity of the facts and the clear instructions of the trial court, it cannot be successfully contended that the jury could have been confused as to the purpose for which the evidence was introduced or that, on that basis, appellant should have been severed from Marrero. Furthermore, no objection to joinder was made below and such an objection on appeal is foreclosed. United States v. Indiviglio, supra. The judgment of conviction is affirmed. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:

songer_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 REED v. UNITED STATES. No. 8128. United States Court of Appeals for the District of Columbia. Submitted May 11, 1042. Decided June 1, 1942. Otho D. Branson, of Washington, D. C., for appellant. Edward M. Curran, U. S. Atty., and John C. Conliff, Jr., and Charles B. Murray, Asst. U. S. Attys., all of Washington, D. C., for appellee. Before GRONER, Chief Justice, and ED-GERTON and RUTLEDGE, Associate Justices. PER CURIAM. Appellant was indicted, tried and convicted of stealing from the person of one David E. Williams a small sum of money. He was sentenced to the penitentiary for a period of from two to six years. At the trial defendant produced no witnesses and reserved no exceptions. His trial counsel has filed an affidavit in which he informs us that the case was submitted to the jury on the single question whether the defendant did “snatch from the hand of the complaining witness, American currency in the amount of two dollars”; that as attorney for the defendant he attempted to secure interviews with such witnesses as were available and was unable to find any who would testify in defendant’s behalf. After the appeal, it being represented to us that appellant’s former counsel had withdrawn, we requested the trial court to appoint a member of the bar of this court to represent him on appeal. At the call of the case we were informed by present counsel that from the interviews and inspection of the record the only possible error of which appellant could complain was the failure of trial counsel to subpoena witnesses who appellant contends would have testified on his behalf. Counsel, therefore, took the names of witnesses furnished by appellant and had subpoenas issued for their appearance before the District Attorney on a given date, but on that date only two of eight were found and served, and both asserted they had no knowledge of the offense or the circumstances under which it occurred. Counsel informs us he knows of no ground on which the appeal can be sustained. In this state of the record, and in view also of the fact that the evidence for the government was not stenographically reported and is not contained in the record, we have no alternative but to affirm the judgment. Affirmed. 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:

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. TRAILMOBILE COMPANY et al. v. WHIRLS. No. 85. Argued December 19,1946. — Decided April 14, 1947. Philip J. Schneider argued the cause for the Trail-mobile Company, petitioner. With him on the brief was Morison R. Waite. Sol Goodman and Ernest Goodman argued the cause and filed a brief for the International Union, United Automobile, Aircraft & Agricultural Workers of America— C. I. 0., Local No. 392, petitioner. Frederick Bernays Wiener argued the cause for respondent. With him on the brief were Acting Solicitor General Washington, Assistant Attorney General Sonnett, Paul A. Sweeney, Oscar H. Davis and Cecelia H. Goetz. Frank L. Mulholland, Clarence M. Mulholland and Willard H. McEwen filed a brief for the Railway Labor Executives’ Association, as amicus curiae, urging reversal. Mr. Justice Rutledge delivered the opinion of the Court. This case, like Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275, presents a problem in the seniority standing of a reemployed veteran. It arises under § 8 of the Selective Training and Service Act of 1940. The Fishgold case held that under the Act a veteran is entitled to be restored to his former position plus seniority which would have accumulated but for his induction into the armed forces. Here the question concerns the duration of the veteran’s restored statutory seniority standing. The petitioners maintain that it ends with the first year of his reemployment. Respondent’s position is that it lasts as long as the employment continues. A suggestion has also been made that occurrences taking place since the decision in the Circuit Court of Appeals may have rendered the cause moot. The case is an aftermath of a general controversy over seniority rights which arose among the employees of two corporations following their consolidation on January 1, 1944. Because of the relation of the general controversy to this litigation a detailed statement of the facts becomes necessary. Prior to their consolidation the Highland Body Manufacturing Company had been a wholly owned subsidiary of the petitioner, the Trailmobile Company. The two corporations manufactured the same commodities in separate plants in Cincinnati, Ohio. During 1943 under the plan of consolidation the supplies, equipment and personnel of Highland were transferred gradually to the plant of Trailmobile. It took over the assets and business of Highland and assumed all its obligations. The employees of Highland were transferred to the payroll of Trailmobile as of January 1, 1944, when the consolidation became fully effective. The employees of both companies had been affiliated with the American Federation of Labor. 51 N. L. R. B. 1106, 1108. At the time of the consolidation the Highland group, including respondent, claimed seniority with Trailmobile as of the dates of their employment by Highland. The former Trailmobile employees opposed this, maintaining that the Highland personnel should be considered as new employees of Trailmobile, with seniority dating only from January 1, 1944. This dispute was submitted to national representatives of the A. F. of L. They decided in favor of the Highland group. The former Trailmobile employees were dissatisfied with this decision. They outnumbered the Highland claimants about ten to one. Accordingly, reorganizing as a unit of the Congress of Industrial Organizations, they requested recognition as the exclusive bargaining agent of Trailmobile’s employees, including the Highland transferees. An election was held under the auspices of the National Labor Relations Board, in which the new C. I. 0. local was chosen as bargaining representative for a unit composed of both groups. Trailmobile accordingly negotiated with the C. I. 0. and in July, 1944, a collective bargaining agreement was concluded, effective as of June 21,1944. It provided that the seniority rights of former Highland employees should be fixed as of January 1, 1944, regardless of the dates of their original employment by Highland. Respondent Whirls had been in Highland’s employ from 1935 to 1942, when he entered military service. He was honorably discharged and returned to his work with Highland in May, 1943. He was thus among the employees transferred from Highland to Trailmobile as of January 1, 1944, whose seniority was reduced so as to start as of that date by the July, 1944, collective agreement with the C.I.O. The Highland group contested the agreement’s validity in the Ohio courts in a class suit brought July 17, 1944, by Hess, one of their number, on behalf of himself and 178 others similarly situated. These included 104 persons actually at work, veterans and nonveterans, among whom was Whirls, and 74 employees then in the armed forces. The petition alleged that Trailmobile then had about 500 employees in military service, of whom apparently some 426 were outside the Highland group. The theory of the class suit was that, although the plaintiffs were not then members of the C. I. 0., the collective bargaining agent was the representative of all employees in the unit and hence could not legally deprive a minority of the employees which it represented of their accrued seniority and other rights by any collective agreement with the company. The petition alleged that the collective agreement arbitrarily and unlawfully deprived the plaintiffs of their “vested individual rights” and asked mandatory injunctive relief restoring each to seniority status as of the date of his employment by Highland. The company and the collective agent stood upon the terms of the collective agreement and the agent’s authority as certified representative to make it as justifying the action taken under it. The Ohio courts held against the plaintiffs in the action, sustaining the position of the company and the union. They held in effect that the seniority rights in issue arose exclusively from contract, making no reference whatever to § 8 of the Selective Training and Service Act or any question relating to it; that the company and the collective representative were lawfully empowered to enter into the contract fixing those rights as of January 1,1944; that the trial court was not authorized, in its own language, “to contract for the plaintiff[s] or make a new contract,” since that powder “exists only in the exclusive bargaining agent, under the provisions of the National Labor Act so long as that agent acts within the law.” Accordingly the suit was dismissed. The record here does not disclose the date of the trial court’s judgment. But its decision was affirmed by the Ohio Court of Appeals before October 2, 1945, when the union’s answer was filed in the present cause; and the case had been finally determined against the plaintiff’s claims by the Supreme Court of Ohio prior to October 15, 1945. The record is not entirely clear concerning the exact character and sequence of events between July 15, 1944, when Whirls and other former Highland employees were notified that their seniority status would be changed, and September 18, 1945, when the present suit was filed in the District Court. Apparently, after the notice was given, Selective Service officials intervened in behalf of Whirls and other veterans, although his allegation that his seniority was restored as a result of that intervention was denied both by the company and by the union. There is ambiguity also concerning whether the closed-shop provision appeared in the 1944 agreement or only in the 1945 one between the company and the C. I. 0. The facts of record, however, are more consistent with the view that it was not introduced until the latter year. At any rate, in June or July, 1945, Whirls joined the C. I. 0. union, thus complying with the closed-shop provisions of the collective agreement. And until about September 3 of that year he continued to be employed in the painting department, where he had the highest seniority and was drawing pay of $1.05 per hour. On or about that date, however, the company transferred him to the stock department, threatening to reduce his pay to $0.83 per hour and also to reduce his seniority rating in accordance with the collective agreement. Whether or not the threatened reductions actually took effect is not clear from the record, for not long afterward Whirls was transferred again, to a position paying $1.18 per hour in another department. But before this was done, represented by the United States Attorney, he brought this suit in the District Court under the Selective Training and Service Act. He sought to enjoin the threatened decrease in pay and change in seniority status. He also asked for restoration to his former position in the painting department and to his seniority as fixed by his original employment with Highland. The employer answered and the local C. I. 0. union intervened in support of the employer’s position. However, since Whirls had been transferred again before the case came on for hearing, the parties agreed at the hearing to limit the issues to those affecting the question of seniority. This was presented in two forms, (1) on the merits, the facts being substantially stipulated; (2) on the question whether the state court proceeding in the class suit had determined the seniority rights of Whirls, making the issue now raised res judicata for this suit. See Angel v. Bullington, 330 U. S. 183. Taking respondent’s view in both respects, the District Court rendered judgment in his favor. The Circuit Court of Appeals for the Sixth Circuit affirmed the District Court’s judgment. 154 F. 2d 866. Besides holding res judicata inapplicable, both courts took the view, contrary to that later reached here in the Fishgold case, that the reemployed veteran was entitled to “superseniority” for one year following his reemployment, and went on to hold that his statutory preferred status with respect to seniority and other incidents of his employment did not end with the expiration of that year. Because of the bearing of the Fishgold decision upon the problem and the importance of the question presented, we granted certiorari. 328 U. S. 831. I. At the outset it is important, in view of certain questions which have been injected beyond the issues presented for decision, to state explicitly what is not before us. In the first place, we are not required to determine whether the class suit in the state courts constituted an adjudication of the rights of the parties involved in this litigation. That question was presented to the District Court and the Circuit Court of Appeals. Both determined it adversely to petitioners, but no error was assigned to this ruling in the petition for certiorari. The question is therefore not before this Court and we express no opinion concerning it. The view entertained in this respect by the District Court and the Circuit Court of Appeals, however, has assumed tangental bearing in connection with the suggestion that the cause may have become moot. In its memorandum filed upon the application for certiorari and in its brief, the Government calls attention to certain events not appearing of record but taking ¡olace after the decision of the Court of Appeals. Though suggesting the facts for our attention, the Government maintains that they do not render the controversy moot. This Court, of course, does not render advisory opinions. And since the suggestion of the facts not only is sufficient to raise the question of mootness but has injected others not comprehended in the issues, it is necessary to dispose of the matter before undertaking a determination of the question otherwise properly here for decision. It is suggested and not denied that under date of April 10, 1946, respondent was notified by the collective agent that he had been charged with conduct unbecoming a member of the union, namely, in bringing this suit without exhausting the remedies provided by its constitution and by-laws; in thereby violating the collective agreement; in negotiating with the employer through others than the union; and in conducting himself in a manner harmful to its interests and those of its members. Accordingly, on April 15,1946, the union requested Trailmobile to suspend Whirls from work. In consequence, the company directed him not to report for duty. Since then, however, it has continued to keep him on the payroll, on leave of absence with full pay. Although the Government urges that Whirls thus continues in the company’s employ and consequently the case is not moot, its suggestion of the facts has overlaid the only issue brought here by the petition for certiorari with questions of unlawful discrimination allegedly arising out of the suggested facts, under the decisions in Steele v. Louisville & Nashville R. Co., 323 U. S. 192; Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U. S. 210; and Wallace Corp. v. National Labor Relations Board, 323 U. S. 248. The facts thus put forward have no proper bearing in this case otherwise than to suggest the question of mootness and to require that any decision which is made upon the merits here be made without prejudice to the future assertion of any rights of respondent which may have been violated by the conduct set forth. We agree that in the circumstances related he remains an employee of the company and the cause is not moot. We also agree that the question of unlawful discrimination is not properly before us for decision. That question, insofar as it arose from events prior to this litigation, was involved in the Ohio class suit without reference, it would seem, to § 8 or its possible effects. And because the petition for certiorari, as we have noted, assigned no error to the Court of Appeals’ ruling on the issue of res judicata arising from the outcome of the class suit, we are not at liberty now to consider the effect of that litigation or the issues of discrimination embraced in it. Insofar as any question of unlawful discrimination may be thought to arise from the facts said to have taken place after the decision of the Circuit Court of Appeals, we are also not free at this time to consider or determine such an issue. As the brief of the Government in respondent’s behalf pertinently states, “These points were not raised on respondent’s behalf in .the lower courts, and no evidence was introduced by any party on the issue of unfair discrimination. Cf. Hormel v. Helvering, 312 U. S. 552, 556. In view of that fact, and of the Hess litigation, we believe that it would be inappropriate, at this stage, to argue these issues.” Wholly aside from any question of power, this disclaimer on behalf of the party affected is a sufficient reason to justify refusal to inject such an issue here or to volunteer aid not sought. We therefore are required to say no more concerning the matter now than that, if respondent has been unlawfully expelled, suspended or otherwise dealt with by the union for asserting his legal rights, the law has provided remedies for such injuries and they may be redressed in appropriate proceedings designed for that purpose upon proof of the facts constituting the wrong and due consideration of the legal issues they present. To assure this possibility, however, the remand which becomes necessary in this cause on the merits will be so framed as to preclude any foreclosure of such rights by possible future application of the doctrine of res judicata arising from this determination. Since, moreover, in the view of the District Court and apparently of the Court of Appeals, the Ohio class suit was dispositive of issues of unlawful discrimination arising out of the facts presented in that litigation without reference to § 8, it may be added that the Ohio determination could not apply, of course, to such discrimination taking place by virtue of later events. We turn therefore to consideration of the sole question presented on the merits, namely, whether under § 8 the veteran’s right to statutory seniority extends indefinitely beyond the expiration of the first year of his reemployment, being unaffected by that event as long as the employment itself continues. II. The relevant portions of §§ 8 (a) and 8 (b) are set out in the margin. But we are concerned particularly with § 8 (c), which reads: “Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) shall be considered as naving been on furlough or leave of absence during his period of training and service in the land or naval 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.” The Government argues on respondent’s behalf that the correct meaning of § 8, and particularly of subsection (c), is that upon reemployment the veteran is entitled to retain indefinitely his prewar plus service-accumulated seniority. Under the statute, it says, this seniority cannot be taken away by a collective bargaining agreement or by the employer, either during the year in which the statute insures the veteran against discharge without cause or thereafter while the employment continues. Support for this view is thought to be derived from the syntax of the statutory language and from the legislative history. It is argued that grammatically the “within one year” provision applies only to the last clause of subsection (c), relating to discharge without cause, and does not refer to the “other rights” given by subsections (b) and (c), including restored statutory seniority. Because the “within one year” provision appears most proximately in connection with the prohibition against discharge, the Government seeks to give that prohibition, including its temporal term, effect as a command wholly distinct from and unrelated to anything preceding. It treats the clause as a grammatically independent sentence and a substantively unrelated provision, although it is separated from the earlier ones only by a comma followed by the conjunction “and.” On this premise of complete severability the Government builds its entire case. The premise necessarily regards § 8 (c) as making no express provision for the duration of “other rights,” but as leaving this to be found wholly by implication. The Government then goes on to conclude that the period to be implied is indefinite. Although the statutory security against discharge ends with the prescribed year, the protection given by § 8 (c) to “other rights” is said therefore not only to be effective for that year, cf. Fishgold v. Sullivan Dry dock & Repair Corp., supra, but to continue in full force for as long as the job may last beyond that time. In this view, of course, the result would be to “freeze” the incidents of the employment indefinitely while “freezing” the right to the job itself for only one year. Difficulties arise in connection with this construction, both in its premise and in its conclusions. One is that the conclusion of indefinite duration would not follow necessarily, if the premise of complete severability were acceptable. On that basis “indefinite duration” as the Government conceives it would not be the only tenable period or even the most probably contemplated one. Several alternatives would be presented. However, the statutory year would not be among them, since it is implicit in the premise of severability that the Act does not apply the concluding clause of § 8 (c) to “other rights” to secure their extension either during or after that time. On the other hand, the Government’s view ignores the usual rule of construction where time is not expressly prescribed, but is evidently to be implied. For generally in such cases duration for a reasonable period is the term accepted by the law rather than permanency or indefinite extension. And this, in varying circumstances, might be found to be longer or shorter than the statutory year prescribed for the job itself. The real trouble however is in the basic premise both grammatically and substantively. It assumes not only the complete independence of the last clause of § 8 from what precedes, but also that employment within the meaning of the Act is something wholly distinct and separate from its incidents, including seniority, rates of pay, etc. We think, however, that the idea of total severability is altogether untenable. To accept it would do violence both to the grammatical and to the substantive structure of the statute. The clause is neither an independent sentence nor a disconnected prohibition without significant relationship to what precedes. “From such position” has no meaning severed from the prior language. The restoration provisions define the very character of the place not only to which the veteran must be restored but equally from which he is not to be discharged. Neither grammatically nor substantively could the discharge provision be given effect without reference to the prior “restoration” clauses. Fishgold v. Sullivan Drydock & Repair Corp., supra. Indeed such reference is explicit both in the phrase “from such position” and in the time provision itself, namely, “within one year after such restoration.” To tear the concluding clause from its context is therefore impossible. It is conjunctive with all that precedes. Nor is it any the more permissible to disconnect its constituent temporal term. There can be no doubt whatever that Congress intended by § 8 (c) to secure the “other rights” guaranteed by it for at least the minimum term of the prescribed one-year period. This indeed was a specific ruling of the Fishgold case. The employee there had not been discharged in the sense of being thrown out of his job altogether. He simply had been deprived of the opportunity to work by the operation of the seniority system when there was not sufficient work for both himself and other employees with greater seniority after he had been accorded his full standing under the Act. That standing included not only his seniority status as of the time he entered the armed forces, but also all that would have accumulated had he remained at work until the date of his reemployment without going into the service. In the language of § 8 (c) he is to be “considered as having been on furlough or leave of absence during his period of training and service in the land or naval forces.” The Court held, indeed, that the Act did not give him standing to outrank nonveteran employees who had more than the amount of seniority to which he was entitled and to which he had been restored; in other words, that he was not given so-called “superseniority.” But it also squarely held that he was given security not only against complete discharge, but also against demotion, for the statutory year. And demotion was held to mean impairment of “other rights,” including his restored statutory seniority for that year. “If within the statutory period he is demoted, his status, which the Act was designed to protect, has been affected and the old employment relationship has been changed. He would then lose his old position and acquire an inferior one. He would within the meaning of § 8 (c) be 'discharged from such position.’ ” 328 U. S. at 286. That § 8 (c) applies to secure the protection of “other rights” for at least the statutory year was therefore inherent in the rationalization of the Fishgold decision. To that extent at any rate the concluding clause was held applicable, not severable, concerning them. This of course destroys the Government’s basic premise of the complete severability of that clause and its resulting non-applicability to “other rights.” While the reemployed veteran did not acquire “superseniority,” § 8 (c) gave him the restored standing for the minimum duration of the prescribed year. It is therefore clear that Congress did not confer the rights given as incidents of the restoration simply to leave the employer free to nullify them at will, once he had made it. Equally clearly Congress did not create them to be operative for the vaguely indefinite and variously applicable period of a reasonable time. But we cannot agree that they were given to last as long as the employment continues, unaffected by expiration of the one-year period. To accept this conclusion, as we have said, would mean “freezing” the incidents of the employment indefinitely while “freezing” the right to employment itself for only one year. As long as the employee might remain in his job, his pay could not be reduced, his seniority could not be decreased, insurance and other benefits could not be adversely affected. And this would be true, although for valid reasons all of those rights could be changed to the disadvantage of nonveteran employees having equal or greater seniority and other rights than those of the veteran with restored statutory standing. The reemployed veteran thus not only would be restored to his job simply, as the Fishgold case required, “so that he does not lose ground by reason of his absence.” 328 U. S. at 285. He would gain advantages beyond the statutory year over such non-veteran employees. We do not think Congress had in mind such far-reaching consequences for the nation-wide system of employment, both public and private, when making the statutory provisions for the veteran’s benefit. At the time it acted, we had not declared war and the men who were called to service were being inducted for a year’s training, with the idea if not the assurance that they would return to civilian life and occupations at the end of that year, without prejudice because of their service. Visionary as this notion proved to be, it hardly can be taken to support the view that Congress contemplated “freezing” the specified incidents of restored employment indefinitely. The Fishgold case, it is true, concerned only events taking place within the statutory year. As the Court of Appeals pointed out in distinguishing this case, 154 F. 2d at 871, the issues there involved no question of the reemployed veteran’s standing after the statutory year. But, as we have said, the decision did hold that § 8 (c) applies to “other rights” for the year. And the rationalization was wholly inconsistent with the idea that those restored rights continued indefinitely after the year, unaffected by its termination. The restored veteran, it was held, could not be disadvantaged by his service to the nation. He “was not to be penalized on his return by reason of his absence from his civilian job.” 328 U. S. at 284. He was to be restored and kept, for the year at least, in the same situation as if he had not gone to war but had remained continuously employed or had been “on furlough or leave of absence.” It is clear, of course, that this statutory addition to the veteran’s seniority status is not automatically deducted from it at the end of his first year of reemployment. But the Fishgold decision also ruled expressly that he was not to gain advantage beyond such restoration, by virtue of the Act’s provisions, so as to acquire “an increase in seniority over what he would have had if he had never entered the armed services. . . . No step-up or gain in priority can be fairly implied.” 328 U. S. at 285-286. For the statutory year indeed this meant that the restored rights could not be altered adversely by the usual processes of collective bargaining or of the employer’s administration of general business policy. But if this extraordinary statutory security were to be extended beyond the statutory year, the restored veteran would acquire not simply equality with nonveteran employees having identical status as of the time he returned to work. He would acquire indefinite statutory priority over non-veteran employees, a preferred status which we think not only inharmonious with the basic Fishgold rationalization, but beyond the protection contemplated by Congress. We are unable therefore to accept the Government’s position. Aside from the events taking place after the Court of Appeals’ decision, which as we have said are not properly here for consideration except upon the question of mootness, Whirls was treated exactly as were other employees in his group having the same seniority and status as he had on the date of his reemployment. There was no discrimination against him as a veteran or otherwise than as a member of that group. Both groups, the former Trailmobile employees and the former Highland employees, who composed his group, contained veterans and nonveterans in large numbers. Both contained veterans in active service and reemployed veterans when the collective agreement was made. Whirls was treated exactly as all other members of his group, the ex-Highland employees, veterans and nonveterans alike. Whether or not the collective agreement was valid, or infringed rights of Whirls and other members of that group apart from rights given by § 8 (c), is not before us, for reasons we have stated. The only question here and the only one we decide is that § 8 (c), although giving the reemployed veteran a special statutory standing in relation to “other rights,” as defined in the Fishgold case, during the statutory year, and creating to that extent a preference for him over nonveterans, did not extend that preference for a longer time. On the facts therefore we are not required to determine the further question whether the statute would give protection to a reemployed veteran after the statutory year, if it were shown that he then had been demoted beneath his rightful standing under the Act as of the date of his restoration, though nonveteran employees having the same seniority standing as of that time had not been demoted or adversely affected. No such question is presented on the facts of record properly before us for consideration and decision. It will be time enough to consider such an issue whenever it may be presented. We find it unnecessary therefore to pass upon petitioners’ position in this case, namely, that all protection afforded by virtue of § 8 (c) terminates with the ending of the specified year. We hold only that so much of it ends then as would give the reemployed veteran a preferred standing over employees not veterans having identical seniority rights as of the time of his restoration. We expressly reserve decision upon whether the statutory security extends beyond the one-year period to secure the reemployed veteran against impairment in any respect of equality with such a fellow worker. These reasons, founded in the literal construction of the statute and the policy clearly evident on its face, are sufficient for disposition of the case. They are not weakened by the Government’s strained and unconvincing citation of the Act’s legislative history. That argument is grounded in conclusions drawn from changes made without explanation in committee with respect to various provisions finally taking form in § 8, changes affecting bills which eventually became the Selective Training and Service Act and the National Guard Act, 54 Stat. 858. Apart from the inconclusive character of the history, the Government’s contention assumes that the only alternatives presented by the final form of the bill were indefinite duration for the incidents of the employment named and none at all. This ignores the other possibilities considered in this opinion, including duration for a reasonable time. Moreover, as has been noted, the most important committee changes relied upon were made without explanation. The interpretation of statutes cannot safely be made to rest upon mute intermediate legislative maneuvers. The argument for respondent in this case is of whole cloth in principle with the contention for “superseniority” made and rejected in the Fishgold case, as indeed the District Court and the Court of Appeals regarded it. Lacking any better legislative footing, it equally cannot stand. Accordingly the judgment of the Court of Appeals is reversed. This however will be without prejudice from the decision here to respondent’s assertion in the future of any rights he may have against Trailmobile or the collective agent on account of their acts not presented on this record or involved in the issues determined by this decision. It is so ordered. 54 Stat. 885, 50 U. S. C. App. § 301 et seq. In 1944 there was a minor modification of § 8 not here relevant. 58 Stat. 798; Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275, 278, note 1. As amended the Selective Training and Service Act expired in its major part March 31, 1947. Act of June 29, 1946, 60 Stat. 341. But § 8 is saved indefinitely. “He acquires not only the same seniority he had; his service in the armed services is counted as service in the plant so that he does not lose ground by reason of his absence.” 328 U. S. 275, 285. Though the fact does not appear affirmatively in the record, the parties agree that Whirls upon his reemployment after his military service received in addition to the seniority he had acquired at the time of his entry into military service also seniority accrued during the period of his service, consistently with the standard of the Fishgold case. This accorded with the then effective collective bargaining agreement which provided: “In case of a national crisis, such as a declared or undeclared war, any man who relinquishes his job with the Company for services rendered to the Government, shall on his return to work retain his place on the seniority list with accumulation,” See 51 N. L. R. B. 1106, 1107, for details of the companies’ operations. In the last full year of independent operation, 1942, Highland had approximately 100 employees and produced commodities worth approximately $1,500,000 and Trailmobile had approximately 1,000 employees and produced commodities worth $12,000,000. 51 N. L. R. B. 1106; 53 N. L. R. B. 1248. As the National Labor Relations Board determined that the appropriate bargaining unit was one composed of both Highland and Trailmobile employees, 51 N. L. R. B. at 1113, the ex-Highland employees, of course, lost the election, since there were many more Trailmobile employees. See note 5. The bargaining unit excluded supervisory and certain miscellaneous employees of both companies. 51 N. L. R. B. 1114-1115. See note 3. There are holdings that, although a collective bargaining ageist may by contract with the employer modify the seniority structure, it must act in good faith toward all employees. See Seniority Rights in Labor Relations (1937) 47 Yale L. J. 73, 90; Christenson, Seniority Rights under Labor Union Working Agreements (1937) 11 Temp. L. Q. 355, 370-371. The class suit was filed and determined before the decisions were rendered here in Steele v. Louisville & Nashville R. Co., 323 U. S. 192; Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U. S. 210; Wallace Corp. v. National Labor Relations Board, 323 U. S. 248. Hess v. The Trailer Co., 31 O. O. 566, 17 O. Supp. 39, affirmed by the Court of Appeals, Hamilton County, Ohio, motion to certify record to the Ohio Supreme Court overruled, O. Law Rep., October 15, 1945, 51; 18 Ohio BAR 314. The pleadings in the class suit have been made part of the record in this case. Neither they nor the findings and judgment of the trial court in that cause disclose any reference to or consideration of § 8 or its possible effects upon that litigation. See note 8 supra. See note 9 supra. Whirls’ petition in this case alleged that after the notice of July 15, 1944, “defendant herein again restored plaintiff to his date of hiring, as regulating his seniority, to-wit: February 8, 1935, pursuant to a directive of the Selective Service System of the United States, and he continued to benefit by such seniority status until on or about September 3,1945, at which time” the defendant transferred him as stated below in the text and threatened, unless restrained, to reduce his pay and seniority rating. Section 8 (e) of the Selective Training and Service Act, quoted in Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. at 280, note 3. The Court of Appeals expressly stated its disagreement with the views expressed by Judge Learned Hand, 154 F. 2d 785, writing for the majority of the Circuit Court of Appeals in the Fishgold case, the decision in which was affirmed here. The Government’s brief puts the suggestion and discussion it makes as a matter of not desiring its “failure to explore the nature and causes” of the alleged discrimination to be taken “as an admission either” that there was not unfair discrimination under the Steele, Tunstall and Wallace cases, supra; or that such discrimination “cannot be redressed under Section 8 . . . after the lapse of the initial year of reemployment . . . .” See note 16. The Court of Appeals, noting that Whirls was not named as a party to the class suit other than as a member of the class, pointed out that numerous members of the armed forces were involved in both groups of employees, but that their interests as veterans under § 8 were not common to the nonveteran employees in either group. Hence, it concluded, the class suit was not appropriate for rendering a judgment binding upon veteran members of the complaining class as to the question of their seniority under § 8. 154 F. 2d 866, 872. “Sec. 8. (a) Any person inducted into the land or naval forces under this Act for training and service, who, in the judgment of those in authority over him, satisfactorily completes his period of training and service under section 3 (b) shall be entitled to a certificate to that effect upon the completion of such period of training and service, which shall include a record of any special proficiency or merit attained. . . . “ (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, (2) is still qualified to perform the duties of such position, and (3) makes application for reemployment within forty days after he is relieved from such training and service— “(A) if such position was in the employ of the United States Government, its Territories or possessions, or the District of Columbia, such person shall be restored to such position or to a position of like seniority, status, and pay; “(B) if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority, status, and pay unless the employer’s circumstances have so changed as to make it impossible or unreasonable, to do so; ... .” The Government states that a veteran could be reduced in seniority on account of bona fide changed circumstances or on account of cause or upon waiver. As to this, see note 25. Seniority arises only out of contract or statute. An employee has “no inherent right to seniority in service . . . ." Ryan v. New York Central R. R., 267 Mich. 202, 208; Casey v. Brotherhood, 197 Minn. 189, 191-192. “The seniority principle is confined almost exclusively to unionized industry.” Decisions (1946) 46 Col. L. Rev. 1030, 1031, and authorities cited. “In private employment seniority is typically created and delimited by a collective bargaining agreement . . . Ibid. See note 20. The Government’s argument is limited to seniority. But it is equally applicable to the other components of “position,” such as pay. Thus, if accepted, it would mean that after the guaranteed one year a veteran could be discharged but could not have his pay reduced. The position to which an employee must be restored is either the position previously held or “a position of like seniority, status, and pay.” See note 18. It is thus recognized that part of the restored “position” is the seniority accrued prior to service in the armed forces and, under the Fishgold case, during service. “Seniority” is part of “position,” and therefore when the Act states in subsection (c) that the veteran may not be discharged “from such position” it means both from the job itself and from the seniority which is part of the job. See, e. g., Dillon v. Gloss, 256 U. S. 368, 375; Sunflower Oil Co. v. Wilson, 142 U. S. 313, 322; 1 Williston, Contracts (Rev. ed.) 152. Section 8 (c), it will be recalled, forbids discharge “without cause within one year.” It may be that the “without cause” qualification applies to “other rights” as well as to total discharge, more especially in view of the position we take concerning the severability of the concluding clause of § 8 (c). But no question is presented in this case whether the employer, for cause, could demote a reemployed veteran within the statutory year consistently with the requirements of § 8 (c), and we express no opinion in this respect. See S. Rep. 1987, 76th Cong., 3d Sess.; H. Rep. 2847, 76th Cong., 3d Sess.; H. Rep. 2874,76th Cong., 3d Sess. The Government also relies upon certain statements taken out of context from the debates. “As is true with respect to all such materials, it is possible to extract particular segments from the immediate and total context and come out with road signs pointing in opposite directions.” Hust v. Moore-McCormack Lines, 328 U. S. 707, 733. None of the selections is directed toward the question whether the veteran’s seniority continues after the guaranteed one-year period so as to be not subject to modification by a collective bargaining agreement. 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_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. AMERICAN SAFETY TABLE COMPANY, Inc., Plaintiff-Appellee, v. Joseph SCHREIBER and David Goldberg, individually and as partners trading as Schreiber & Goldberg, Defendants-Appellants. No. 88, Docket 26228. United States Court of Appeals Second Circuit. Argued Nov. 17, 1960. Decided Feb. 28, 1961. Rehearing Denied March 22, 1961. Leon Edelson, Philadelphia, Pa., by Paul S. Bolger (Keith, Bolger, Isner & Byrne, New York City, on the brief), for plaintiff-appellee. Charles Sonnenreich, New York City, for defendants-appellants. Before LUMBARD, Chief Judge, and MEDINA and MOORE, Circuit Judges. MEDINA, Circuit Judge. This litigation involved two actions that were consolidated for trial. The first was an action for patent infringement and unfair competition; the second was for infringement of a patent in the same subject matter issued after the commencement of the first action. The trial resulted in the dismissal of the claim for unfair competition and an adjudication that both patents were valid and infringed. Separate judgments were entered in the two actions, and in the second one a counsel fee was allowed to plaintiff. We reversed the judgment in the second action, held the second patent invalid for lack of invention, set aside the counsel fee and dismissed the complaint. In the first action we affirmed the adjudication of patent validity and infringement, reversed the dismissal of the claim of unfair competition and directed the issuance of an injunction and an accounting. As there had been a single trial of closely related issues and the ultimate result was a substantial victory for plaintiff, we treated the subject matter as constituting an integral controversy and directed that on the remand reconsideration be given to the part of the judgment in the first action that denied plaintiff’s application for a counsel fee. On the remand, and on the basis of the trial record without further testimony the trial judge determined that a counsel fee should be paid by defendants and that they were liable for damages for infringement of the patent involved in the first action and for damages caused by the unfair competition; and the interlocutory judgment appealed from appointed a Special Master to fix the amount of the counsel fee and conduct the accounting necessary to determine the amount due to plaintiff as damages. The interlocutory judgment also formulated the terms of the injunction required to implement the directions contained in our mandate. Plaintiff appeals only “from that part of the (interlocutory) judgment made and entered in this action on February 24, 1960, numbered ‘5,’ ‘6,’ ‘8(a), (g), (h), (i)’ and from so much of ‘8(e)’ as requires defendants to ‘designate upon used Amco collar pressing machines and die assemblies submitted to defendants for repair, reconstruction or reconditioning, that the same is a used Amco unit.’ ” Defendants also appeal from the order denying their motion to amend this interlocutory judgment. Defendants also apply for mandamus to review and set aside the parts of the interlocutory judgment relating to the counsel fee and the accounting. The issues at the trial were extremely complicated and confusing, and we shall, in the ensuing discussion, assume familiarity with our opinion on the prior appeal. American Safety Table Company v. Schreiber & Goldberg, 2 Cir., 1959, 269 F.2d 255, Judge Clark dissenting, certiorari denied 1959, 361 U.S. 915, 80 S.Ct. 259, 4 L.Ed.2d 185. In view of the specified limitations in the amended notice of appeal, attention should be directed first to the portions of the interlocutory judgment not under attack. Patent No. 2,090,318 has been held to be valid and infringed (Paragraphs 2 and 3). Schreiber & Goldberg have been directed to account for infringement damages (Paragraph 4). In the unfair competition claim, Schrei-ber & Goldberg are enjoined from advertising their machines without clearly identifying them as the manufacturer (Paragraph 8(b)), from advertising the names of Amco’s exclusive agents or dealers in connection with Schreiber & Goldberg’s machines (Paragraph 8(c)), from the use of parts made by or for Amco in machines sold by Schreiber & Goldberg as new and of their own manufacture (Paragraph 8(d)), and from the use in Schreiber & Goldberg machines of parts made by or for Schreiber & Goldberg bearing Amco numbers or identifying indicia (Paragraph (f)). Although Schreiber & Goldberg complain of Paragraphs 5, 8(a) and 8(i), these paragraphs conform to the intent of our opinion on the former appeal. They do no more than direct an accounting for all “damages sustained and the profits lost by plaintiff [Amco] on account of the unfair trade practices by the defendants [Schreiber & Goldberg] until such time as the same may have been discontinued”; to enjoin fraudulent marketing (8(a)); and to enjoin practices likely to result in confusion as to source of origin of the machines (8 (i)). These provisions are necessary to carry out our original opinion and they fairly reflect unfair competition principles. Thus there remain Paragraphs 8(e), 8(g) and 8(h). These injunctive provisions must be tested against the directions of this Court and the law relating to unfair competition. To further narrow the issues, clarification of 8(e) is necessary. Schreiber & Goldberg’s amended notice of appeal misconstrues this paragraph. Schreiber & Goldberg are enjoined “from the repair, reconstruction or reconditioning for resale by defendants of any used Amco collar pressing machines and die assemblies without clearly designating upon such machines and die assemblies and in defendants’ invoices relating thereto that the same is a used Amco unit.” The critical words are “for resale by defendants” which apply to repair, reconstruction and reconditioning. When a “customer” submits a die assembly for remodelling, of course, as Schreiber & Goldberg claim, he knows from whom he previously purchased the die. Paragraph 8(e) does not require additional markings on dies remodelled and returned to customers. Such dies are not for resale. Amco concedes as much in its brief (p. 11) in saying: “This provision is not intended to cover dies or machines which the customer may send to the defendants for repair, reconditioning, reconstruction or remodelling and which remain the property of the customer. Instead, it is intended to cover Amco dies and machines which come into the possession of the defendants by purchase, trade-in or otherwise and which are repaired, reconditioned or reconstructed, as distinguished from any remodelling thereof, by the defendants and then resold by them.” (Emphasis by counsel.) Because of the possibility of confusion in the case of a sale, Amco argues that “the defendants should not be permitted to sell a remodelled Amco die in which certain original Amco parts, * * * are replaced by corresponding parts made by the defendants, particularly if such substituted parts carry the defendant’s name or initials.” However, this restraint is applicable only if the resale is made “without clearly designating upon such machines and die assemblies and in defendant’s invoices relating thereto that the same is a used Amco unit.” This requirement does not exceed the demands of ordinary commercial honesty and should be affirmed. Do Paragraphs 8(g) and (h) go beyond what we intended should be done to conform to the direction in the opinion, 269 F.2d at page 277, that Schreiber & Goldberg be ordered “to adopt reasonable means to distinguish their machines from the Ameos”? It is argued that the provisions of Paragraphs 8(g) and (h) in effect put Schreiber & Goldberg out of the business of manufacturing and selling double-point collar pressing machines and die assemblies, and establish a perpetual monopoly for the benefit of Amco. We certainly never intended any such result. On the contrary, as indicated in the opinion again and again, we intended no departure from the basic principles of the law of unfair competition as stated in this Circuit. In our exposition and analysis of the problems and difficulties of balancing the equities between competition and monopoly we summarized at pages 274-275 of the opinion some of the factors bearing upon the requirement “that the means of distinction be reasonable under the circumstances.” Simple as this direction may be, the word “reasonable” raises many of the most complex problems in the law of unfair competition. The adoption of reasonable means to distinguish the Schreiber & Goldberg machines and die assemblies from the Ameos is a particularly delicate task here as, after the expiration of Voigt Patent No. 2,090,318 in 1954, Schreiber & Goldberg would have been entitled to copy the Amco machine as disclosed in the patent, down to the last detail, but for its fraudulent marketing which we held (at page 271) “makes every feature of the whole scheme actionable in its entirety.” Every reasonable means of preventing a continuance of deceptive practices is proper; we did not intend the judgment to go further than this. See Kellogg Co. v. National Biscuit Co., 1938, 305 U.S. 111, 120-121, 59 S.Ct. 109, 83 L.Ed. 73; Modern Aids, Inc. v. R. H. Macy & Co., 2 Cir., 1959, 264 F.2d 93; J. C. Penney Co. v. H. D. Lee Mercantile Co., 8 Cir., 1941, 120 F.2d. 949, 955. With these principles in mind, we find Paragraph 8(g) unnecessary for the protection of Amco’s rights and the public generally. Other provisions of the interlocutory judgment are sufficient to avoid the deception which the law does not permit. The new type of Schreiber & Goldberg machine left with us as an exhibit at the time of the argument of this appeal shows the changes already adopted by Schreiber & Goldberg. These changes are all open and obvious. They consist of flattening the top and rounding the bottom edges of the table, changing the slope of the table from 37 to 42 degrees, as above stated, painting it light grey instead of green, and, especially the substitution of the three-pivot toggle for the Y-Yoke, the elimination of the leaf-springs, and the substitution of the %" bars for the auxiliary pressure arms. Accordingly, we think the inclusion of Paragraph 8(h) was proper. It follows: “(h) from making or selling or offering for sale double point collar forming and pressing die assemblies wherein the pressure applying member is in the form of a yoke of generally Y-shaped configuration and/or wherein the top pressure shoes are held in leveled position by leaf-spring members bearing against said shoes at points spaced in front of the aforesaid pressure applying yoke member, and/or wherein auxiliary pressure arms for half collar shaping and pressing are made in substantially exact simulation of those employed in plaintiff’s y2 die assemblies.” Nothing in Paragraph 8(h) will prevent Schreiber & Goldberg from continuing to manufacture and sell their new type of machines or from repairing old Y-Yoke machines, just as they have been doing for several years. Indeed, as we understand it, some features of the new type of machines have been patented by Schreiber & Goldberg. What Paragraph (h) does is to enjoin the old copying of the Y-Yoke, the use of the leaf-springs and the auxiliary pressure arms. This seems to us to be entirely reasonable, under the circumstances, and to involve no hardship, as the new type machines of Schreiber & Goldberg are said to function as well as the Ameos, despite the marked difference in appearance. So much of the appeal as concerns the provisions of the judgment relating to the accounting and the counsel fee is dismissed as interlocutory and not appealable. We have already indicated that there was no misunderstanding by the trial judge of the meaning of our opinion on the subject of the accounting. Accordingly, as we see nothing sufficiently extraordinary or unusual about the case to warrant mandamus, the petition for mandamus is denied. Our direction to the District Court is, to modify the interlocutory judgment by the elimination of Paragraph 8(g), and to vacate the stay. Otherwise, the injunctive features of the interlocutory judgment referred to in the amended notice of appeal are affirmed, with costs to Amco. Affirmed as modified. . “(g) from making or selling or offering for sale double point collar forming and pressing machines wherein the table top is rectangularly shaped and/or is sloped 'to an angle of 37 degrees plus or minus 20 degrees.” 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_adminrev

O

What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable". Michael F. LALLY, Appellant, v. CRAWFORD COUNTY TRUST & SAVINGS BANK, DENISON, IOWA; Jimmie Thomas, Appellees. No. 88-1788. United States Court of Appeals, Eighth Circuit. Submitted Dec. 7, 1988. Decided Dec. 22, 1988. Michael F. Lally, pro se. James B. Cavanagh, Omaha, Neb., for appellees. Before McMILLIAN, JOHN R. GIBSON and MAGILL, Circuit Judges. PER CURIAM. Michael Lally appeals pro se from the orders of the district court dismissing his complaint for failure to state a claim. After carefully reviewing the record, we affirm. This action arose out of the manner in which a $48,000 debt owed by Lally was collected by appellees Crawford County Trust and Savings Bank and its employee, Jimmie Thomas. Lally filed a complaint for violations- of 42 U.S.C. § 1983, the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (RICO), and the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1601-1692o (FDCPA), which the district court ultimately dismissed for failure to state a claim. This appeal followed. A party is subject to suit under 42 U.S.C. § 1983 if “the conduct allegedly causing the deprivation of a federal right [can] be fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). In the case at bar, Lally’s § 1983 claim was based on the allegation that Thomas acted under color of state law when he threatened to have Lally put in jail for violating state criminal statutes. We hold that the district court properly dismissed Lally’s § 1983 claim for lack of state action. Although a pro se complaint is to be liberally construed, it “must contain specific facts supporting its conclusions.” Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.1985). In pleading RICO violations, a litigant must allege the time, place, and content of all false representations. Bennett v. Berg, 685 F.2d 1053, 1062 (8th Cir.1982), rev’d in part on other grounds, 710 F.2d 1361 (banc), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). This Lally failed to do in spite of the fact that the district court afforded him sufficient opportunity to amend his complaint and warned that his failure to do so would result in dismissal. The district court’s dismissal of Lally’s RICO and FDCPA claims was proper. Accordingly, the judgment of the district court is affirmed. . The Honorable Donald E. O'Brien, Chief Judge, United States District Court for the Northern District of Iowa. Question: What federal agency's decision was reviewed by the court of appeals? A. Benefits Review Board B. Civil Aeronautics Board C. Civil Service Commission D. Federal Communications Commission E. Federal Energy Regulatory Commission F. Federal Power Commission G. Federal Maritime Commission H. Federal Trade Commission I. Interstate Commerce Commission J. National Labor Relations Board K. Atomic Energy Commission L. Nuclear Regulatory Commission M. Securities & Exchange Commission N. Other federal agency O. Not ascertained or not applicable Answer:

songer_appel1_7_5

F

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). William McQUEEN et al., Plaintiffs, Appellees, v. Bertram DRUKER et al., Defendants, Appellants. No. 7726. United States Court of Appeals, First Circuit. Feb. 24, 1971. Robert J. Sherer, Boston, Mass., with whom Thomas D. Garvin Jr., and Michael Putziger, of Roche, Carens & De-Giacomo, Boston, Mass., were on brief, for appellants. Michael L. Altman and Brian Michael Olmstead, Dorchester, Mass., for appel-lees. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. COFFIN, Circuit Judge. Appellees are tenants in a 500 unit apartment complex, Castle Square, in the South End of Boston — the same subsidized housing facility constructed and operated under section 221(d) (3) of the National Housing Act, 12 U.S.C. § 17151(d) (3), which was involved in Hahn v. Gottlieb, 430 F.2d 1243 (1st Cir. 1970). This suit originated when appellant landlord, in accordance with the terms of the lease, notified these tenants in May, 1970, that it was not to be renewed after the July 31, 1970 termination date. Appellees brought this action under 42 U.S.C. § 1983, asserting jurisdiction under 28 U.S.C. §§ 1331, 1343, and seeking an injunction against their threatened eviction; a declaration that eviction must be predicated on cause, with notice, hearing and assurance of alternative housing; and compensatory and punitive damages. The district court found sufficient federal and state involvement to make applicable the due process clauses of the Fifth and Fourteenth Amendments and the First Amendment. It enjoined the eviction, and made two declarations of rights and responsibilities. First, it declared that the statutory scheme for § 221(d) (3) housing impliedly requires a good-cause notice to evict and that state court proceedings, observing this substantive federal ruling, would provide procedural due process. Second, it declared that, since “the chief reason” for the landlord’s notice to quit was “associational activities” on behalf of fellow tenants, petitions to the Federal Housing Authority, and litigation, the First and Fourteenth Amendments barred any eviction so grounded. 317 F.Supp. 1122 (D.Mass. 1970). The large problem for us is whether the landlord’s action in exercising his contractual right under the lease not to renew and in seeking to evict appellees, can rationally be said to be such “state action” as to call into play the Fourteenth Amendment. More precisely, the question is whether the landlord, though not an ostensible agent of the state, has such a relationship with the state that his activities take on the color of state law. United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). The district court, relying on Colon v. Tompkins Square Neighbors, 294 F.Supp. 134 (S.D. N.Y.), as well as on Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), and Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), reasoned that “With respect to Castle Square, the federal and state governments have elected to place their power, property, and privilege behind the landlords’ authority over the tenants, and have insinuated themselves into a position of interdependence with the landlords.” The landlord claims that this case involves only “a regulation of the operations of a private business, not a vesting in it of the functions of government” and argues, citing Grossner v. Trustees of Columbia University in the City of New York, 287 F.Supp. 535, 548 (S.D. N.Y. 1968), that “the receipt of money from the State is not, without a good deal more, enough to make the recipient an agency or instrumentality of the Government”. He attacks the court’s finding in the words of Mr. Justice Harlan’s dissent in Wilmington Parking Authority, supra, 365 U.S. at 727, 81 S..Ct. at 862, as the result of “undiscriminatingly throwing together various bits and pieces”. We do not agree. Our scrutiny of the landlord-state relationship indicates far less privateness in the landlord’s enterprise, far more of a governmental function, and “a good deal more” than receipt of governmental financial help. They are inescapably the “bits and pieces” on which an ultimate judgment must rest after “sifting facts and weighing circumstances”, Wilmington Parking Authority, supra, 365 U.S. at 722, 81 S.Ct. 856. We concede that little guidance in making a principled decision is found in such serpentine words as “insinuated”, Wilmington Parking Authority, supra, 365 U.S. at 725, 81 S.Ct. 856, “involved”, Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), “entwined”, Evans v. Newton, 382 U.S. 296, 301, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966), or “intertwining”, Grossner, supra, 287 F.Supp. at 548. Commentators have varied in approving or disapproving this lack of precision, but all have recognized it. Recognizing that the state coloration required by § 1983 is inevitably opaque, we nevertheless hazard our analysis. Defendant purchased the Castle Square property from the Boston Redevelopment Authority (BRA), which had condemned it in connection with its urban renewal program. The federal incentive to private entrepreneurs, inducing them to take part in helping achieve the national objective of providing housing for needy and displaced families, is insurance of mortgage loans up to 90 per cent of a project’s cost, supplementation of mortgagors’ interest payments above 3 per cent, and assurance of a 6 per cent return on investment through rent adjustments. In addition to limiting the exposure of private enterprise, the federal law imposes requirements which must be adopted by participating states. For example, federal law requires that, in disposing of urban renewal property, the BRA must place restrictions on the use of property in order to ensure that it is used in accordance with approved urban renewal plans or for low or moderate income housing. 42 U.S.C. §§ 1460(c) (4), 1455, and 1457. State law requires similar restrictions. Mass.Gen.Laws ch. 121, §§ 26YY and 26 LL. Consequently, the BRA has required the landlord through a lengthy Land Disposition Agreement to adhere to many standards governing the physical plant (e.g., prior approval for construction, improvements and demolition, a minimum investment in works of art, facilities for the handicapped, equal employment opportunity); limitations on rental. agreements as to amount, duration, and increases; admissions policies (e.g., income levels of applicants, priority to four classes of displaced persons and four classes of commercial occupants, and allowing the Boston Housing Authority to select tenants for 10 per cent of the residential units); management (e.g., use solely in accordance with the South End Urban Renewal Plan, consultation with BRA “with respect to its rental program, including preparation of advertising matter, brochures, leases, establishment of rental offices, and all aspects of said program which relate to or have an effect upon the selection of tenants”, inspection at all reasonable hours); transfer of title (e. g., compliance with any “conditions * * * the Authority may find desirable in order to achieve and safeguard the purposes of the Massachusetts Housing Authority Law, and the Plan.”). The state supervision of the “private” operations here seems to us to be more than the placing of state “power, property and prestige” behind the discriminatory action of a private restaurateur-lessee in a public building. Burton v. Wilmington Parking Authority, supra, 365 U.S. at 725, 81 S.Ct. 856. Here the landlords are, in return for an assured consideration, and subject to specific and continuing oversight, helping the state realize its specific priority objective of providing for urban renewal displacees and its more general goal of providing good quality housing at rents which can be afforded by those of low and moderate income. The stronger posture of government supervision present in this case is not unrelated to the fact that the government has chosen to attract the participation of private persons in carrying out a specific governmental purpose. In Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966), the Court held that a park, serving the community and having a municipal purpose, could not be insulated from the effect of the Fourteenth Amendment by transfer of title to private trustees. It also observed that “If the municipality remains entwined in the management and control of the park, it remains subject to the restraints of the Fourteenth Amendment just as the private utility in Public Utilities Comm’n v. Pollak, 343 U.S. 451, 462, [72 S.Ct. 813, 96 L.Ed. 1068], remained subject to the Fifth Amendment because of the surveillance which federal agencies had over its affairs.” 382 U.S. at 301, 86 S.Ct. at 489. Here the function, while perhaps not so traditionally governmental as parks, fire or police services, or libraries, is today one of the major concerns of most cities of substantial size. And to the performance of that function by the landlord, governmental authority contributes significant operational surveillance. We view our task of “sifting facts and weighing circumstances” as one to be done to the end of determining when it is fair and reasonable to hold an individual subject to the same duties of observance of constitutional rights as are imposed on a governmental unit. Mere receipt of financial subsidy and subjection to some regulation are the conditions of much of our societal life. Neither factor — or both together — is dispositive of “state action”. But, while we disavow any effort to be definitive, we conclude that at least when a specific governmental function is carried out by heavily subsidized private firms or individuals whose freedom of decision-making has, by contract and the reserved governmental power of continuing oversight, been circumscribed substantially more than that generally accorded an independent contractor, the coloration of state action fairly attaches. This brings us to the implications of the applicability of the Fourteenth Amendment to the landlord’s pending action to evict appellees. Appellant’s burden is to establish that the district court’s finding was clearly erroneous. We have examined the record and find abundant evidence supporting the district court’s determination. The appellant distributed a flyer to all tenants announcing his intention to evict the appellees including as a reason “the many confrontations * * * with the McQueens” as compelling his actions. The manager of Castle Square in his testimony admitted telling the appellees’ counsel that the conflict with the McQueens had become a “cause celebre” and that the landlord could not tolerate being confronted. The appellant did not deny that his motive was retaliatory at least in part. He presented in addition a panoply of alternate reasons for the eviction, all of which had been unsuccessfully tendered previously in state eviction proceedings against the McQueens. The court was well within its bounds to discount these grounds and find the dominant and primary motive one of retaliation against the appellees for their exercise of First Amendment rights. Cf. NLRB v. Billen Shoe Co., 397 F.2d 801 (1st Cir. 1968). This established, it must follow that, whatever other rights or privileges may be available, appellees are at least protected from this eviction. The appellees in addition request a further declaration that the Castle Square landlord may not evict a tenant without giving notice of good cause for the eviction accompanied by a hearing thereupon in order to satisfy due process. Because of our disposition of this appeal on the grounds stated above, we do not have to reach this latter question. As far as this tenant is concerned, the landlord may not evict him for holding over after termination of his lease because, as found by the district court, the eviction was brought because of the exercise by the tenants of their First Amendment Rights. The procedural rights of a tenant whose eviction is not motivated by constitutionally impermissible reasons is not presented by this appeal. Furthermore, we doubt whether any “case or controversy” is involved when a tenant requests a declaration of procedural rights as to an imagined future eviction which has never been threatened. The Declaratory Judgment Act requires more concreteness than this. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937); 6A Moore ¶ 57.12. Finally, while Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1968), laid down the procedural rights of tenants in wholly public housing projects as a result of non-constitutional analysis, we are disinclined to attempt to define any additional constitutional rights of tenants in a § 1983 case in the absence of a more real crucible of controversy. The judgment of the district court is affirmed insofar as it enjoins appellant from proceeding further with respect to his May 20, 1970 notice of termination of the McQueen tenancy and with respect to the proceedings for eviction of the McQueens which appellant began in the Boston Municipal Court on August 31, 1970. . During the pendency of this litigation one of the two named landlord-defendants died. We shall therefore refer to the sole appellant as “landlord” as a matter of convenience. . The landlord’s subsequent eviction action, by agreement, awaits final resolution of this appeal. . We base this decision on state, not federal involvement, the former being the only issue argued on. appeal by appellees. . This case dealt with very similar facts. We do not feel that Colon is inconsistent with the subsequent Second Circuit case, McGuane v. Chenango Court, Inc., 431 F.2d 1189 (1970), which seems to hold only that mere receipt of mortgage insurance under the National Housing Act does not make a private apartment house owner an agency of a state. With this proposition we of course agree as our discussion indicates. . The commentary might be broadly grouped into articles which decry the indefiniteness of the concept; e. g., Lewis, Burton v. Wilmington Parking Authority —A Case Without Precedent, 61 Colum. L.Rev. 1458 (1961), Note, The Distin-tegration of a Concept — State Action Under the 14th and 15th Amendments, 96 U.Pa.L.Rev. 402 (1948) ; articles which would jettison the concept and seek an appropriate substitute for it; e. g., Horowitz, The Misleading Search for “State Action” Under the Fourteenth Amendment 30 S.Cal.L.Rev. 208 (1957), Van Alstyne & Karst, State Action, 14 Stan.L.Rev. 3 (1961) ; and articles which find merit in the concept’s open-endedness only as second choice to its demise as a restriction on the 14th Amendment; e. g., Black, “State Action”, Equal Protection, and California’s Proposition 14, 81 Harv. L.Rev. 69 (1967). . By subsequent agreement between the landlord and the BHA this commitment ' was raised to a maximum option of 25% as part of tlie-BHA’s leased housing program, under -which the BHA guarantees rental payments. ' In addition, the City of Boston has granted the landlord a concessionary tax rate of 15% of income. Both these arrangements decrease the landlord’s risk of non-payment of rents, the former by assuring the landlord of at least 25% of his rents each month without recourse to collection efforts, and the latter by pegging his tax obligations to rents actually received. Although the regulatory agreement with the FHA assures the landlord a 6% return, altering the rent schedules to produce such a return necessarily involves some delay. The arrangements with the BHA and the City therefore act to ease the financial shock sustained during this required lead time. . See also Kerr v. Enoch Pratt Free Library of Baltimore City, 149 F.2d 212 (4th Cir. 1945), and Derrington v. Plum-mer, 240 F.2d 922 (5th Cir. 1956). . Compare Powe v. Miles, 407 F.2d 73 (2d Cir. 1968), where in an interesting juxtaposition of eases, the court held that disciplinary action against students in the Liberal Arts College of Alfred University was held not to be under color of state law, while similar action against students of the state-controlled New York State College of Ceramics on the same campus was held to be state action. Our instant ease falls between the two, but closer to the second. . Indeed, the particular activity engaged in by appellees is within the spirit if not the letter of the Massachusetts law giving a tenant a right of action against a landlord “who threatens or takes reprisals * * * for reporting * * * a suspected violation of any health or building code or of any other municipal by-law or ordinance, or state law or regulation which has as its objective the regulation of residential premises * * Mass.Gen.Laws Ch. 186, § 18. Cf. also Edwards v. Habib, 130 U.S.App.D.C. 126, 397 F.2d 687 (1968). . Appellant has protested a ruling of the district court refusing to reopen the record to receive evidence which, so far as we can see, was within the power of appellant to present earlier. The evidence bore on only one of a number of facts relating to appellant’s motives. The ruling of the court was well within its discretion. 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_civproc1

0

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. Fredric C. MUNTWYLER, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. No. 82-1882. United States Court of Appeals, Seventh Circuit. Argued Dec. 6, 1982. Decided March 31, 1983. William A. Whitledge, Dept, of Justice, Tax Div., Washington, D.C., for defendant-appellant. Paul Horowitz, Chicago, Ill., for plaintiffappellee. Before CUMMINGS, Chief Judge, PELL, Circuit Judge, and HOFFMAN, Senior District Judge. Walter E. Hoffman, Senior District Judge for the United States District Court for the Eastern District of Virginia, sitting by designation. PELL, Circuit Judge. The United States appeals from a decision of the district court awarding appellee Fredric C. Muntwyler (taxpayer) a refund of $1288.30 plus interest for overpayment of taxes. The court ruled that the assignee of the assets of the taxpayer’s corporation was entitled to direct that the tax payments he made to the Internal Revenue Service (IRS) be applied to trust fund tax liabilities because the payments were voluntary. The Government contends that the payments were involuntary and thus that the IRS was not bound by the assignee’s directions and could apply the payments to non-trust fund tax liabilities. I. FACTS Fredric C. Muntwyler was the president, treasurer, director, and majority shareholder of Air Mid-America Airlines for the period relevant to this case. Air Mid-America was an Illinois corporation formed in 1968. Beginning in late 1972, the company suffered financial losses and ceased doing business in May 1973. Because of these problems, the company failed to pay certain employees’ withholding taxes (trust fund taxes) and excise taxes (non-trust fund taxes). On June 13, 1973, the company assigned all of its assets to Bernard C. Chaitman, who served as a trustee for the benefit of Air Mid-America’s creditors. Chaitman was authorized to collect debts payable to the company, sell the company’s interests in the assigned assets, and pay the claims of the company’s creditors. In August 1973, the IRS filed a claim with Chaitman for unpaid corporate taxes totalling $32,242.47, representing both trust fund and non-trust fund liabilities. On August 25, 1973, Chaitman presented three checks to the IRS, totalling $12,132.93, all of which directed that they be applied to the trust fund portion of the tax liabilities. The Service accepted the checks but refused to honor the directions for application of the money to the trust fund liability; instead, it allocated the entire amount to the non-trust fund liability. On November 3, 1976, the IRS assessed the taxpayer $18,633.21 in trust fund taxes and, on November 15, $1,030.02 in non-trust fund taxes. On April 15, 1977, the IRS credited the taxpayer’s $13,526 unrelated 1976 overpayment to the withholding liabilities. On May 5, 1977, the taxpayer paid $1288.30 toward the tax liabilities, and then filed a claim for a refund. On June 6,1980, after the IRS rejected his claim for refund of the $1288.30, the taxpayer brought this action for refund in the United States District Court for the Northern District of Illinois. On December 22,1980, the taxpayer filed a second claim for refund with the IRS, seeking to collect the $13,526 credited from his 1976 overpayment. The IRS rejected the claim and the taxpayer amended his complaint to include a claim for a refund of this money. Both parties filed motions for summary judgment. On February 26, 1982, the district court granted the appellee’s motion, holding that the assignee’s payment was voluntary and thus that the IRS should have followed his direction as to the payment. The court awarded the taxpayer $1288.30 plus interest in the amount of $550.55. The court ruled that the claim for a refund of the $13,526 in credited overpayments was barred by the statute of limitations, a ruling that the taxpayer does not contest. The Government appealed. II. VOLUNTARINESS The Internal Revenue Code directs employers to deduct and withhold a tax upon wages paid. 26 U.S.C. § 3401(a). The withheld taxes are deemed to be held in a special fund in trust for the United States, id. § 7501(a), and accordingly every person required to collect and pay over such a tax (including an officer of the corporation, like the taxpayer here, id. § 6671(b)) is personally liable for the full amount of the tax not paid, id. § 6672. An individual, like the taxpayer, is not personally liable for unpaid non-trust fund taxes. What the taxpayer sought to do in this case was to extinguish his personal liability for unpaid trust fund taxes by having the assignee direct that the payments be credited against the trust fund liability. When a taxpayer .makes voluntary payments to the IRS, he has a right to direct the application of payments to whatever type of liability he chooses. O’Dell v. United States, 326 F.2d 451, 456 (10th Cir. 1964). If the taxpayer makes a voluntary payment without directing the application of the funds, the IRS may make whatever allocation it chooses. Liddon v. United States, 448 F.2d 509, 513 (5th Cir. 1971), cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117 (1972). When a payment is involuntary, IRS policy is to allocate the payments as it sees fit. Policy Statement P-5-60, reprinted in Internal Revenue Manual (CCH) 1305-15. This rule has been uniformly followed by the courts. See, e.g., United States v. De Beradinis, 395 F.Supp. 944, 952 (D.Conn. 1975) , aff’d mem., 538 F.2d 315 (2d Cir. 1976) . Despite the appellee’s objection, we accept this rule as sensible tax policy. The sole question, therefore, is whether the district court correctly held that the assignee’s payment was voluntary. The Government’s position is that a payment is involuntary if it is made pursuant to administrative or judicial action. The Government claims that by submitting a claim for unpaid taxes to the assignee, the IRS took administrative action sufficient to make the resulting payment involuntary. The district court, by contrast, held that court involvement or administrative seizure of property was required to make a payment involuntary. A starting point for ascertaining whether the payments were voluntary is the Tax Court’s frequently cited definition of involuntary payments in Amos v. Commissioner, 47 T.C. 65, 69 (1966): “An involuntary payment of Federal taxes means any payment received by agents of the United States, as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.” The Government contends that this case falls within the Amos definition of involuntariness because the claim it filed was an administrative action, just as a levy is an administrative action. We disagree. The distinction between a voluntary and involuntary payment in Amos and all the other cases is not made on the basis of the presence of administrative action alone, but rather the presence of court action or administrative action resulting in an actual seizure of property or money as in a levy. No authorities support the proposition that a payment is involuntary whenever an agency takes even the slightest action to collect taxes, such as filing a claim or, as appears to be a logical extension of the Government’s position, telephoning or writing the taxpayer to inform him of taxes due. The strongest indication that our holding is correct is the language of the IRS policy statement on which the Government bases its claim in this ease. In discussing 26 U.S.C. § 6672, the section making a corporate officer liable for trust fund taxes, the statement says: “The taxpayer, of course, has no right of designation in the case of collections resulting from enforced collection measures.” Policy Statement P-5-60, reprinted in Internal Revenue Manual (CCH) 1305-15 (emphasis added). Use of the phrase “enforced collection measures” belies the Government’s contention that any administrative action is enough to render payment made in response to that action involuntary. We do not understand how the Government can reasonably argue that merely filing a claim for back taxes is an “enforced collection measure.” Furthermore, the cases uniformly define an involuntary payment as one made pursuant to judicial action or some form of administrative seizure, like a levy. A recent case on the subject is Arnone v. United States, 79-1 U.S. Tax Cas. (CCH) ¶9356 (N.D.Ohio 1979). There, the court held that the payment was involuntary because it was pursuant to a levy on a bank account: “[T]he plaintiff had no right to direct the application of funds obtained through enforced collection by administrative seizure.” Id. at 86,846. Similarly, the court in United States v. De Beradinis, 395 F.Supp. 944 (D.Conn.1975), aff’d mem., 538 F.2d 315 (2d Cir.1976), held that payments were involuntary where “they resulted from Internal Revenue levies or participation in litigation.” Id. at 952. Cases holding that payments made in bankruptcy are involuntary do not support the Government’s position because court action is involved. In First National City Bank v. Kline, 439 F.Supp. 726, 729 (S.D.N.Y.1977), the court held the payments involuntary, saying that “[wjhere, as here, moneys are repaid under judicial order, the court has exclusive authority to apply the funds.” Likewise, in O’Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964), the court said that a debtor could not direct application of his money to such debts as he chose “where, as here, the payment is made involuntarily as in an execution or judicial sale.” In the instant case, there was no levy, judicial order, execution, or judicial sale; rather, there was a mere filing of a claim. The Government contends that In re Bulk Sale of Inventory, 6 Kan.App.2d 579, 631 P.2d 258 (1981), supports its position that administrative action is sufficient to render a payment involuntary. In that case, the corporation turned over its assets to auctioneers, who sold them. The auctioneers then deposited the sale proceeds into the registry of a state district court and filed an interpleader action requesting that creditors of the corporation be permitted to file their claims in the court, which would determine the amount to which each was entitled. The United States filed a claim with the court for unpaid withholding taxes. The district court directed payments to the Government. 631 P.2d at 259-60. Although the Government argues that the involvement of the court was irrelevant to the Kansas court’s ruling, the language of the case shows that it was precisely the court’s involvement that was dispositive. The court said that although the debtor’s act of turning over the corporation’s assets to auctioneers was voluntary, “when the sums derived from that sale were paid into the district court and creditors were advised to file claims so that the court could decide the amount and priority to which each was entitled, the payments so ordered were involuntary.” 631 P.2d at 262 (emphasis added). Finally, the Government argues that the situation in the instant case “is in no material respect different than if ... the Government had seized corporate assets to satisfy the corporate liability or had filed a claim in a bankruptcy or receivership proceeding.” This simply is wrong. That the IRS could have seized the assets does not mandate that we hold that filing a claim is the same as seizing the property. We will not interpret “involuntary” to mean something completely at odds with the normal understanding of the term and against all authority simply to reach an arguably desirable result or to correct what may have been a mistake in collection tactics by the IRS. CONCLUSION For the foregoing reasons, the judgment of the district court is affirmed. Affirmed. . In two other cases, Liddon v. United States, 448 F.2d 509, 513 (5th Cir.1971), cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117 (1972), and Abrams v. United States, 333 F.Supp. 1134, 1140, 1145 (S.D.W.Va.1971), the courts did not reach the distinction between involuntary and voluntary payments because the taxpayers had not attempted to direct how the funds were to be applied. . The Government might have been correct in its claim if the corporation had been in bankruptcy, which it was not. An assignment for the benefit of creditors is an act of bankruptcy and presumably any creditor, including the Government, could have proceeded to file an involuntary petition for bankruptcy based thereon, but no creditor, including the Government, did so. We do not equate the assignment for the benefit of creditors with a formal bankruptcy proceeding. Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:

songer_fedlaw

D

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. Deborah WILLIAMS, Appellant, v. W. H. “Pete” McCLELLAN, Individually and in his official capacity as Clerk of the United States District Court for the Eastern District of Arkansas, Appellee. No. 77-1714. United States Court of Appeals, Eighth Circuit. Submitted Jan. 11, 1978. Decided Jan. 25, 1978. John W. Walker and Henry L. Jones, Jr., Little Rock, Ark., and Jack Greenberg, James M. Nabrit, III, and Eric Schnapper, New York City, filed brief, for appellant. W. H. Dillahunty, U. S. Atty., Little Rock, Ark., filed brief, for appellee. Before LAY, ROSS and WEBSTER, Circuit Judges. PER CURIAM. Deborah Williams, a black woman, was hired as a probationary employee by the defendant who is the Clerk of the United States District Court for the Eastern District of Arkansas. She started work as a docket clerk for United States District Court Judge Terry Shell on November 22, 1976. On April 29, 1977, the defendant told Williams that she would be terminated as of May 20, 1977. On May 13, 1977, Williams filed her complaint requesting an injunction prohibiting her termination and requiring the implementation of criteria in the court’s employment process which conform to the Constitution and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. On May 19, 1977, Williams was given written notice of her termination and the reasons therefor. Her employment terminated the following day. On July 14, 1977, the defendant filed a motion to dismiss Williams’ complaint or in the alternative a motion for summary judgment on the grounds that the complaint failed to state a cause of action and the facts asserted did not entitle the plaintiff to relief. That motion was supported by defendant’s affidavit. Williams did not respond to the motion. On August 1, 1977, the district court sustained the defendant’s motion to dismiss, stating that plaintiff failed to state a claim and under the facts could not state a claim. Plaintiff appeals. Williams’ contention on appeal is that 42 U.S.C. § 1981 prohibits employment discrimination by the federal government and 28 U.S.C. § 1343(4) gave her a cause of action when the defendant discharged her, allegedly because she is black. Williams’ complaint was filed before she was actually discharged and her requested relief, an injunction against terminating her employment, is now moot. Since she did not amend her complaint nor respond to the defendant’s motion to dismiss, we do not believe that the district court erred in dismissing the complaint with regard to the request for injunctive relief. Cf. Black Unity League v. Miller, 394 U.S. 100, 89 S.Ct. 766, 22 L.Ed.2d 107 (1969). Williams also sought an order requiring the implementation of criteria in the court’s employment process that conform with the Constitution and Title VII. Clerical positions such as that occupied by Williams are outside the competitive civil service and therefore are not covered by Title VII. See 42 U.S.C. § 2000e-16. Furthermore, the facts alleged do not support a finding of a constitutional violation. Section 751(b) of Title 28 of the United States Code provides: (b) The clerk may appoint, with the approval of the court, necessary deputies, clerical assistants and employees in such number as may be approved by the Director of the Administrative Office of the United States Courts. Such deputies, clerical assistants and employees shall be subject to removal by the clerk with the approval of the court. Since positions such as that occupied by Williams are not covered under any merit or civil service system or by employment contracts, persons in those positions have no property interest protected by due process under the Constitution. The order of the district court is affirmed. . The letter informing Deborah Williams of the termination of her employment as deputy clerk in the office of the Clerk of the United States District Court for the Eastern District of Arkansas gave the following reasons for her discharge: giving untruthful answers to questions at her initial employment interview; intentionally concealing and failing to reveal all the facts concerning the termination of her employment at Jefferson Hospital and her pending action in federal court against the hospital; failure to have a telephone installed at her residence despite continued requests that she do so; taking annual and sick leave as fast or faster than it had been earned; and other unsatisfactory areas in her work. . The Honorable John K. Regan, Senior District Judge for the Eastern District of Missouri, sitting by special assignment. Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_usc2sect

1

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 50. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". SOCIETE SUISSE POUR VALEURS DE METAUX v. CUMMINGS, Atty. Gen., et al. No. 6978. United States Court of Appeals for the District of Columbia. Argued April 11, 1938. Decided July 25, 1938. Frederic D. McKenney, John S. Flannery and G. Bowdoin Craighill, all of Washington, D. C., for appellant. Sam E. Whitaker, Asst. Atty. Gen., and Harry LeRoy Jones, Brice Toole, and Enoch E. Ellison, Attys., Department of Justice, all of Washington, D. C., for appellees. Before GRONER, Chief Justice, and STEPHENS and EDGERTON, Associate Justices. GRONER, C. J. Societe Suisse Pour Valeurs De Met-aux (called herein Swiss Corporation) filed its bill in the court below September 4, 1930, against the Attorney General (as Acting Alien Property Custodian) and the Treasurer of the United States to recover the sum of $643,595.81, which had accrued as interest on money received by the Custodian from the sale of shares of stock of American Metal Company taken over by him during the war. Metallgesellschaft ,and Metallbank, two German corporations, were at the outbreak of the war record holders of 49% of the capital stock of American Metal Company, a New York corporation. The shares were seized pursuant to the Trading with the Enemy Act, 50 U.S.C.A. Appendix § 1 et seq. and were subsequently sold by the Custodian. In September, 1921 the Custodian caused to be paid to Swiss Corporation in money and government bonds the sum of $6,967,987.-30, representing the aggregate principal amount of the sale of the shares. At the time of payment there had been no allocation of the interest accrued during the period of seizure, but subsequently under Section 15 of the Act of March 10, 1928, the Custodian set aside under two trusts the sum of $643,595.81 from that source. He declined, however, to pay this sum to Swiss Corporation because in May, 1926 the former Custodian and the former Attorney General had been indicted in the Southern District of New York for having fraudulently and unlawfully paid to Swiss Corporation the original principal sum. After the instant suit was begun the Attorney General and Treasurer filed an answer and a counterclaim. In the former they denied that any sum was due or payable to Swiss Corporation and in the latter sought restitution of the amount previously paid on the ground that the original claim was fraudulent and the money and bonds procured thereby unlawfully obtained. On motion the trial court entered an order striking the counterclaim and denying the right to cross relief. We allowed a special appeal and in June, 1936 reversed the order with instructions to the lower court to permit the counterclaim to be filed. Thereafter the cause was tried before Judge O’Donoghue, and in February, 1937 a decree was entered dismissing the bill and decreeing in favor of the United States on the counterclaim in the sum of $6,967,987.30. The findings of facts and conclusions of law were announced immediately at the close of the argument. Counsel for Swiss Corporation, excepted to the findings on the ground that they were inadequate, insufficient, and did not meet the requirements of Federal Equity Rule 70% (296 U.S. 671), 28 U.S.C.A. following section 723 and unsuccessfully urged the court, to make additional findings, and they now claim error as the result of the court’s refusal to amplify the findings. Undoubtedly the findings leave much to be desired. We have had occasion recently to emphasize the necessity of compliance with the rule (Boss v. Hardee, 68 App.D.C. 75, 93 F.2d 234), and the Supreme Court more recently still, Interstate Circuit, Inc. et al. v. United States, 304 U.S. 55, 58 S.Ct. 768, 82 L.Ed. 1146 (decided April 25, 1938), has called attention to the fact that an opinion by the trial judge is not a substitute for the required findings nor a discussion of-the evidence and the court’s reasoning in its opinion, sufficient to constitute the special and formal findings by which it is the duty of the court appropriately and specifically to determine all the issues which the case presents. In cases requiring findings of facts it is the better practice to insist that counsel for the prevailing party submit to the court and to the adverse party proposed findings. Thereafter a time should be set at which objections and proposed modifications, eliminations, or additions may be submitted and then, if necessary, a hearing had and the findings settled. In the instant case it would have been better if the findings had not been interwoven with conclusions of law and interspersed with expressions of the court’s opinion on the merits; but by disregarding the extraneous matter there is enough left to enable us to determine the issues which the case presents. As' a matter of real fact there is but a single issue involved, for in the view we take of the case, the question whether Richard Merton ■ as the representative of Swiss Corporation was privy to the bribery of Miller, the Custodian, need not be decided. So far as is involved here we shall assume that Swiss Corporation was at all times during the period of the war an alien friend. In that view if the shares of stock of the American Metal Company seized by the Custodian during the war rightfully belonged to it before April 6, 1917, the seizure was unlawful, the restitution made in 1921 was proper, and the accumulated interest allocated to the trusts should now be paid to it. Contrarily, if the stock of American company did not then belong to Swiss Corporation, but belonged to Metallbank and Metallgesellschaft, alien enemies, the payment in 1921 was in fact unlawful, whether induced by bribery or not. And this brings us to a consideration of the evidence. Metallgesellschaft was formed in 1881 under the laws of Germany as a trading company in metals. It was organized and controlled by the Merton family. Metallbank was formed prior to the war, also by the Merton family, with the idea of keeping separate the industrial and financial sides of the family business. The boards of the two companies were much the same, and Richard Merton was managing director of Metallgesellschaft, and his father of Metallbank. On the death of his father, Richard became chairman of the board of Metallbank. Swiss Corporation was organized in 1910, mainly by the elder Merton, as a holding company, and it acquired by purchase from the two German companies several million dollars of their capital shares. The latter companies held 51% of the capital of Swiss Corporation at all times during the period with which we are concerned. Long prior to the World War the two German companies acquired 49% of the capital stock of American Metal Company. The share certificates were deposited for the account of the German corporations with the American corporation at its New York office. After the United States entered the war the president of American company reported this enemy ownership of stock to the Alien Property Custodian, who took possession of the certificates under the Trading with the Enemy Act (40 Stat. 411, 50 U.S.C.A. Appendix § 1 et seq.). The stocks were subsequently sold by the Custodian. Richard Merton came to the United States in March, 1921 and consulted Mr. Dulles, a New York lawyer, relative to filing a claim in the name of Swiss Corporation for the fund held by the Custodian. Dulles went to Washington and made an investigation and informed Merton that the claim would not b§ allowed without litigation. Merton thereafter met John T. King, a Connecticut politician, whom he interested in the case, and through King he was introduced to Jess Smith, of Ohio, a friend of the then Attorney General, and to Miller, the Custodian. By this means Merton had an interview with George E. Williams of the Custodian’s office and obtained the information which he thought necessary in the preparation of the claim of Swiss Corporation. He then returned to Europe and later brought back with him to this country the prepared claim papers which were submitted to the Custodian through either King or Smith. One or the other told Merton “that he had put up the claim in the wrong way” and not as he had been told, as the result of which he asked for and had a further conference with Williams to find out what was wrong. Williams apparently explained that the papers as prepared showed a “debt claim” rather than an “ownership claim” to the seized property and for that reason could not be allowed. Merton was permitted to withdraw the papers and to take them with him to Switzerland for redrafting. He returned to Washington with the new claim papers the last of August or the first of September, 1921, and within two or three days after their delivery to the Custodian he was notified by either King or Smith that the claim had been allowed; and at the suggestion of Smith or King a dinner party was arranged at the Ritz-Carlton in New York City, attended by Merton, Miller, Smith, and King. At that time treasury checks in the amount of approximately six and a half million dollars were delivered to Merton, followed by the delivery the next day or the day after of Liberty Bonds in the amount of approximately $500,000. Merton paid King for his services about $400,000 in government bonds, — having previously paid him $50,000 in cash, — and a week or ten days later returned to Europe., In 1926 Miller, Attorney General Daugherty, and King were indicted on account of the transaction just described, for violation of Section 37 of the Criminal Code, 18 U.S.C.A. § 88. King died, Miller was convicted, and the jury disagreed as to Daugherty. Miller appealed, and the judgment of conviction was affirmed February 6, 1928. In the criminal trial Merton testified as a witness for the United States, insisting in his testimony, however, that he had never authorized King or Smith to make any payments to any officials of government to expedite or to allow the claim. Thus the matter remained until the present suit was begun. The United States insist that Swiss Corporation never was owner of the American Metal Company stock, but that the shares belonged at all times to the two German companies; that the statement of claim of Swiss Corporation filed and allowed in 1921 by the Custodian was false and fraudulent; and that its allowance was obtained by bribery. Swiss Corporation, on the other hand, insists that it acquired the stock by assignment prior, to the entry of the United States into the World War; that it was entitled to make the claim; that the United States' have wholly failed in this case to prove that its claim was fraudulent; and that in any case the allowance of the claim by the Attorney General was final. But in the view we take of this caseJ the government was not required to prove that the claim made in 1921 was fraudulent, — for the reason that Swiss Corporation was entitled to the money it received only if it was, prior to the commencement of the war, the owner of the American company stock. The answer to this question will, without more, determine whether the government may now prevail on its counterclaim. And this brings us back to the point from which we started. The trial in the court below was on depositions and oral testimony. Ordinarily we should be satisfied to follow the general rule and accept the findings unless clearly wrong. Hearst Radio, Inc. v. Good, 67 App.D.C. 250, 91 F.2d 555. In view, however, of the important nature of the deposition and documentary evidence, we have considered it our duty to weigh the whole evidence, for as to the former we are as able to determine its effect as was the trial court. Photoplay Pub. Co. v. La Verne Pub. Co., 3 Cir., 269 F. 730, 732. We find here a case in which a Swiss company secured payment of a supposedly valid claim to seized property by representing that it was the lawful owner. As we have already said, if it really was not the lawful owner, it was not entitled to the money it received. Not being satisfied with what it got by the allowance of its claim, it brought this suit in order to compel the government to pay over to it the retained interest accumulation. In our decision on the former appeal, we said: “When the corporation brought this suit, it invited the court to which it submitted itself to go behind the settlement, and at the instance of the United States, the real parties in interest, to re-examine all the questions arising out of the original claim.” We think this is a correct statement of the law, and hence that the United States are not foreclosed by the action of the former Attorney General. McElrath v. United States, 102 U.S. 426, 440, 441, 26 L.Ed. 189. Swiss Corporation insists that the United States, as the parties alleging fraud,must prove it by clear, unequivocal, and convincing testimony, and that such proof will not arise from a bare preponderance of evidence which leaves the issue in doubt. But we think the rule is not applicable in the view we have taken of the case and in the narrow limits to which we have confined it. Here, as we have seen, the question is: — Were the shares of stock the property of Swiss Corporation ? If not, the only answer is that Swiss ’ Corporation was not entitled to receive the proceeds of their sale. And so the question of actual fraud may be said to be out of the case. We go far enough when we hold, as we do, that the United States as to the counterclaim had the burden throughout. As we understand the evidence and the arguments, the case for Swiss Corporation is as follows: The German corporations owned the American 'company stock prior to 1910. In that year those two corporations desired to increase their capital and to strengthen their cash position and accordingly formed the Swiss Corporation and sold to it large blocks of their own stocks. At the time of these sales “representatives” of the German corporations exhibited to Swiss Corporation their financial statements for the purpose' of showing the value of their stocks, and as an inducement to the purchase. On the strength of these representations and on its holdings of - the German corporations’ stocks, the Swiss Corporation issued debentures which were sold to the public. In March, 1916, because of the depression resulting from the war, the Swiss Corporation called upon the German corporations for assurances of the value of their stocks, and the German corporations thereupon orally acknowledged their obligations and orally referred to their holdings of American company stock as evidence of continuing value. Later,' and in consequence of further depreciation, negotiations were resumed between the Swiss and German corporations in February and - March, 1917 (a time when the United States and Germany had severed diplomatic relations), - and the German corporations verbally transferred to the - Swiss Corporation their -interest in the American company stock. All these things are said to have happened in Switzerland, where the agreements were to be performed. Accordingly, it is contended that the Swiss law governs their validity, and that under’ Swiss law a verbal guaranty of the value of stock and a verbal transfer of ownership of stock are valid and enforceable, — so that before the United States entered the war the Swiss Corporation was legal owner of the American company stock. This, we say, is the story which Swiss Corporation told in its claim papers and in the annexed and supporting affidavits which it submitted to the court below, including the expert opinion certificate of the Swiss lawyer, and on the strength of the case thus made it insists the payment in 1921 was lawful and proper. Looking at the other side, we find that attached to the claim paper was a writing, called a cession, dated November 20, 1919, — after the war ended, — in the following words: “The Metallbank and the Metallgesellschaft do hereby assign to the Swiss Bank Corporation [fiscal agent for Swiss Corporation] all their claims to the payment of the dividends and interests paid to the Custodian and their claims to the payment of the proceeds of the sale or future sale of said shares, which claims they have against the Custodian or the Government of' the United States of America or against any person who is liable for the payment of the sums received by the Custodian.” Swiss Corporation contends this cession was a confirmation of the verbal transfer, although nowhere in it is any reference made to a prior transaction, verbal or written. Further, there was evidence submitted to the lower court, oral and documentary, showing that early in 1918, when the seizure of the American company stock by the Custodian was imminent, Julian B. Beaty and Henry Bruere, Treasurer and Vice-President of the American company, suggested to the Custodian the possibility of purchasing the interest of the German companies; and that in May, 1918, under licenses permitting them to trade with the enemy, they went to Switzerland and negotiated to that end with Alfred Merton, George Schwartz, and Rudolph Euler, representing the German companies. The parties framed a contract, in the presence of representatives of the Swiss Corporation, wherein the German companies were described as owners of the American company stock in question and whereby they agreed to sell it to Beaty and Bruere. The purchase money, however, was not to be paid over to the German corporations until the close of the war. Because the consent of the United States government to the sale could not be obtained, the transaction was abandoned. Other evidence submitted below showed that when the Swiss Corporation first sought to collect the proceeds of the sale of the American company stock from the Custodian it wrote (Dec. 1920) to Mr. Dulles, an attorney, and told him that it had acquired its claim on November 20, 1919 (the date of the cession), from the German companies. With this brief summary of a part of the evidence introduced below, we turn to the findings of the trial court, which were: 1. Before the year 1910 the stock of the American company was owned by the two German companies. 2. The two German companies have nothing in their minutes with regard to the alleged oral guaranty or the alleged oral transfer of the American company stock and the Swiss company has nothing in its minutes in regard to those two transactions. The German companies filed their annual reports and accounts, as required by law, during several years after 1910 and before 1920, therein expressly or impliedly indicating that the American company stock still belonged to them. 3. In 1918, after the Alien Property Custodian had seized the American company stock, the two German companies entered into a formal contract for the sale of the American company stock, putting themselves in the position of the owners thereof. The terms and conditions of this contract were known to Swiss Corporation and to some of its officers but Swiss Corporation asserted no claim to the stock and allowed the German companies to act as the owners thereof. This agreement fell through. 4. Later in 1918 the Alien Property Custodian sold the American company stock which he had seized. 5. In November 1919 the German companies executed a written assignment, transferring or undertaking to transfer to Swiss Corporation’s fiscal agent the American company stock or the proceeds of the sale thereof that were held by the Alien Property Custodian. This assignment did not mention the alleged oral guaranties of 1910 or 1912, nor did it purport to be a confirmation of the transfer of the American company stock to Swiss Corporation in March 1917, nor did it state that in consideration of the assignment the German companies were being released from their guaranties. 6. In 1920 Swiss Corporation employed New York counsel in connection with its supposed claim and informed that counsel that it became the owner of the American company stock, or the proceeds of the sale thereof, by the assignment of November, 1919. Swiss Corporation did not mention to its counsel the guaranties of 1910 or 1912, or any transfer of the title or interest in this stock in March 1917. On the basis of these evidential facts the court made a conclusion of law and fact: — ■ that the title of the American company stock did not pass from the German companies to Swiss Corporation and that in 1921, when Swiss Corporation secured allowance of its claim, the German companies owned the stock. The attempted assignment of 1919 was ineffectual because it could not operate on property seized and held by the Custodian. Are these findings supported by the evidence and are they sufficient to support the conclusions reached by the trial court ? We think they are. We shall refer later to other matter which the trial judge did not mention, and which in our opinion strengthens the grounds of his holding Some objections to parts of the evidence upon which the findings are based were made below and have been argued here; but we shall not discuss them because we are convinced they are technical and, in or out of the record, do not affect the result. In final analysis Swiss Corporation’s contention is that its evidence is true, that the oral guaranties and the oral transfer of the American company stock were really made just as it says they were made. If we had before us nothing but the evidence of Swiss Corporation as it was revealed to the administrative officers of government in the claim papers, and if we could assume that the asserted verbal agreement to transfer the shares was the valid act of the German corporations and was enforceable under German and Swiss law, we might easily reach a different conclusion from that which we have expressed above. But the contrary of all of this is the case. The government, as we have pointed out, has brought to light positive evidence of acts and conduct inconsistent with the story which Swiss Corporation tells; there is no proof of acts of the German corporations which would justify our holding that there was valid corporate action authorizing a verbal transfer; and there is no proof of German law and- insufficient proof of Swiss law upon which to declare that the alleged verbal transfer was binding and enforceable. Hence we must make our decision upon more than the statements found in the claim papers, and viewed in this aspect we are unable to find any evidence that at any time prior to the seizure was Swiss Corporation the true and lawful owner of .the American company stock. On the contrary, we are of opinion that the finding of the lower court, that not until November 20," 19Í9, did the German corporations, undertake to assign to Swiss Corporation their interest in the American company stock, is sustained by a preponderance of the evidence. In all that we have said heretofore it has been assumed that under the Trading with the Enemy Act no assignment by an enemy alien of property in the hands of the Custodian was valid so as to create title in -the assignee unless the assignment was made prior to the time the United States, entered the war. We think this is a correct assumption. Schrijver v. Sutherland, 57 App.D.C. 214, 19 F.2d 688; Sturchler v. Hicks, D.C.N.Y., 17 F.2d 321. Swiss Corporation, while admitting the correctness of the rule, says it has no applicability here because, though the written assignment of November 20, 1919, was executed after the property had been seized and was in the hands of the Custodian, the previous transactions between the German' companies and itself, which it claims began in 1910, continued through 1917, and were consummated in 1919, created definite rights in the property as to which the 1919 writing is merely the evidence. The lower court rejected this contention, and we think correctly: First, because we think the evidence shows that the representations which it is claimed were made in 1910 by the German corporations were nothing more than assurances of the sound value of the shares which Swiss Corporation acquired. The supporting affidavit states that, before the sale took place, the representatives of the German corporations did at various times declare that they guaranteed the value of the shares and the amount of the dividends of such shares and stated particularly that the real value of the shares was more than the price asked. But the “representatives” referred to in this affidavit could have been no others than the Merton family, who then controlled both corporations. There is no showing of formal corporate action, and there is a total absence of any writing or even a minute in the German or Swiss corporations’ . records by which the corporations themselves could be bound. Furthermore, in view of the testimony of experts on German law that a corporation could not lawfully guarantee the value of its own stock, we think it would be unjustifiable to assume, in the very teeth of the German law forbidding it, that the German corporations made a binding guaranty. We are fortified in this conclusion by the published statements of the boards of the companies in April, 1910, issued to facilitate sale of the Swiss Corporation’s debentures, and which go no further than to state the opinion that the shares they were selling were amply secured because of the German corporations’ sound financial condition and the fact that the dividends paid over the previous five years on the German corporations’ stocks were three times more than was necessary to pay interest on the.debentures. The subsequent proceedings described by Zahn-Geigy are to the effect that in 1916 the representatives of the German corporations agreed that the holdings of those companies in the American company should serve as security for their previous representation of value, and that in 1917 they stated that they would hold their interest in the stocks of the American company to provide against a loss to Swiss Corporation. Though we were to regard this statement as a deliberate attempt on the part of these “representatives” to transfer title to the shares, it would still be true that we have no record of any corporate act authorizing or ratifying the transfer, and equally it would still be true that under German law no such transfer could lawfully be made. On the other hand, in the report of the German companies covering the business year October 1, 1917, to September 30, 1918, the statement is made to stockholders that “our stock” in the American Metal Company, including the dividends declared and 'paid since the war began, remain in the hands of the American trustee for enemy property. This statement is inconsistent with the present position of Swiss Corporation that in 1916 and in 1917 the German companies had by verbal agreement transferred their entire interest in those stocks to it. We think it beyond question that, if a seller in a supposed sale continues to hold itself out as being still the owner of the property in question, considerable doubt is thrown on the buyer’s claim of title. And so again, the agreement of sale of the 11th of May, 1918, to American interests was made and entered into on the written assurance by the German corporations to Bruere and Beaty that the German corporations were the owners of the stock and were fully authorized to make the sale. And, finally, the written agreement made in November, 1919 is a complete document within itself. It recites the ownership of the American Metal Company stock by the German corporations, the accretion due to the issuance of new shares by the American company, and states that in 1917 by reason of these accretions the total number of shares held by both corporations since 1917 is 31,570 shares. And the proceeds of the sale of all the shares are by that instrument assigned to Swiss Corporation. But this was done long after the seizure and at a time when an assignment was ineffective. On the whole case we think the facts we have just outlined overcome the prima facie case made by Swiss Corporation and establish as clearly as a matter of this kind is capable of being established, the falsity of the claim that there was an actual transfer of the interest in the American Metal Company stock prior to November 20, 1919. In reaching this conclusion we have not found it necessary to determine the correctness of the claim of Swiss Corporation that a verbal agreement of transfer of stocks, without delivery of the certificates, by a German corporation to a Swiss corporation is as valid as a written agreement. We do comment in passing, however, on the testimony of all the experts on foreign law to the effect that under the laws of Germany it was unlawful for Metallbanlc and Metallgesellschaft to transfer any of their securities or assets to a foreign corporation during the period of the war, and we should be very slow to hold that those corporations had attempted to do so, — certainly that they had done so,- — by a verbal representation on the part of their “representatives”. In addition to this, — and as we have pointed out above, —there is the testimony that a German corporation cannot lawfully guarantee the value of its own stock. Whether a Swiss court would enforce such a guaranty if it had jurisdiction of the parties is a matter beside the point; for we regard the illegality of the alleged transaction as merely another reason for concluding that it did not in fact take place. In saying this we are not unmindful, of course, that what Swiss Corporation claims was done could, factually, have been done. But if it was done, with the intent said to have accompanied the transaction, then not only did the corporations concerned act unlawfully, but their other contrary acts and conduct arc virtually inexplicable. Because of the nature of the case and of the positions which the parties have taken, we must decide the controversy on the strength of 'that evidence which not only is the subject of the more convincing proof but also has the greater probative force. Upon the whole record we think there can be no doubt that during the period involved here the German companies and not Swiss Corporation owned the American company stock. We think there is no basis for the claim of laches on the part of the government. No rule is better established than that the United States are not bound by limitations or barred by laches where they are asserting a public right. United States v. Beebe, 127 U.S. 338, 8 S.Ct. 1083, 32 L.Ed. 121; United States v. Porto Rico Fruit Union, 1 Cir., 12 F.2d 961, 962. Here the United States are not seeking the. return of money unlawfully paid “as a, mere conduit of title for private persons”, as counsel suggest. The property and money delivered to Swiss Corporation in 1921 was, in our opinion, enemy property, and it is settled that under the Trading with the Enemy Act enemy property after seizure belonged to the United States to be' disposed of as they pleased. Cummings v. Deutsche Bank, 300 U.S. 115, 57 S.Ct. 359, 81 L.Ed. 545. The contention is urged by Swiss Corporation that, if its “ownership” claim is rejected, recovery is still sustainable on the theory that the German companies were liable to Swiss Corporation on the guaranty, — that is to say, that recovery may be had as on a “debt” claim. We think the preceding discussion amply disposes of this contention, for in our view of the case the one claim must fall with the other. Affirmed. 45 Stat. 254, 273, 50 U.S.C.A.Appendix § 26 et seq. 66 App.D.C. 121, 85 F.2,d 287. Miller v. United States, 2 Cir., 24 F. 2d 353. Schrijver v. Sutherland, 57 App.D.C. 214, 19 F.2d 688. Public Motor Service, Inc. v. Standard Oil Company, 69 App.D.C. 89, 99 F.2d 124, decided by‘ us June 20. 1938; Maxwell Land-Grant Case, 121 U.S. 325, 381, 7 S.Ct. 1015, 30 L.Ed. 949; Equitable Life Assur. Soc. v. Johnson, 6 Cir., 81 F.2d 543. 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 50? Answer with a number. Answer:

sc_adminaction_is

A

What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. BABBITT, GOVERNOR OF ARIZONA, et al. v. UNITED FARM WORKERS NATIONAL UNION et al. No. 78-225. Argued February 21, 1979 — Decided June 5, 1979 White, J., delivered the opinion for the Court, in which Burger, C. J., and Stewart, BlackmuN, Powell, Rehnquist, and SteveNS, JJ., joined. BrenNAN, J., filed an opinion concurring in part and dissenting in part, in which Marshall, J., joined, post, p. 314. Rex E. Lee, Special Assistant Attorney General of Arizona, argued the cause for appellants. With him on the briefs were Robert Corbin, Attorney General, John A. LaSota, Jr., former Attorney General, Charles E. Jones, Jon L. Kyi, and John B. Weldon, Jr. Jerome Cohen argued the cause for appellees. With him on the brief was James Rutkowski ;Joseph Herman filed a brief for the Agricultural Producers Labor Committee et al. as amici curiaé urging reversal. Briefs of amici curiae urging affirmance were filed by Mark D. Rosen-baum, Fred Okrand, and Dennis M. Perluss for the American Civil Liberties Union Foundation of Southern California et al.; and by J. Albert Woll and Laurence Gold for the American Federation of Labor and Congress of Industrial Organizations. Marvin J. Brenner and Ellen Lake filed a brief for the Agricultural Labor Relations Board as amicus curiae. Mr. Justice White delivered the opinion of the Court. In this case we review the decision of a three-judge District Court setting aside as unconstitutional Arizona’s farm labor statute. The District Court perceived particular constitutional problems with five provisions of the Act; deeming these provisions inseparable from the remainder of the Act, the court declared the entire Act unconstitutional and enjoined its enforcement. We conclude that the challenges to two of the provisions specifically invalidated did not present a case or controversy within the jurisdiction of a federal court and hence should not have been adjudicated. Although the attacks on two other provisions were justiciable, we conclude that the District Court should have abstained from deciding the federal issues posed until material, unresolved questions of state law were determined by the Arizona courts. Finally, we believe that the District Court properly reached the merits of the fifth provision but erred in invalidating it. Acordingly, we reverse the judgment of the District Court. I In 1972, the Arizona Legislature enacted a comprehensive scheme for the regulation of agricultural employment relations. Arizona Agricultural Employment Relations Act, Ariz. Rev. Stat. Ann. §§23-1381 to 23-1395 (Supp. 1978). The statute designates procedures governing the election of employee bargaining representatives, establishes various rights of agricultural employers and employees, proscribes a range of employer and union practices, and establishes a civil and criminal enforcement scheme to ensure compliance with the substantive provisions of the Act. Appellees — the United Farm Workers National Union (UFW), an agent of the UFW, named farmworkers, and a supporter of the UFW — commenced suit in federal court to secure a declaration of the unconstitutionality of various sections of the Act, as well as of the entire Act, and an injunction against its enforcement. A three-judge District Court was convened to entertain the action. On the basis of past instances of enforcement of the Act and in light of the provision for imposition of criminal penalties for “violation of] any provision” of the Act, Ariz. Rev. Stat. Ann. § 23-1392 (Supp. 1978), the court determined that appellees’ challenges were presently justiciable. Reaching the merits of some of the claims, the court ruled unconstitutional five distinct provisions of the Act. Specifically, the court disapproved the section specifying election procedures, § 23-1389, on the ground that, by failing to account for seasonal employment peaks, it precluded the consummation of elections before most workers dispersed and hence frustrated the associational rights of agricultural employees. The court was also of the view that the Act restricted unduly the class of employees technically eligible to vote for bargaining representatives and hence burdened the workers’ freedom of association in this second respect. The court, moreover, ruled violative of the First and Fourteenth Amendments the provision limiting union publicity-directed at consumers of agricultural products, § 23-1385 (B)(8), because as it construed the section, it proscribed innocent as well as deliberately false representations. The same section was declared infirm for the additional reason that it prohibited any consumer publicity, whether true or false, implicating a product trade name that “may include” agricultural products of an employer other than the employer with whom the protesting labor organization is engaged in a primary dispute. The court also struck down the statute’s criminal penalty provision, § 23-1392, on vagueness grounds, and held unconstitutional the provision excusing the employer from furnishing to a labor organization any materials, information, time, or facilities to enable the union to communicate with the employer’s employees. § 23-1385 (C). The court thought that the latter provision permitted employers to prevent access by unions to migratory farmworkers residing on their property, in violation of the guarantees of free speech and association. Finally, the court disapproved a provision construed as mandating compulsory arbitration, § 23-1393 (B), on the ground that it denied employees due process and the right to a jury trial, which the District Court found guaranteed by the Seventh Amendment. The remainder of the Act fell “by reason of its inseparability and inoperability apart from the provisions found to be invalid.” 449 F. Supp. 449, 467 (Ariz. 1978). Appellants sought review by this Court of the judgment below. Because of substantial doubts regarding the justicia-bility of appellees’ claims, we postponed consideration of our jurisdiction to review the merits. 439 U. S. 891 (1978). We now hold that, of the five provisions specifically invalidated by the District Court, only the sections pertaining to election of bargaining representatives, consumer publicity, and imposition of criminal penalties are susceptible of judicial resolution at this time. We further conclude that the District Court should have abstained from adjudicating appellees’ challenge to the consumer publicity and criminal penalty provisions, although we think the constitutionality of the election procedures was properly considered even lacking a prior construction by the Arizona courts. We are unable to sustain the District Court’s declaration, however, that the election procedures are facially unconstitutional. II We address first the threshold question whether appellees have alleged a case or controversy within the meaning of Art. Ill of the Constitution or only abstract questions not currently justiciable by a federal court. The difference between an abstract question and a “case or controversy” is one of degree, of course, and is not discernible by any precise test. See Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941). The basic inquiry is whether the “conflicting contentions of the parties . . . present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.” Railway Mail Assn. v. Corsi, 326 U. S. 88, 93 (1945); see Evers v. Dwyer, 358 U. S. 202, 203 (1958); Maryland Casualty Co. v. Pacific Coal & Oil Co., supra. A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement. O’Shea v. Littleton, 414 U. S. 488, 494 (1974). But “[o]ne does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough.” Pennsylvania v. West Virginia, 262 U. S. 553, 593 (1923); see Regional Rail Reorganization Act Cases, 419 U. S. 102, 143 (1974); Pierce v. Society of Sisters, 268 U. S. 510, 526 (1925). When contesting the constitutionality of a criminal statute, “it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415 U. S. 452, 459 (1974); see Epperson v. Arkansas, 393 U. S. 97 (1968); Evers v. Dwyer, supra, at 204. When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Doe v. Bolton, 410 U. S. 179, 188 (1973). But “persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.” Younger v. Harris, 401 U. S. 37, 42 (1971); Golden v. Zwickler, 394 U. S. 103 (1969). When plaintiffs “do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible,” they do not allege a dispute susceptible to resolution by a federal court. Younger v. Harris, supra, at 42. Examining the claims adjudicated by the three-judge court against the foregoing principles, it is our view that the challenges to the provisions regulating election procedures, consumer publicity, and criminal sanctions — but only those challenges — present a case or controversy. As already noted, appellees’ principal complaint about the statutory election procedures is that they entail inescapable delays and so preclude conducting an election promptly enough to permit participation by many farmworkers engaged in the production of crops having short seasons. Appellees also assail the assert-edly austere limitations on who is eligible to participate in elections under the Act. Appellees admittedly have not invoked the Act’s election procedures in the past nor have they expressed any intention of doing so in the future. But, as we see it, appellees’ reluctance in this respect does not defeat the justiciability of their challenge in view of the nature of their claim. Appellees insist that agricultural workers are constitutionally entitled to select representatives to bargain with their employers over employment conditions. As appellees read the statute, only representatives duly elected under its provisions may compel an employer to bargain with them. But appellees maintain, and have adduced evidence tending to prove, that the statutory election procedures frustrate rather than facilitate democratic selection of bargaining representatives. And the UFW has declined to pursue those procedures, not for lack of interest in representing Arizona farmworkers in negotiations with employers, but due to the procedures’ asserted futility. Indeed, the UFW has in the past sought to represent Arizona farmworkers and has asserted in its complaint a desire to organize such workers and to represent them in collective bargaining. Moreover, the UFW has participated in nearly 400 elections in California under procedures thought to be amenable to prompt and fair elections. The lack of a comparable opportunity in Arizona is said to impose a continuing burden on appellees’ associational rights. Even though a challenged statute is sure to work the injury alleged, however, adjudication might be postponed until “a better factual record might be available.” Regional Rail Reorganization Act Cases, supra, at 143. Thus, appellants urge that we should decline to entertain appellees’ challenge until they undertake to invoke the Act’s election procedures. In that way, the Court might acquire information regarding how the challenged procedures actually operate, in lieu of the predictive evidence that appellees introduced at trial. We are persuaded, however, that awaiting appellees’ participation in an election would not assist our resolution of the threshold question whether the election procedures are subject to scrutiny under the First Amendment at all. As we regard that question dispositive to appellees’ challenge — as elaborated below — we think there is no warrant for postponing adjudication of the election claim. Appellees’ twofold attack on the Act’s limitation on consumer publicity is also justiciable now. Section 23-1385 (B) (8) makes it an unfair labor practice “[t]o induce or encourage the ultimate consumer of any agricultural product to refrain from purchasing, consuming or using such agricultural product by the use of dishonest, untruthful and deceptive publicity.” And violations of that section may be criminally punishable. § 23-1392. Appellees maintain that the consumer publicity provision unconstitutionally penalizes inaccuracies inadvertently uttered in the course of consumer appeals. The record shows that the UFW has actively engaged in consumer publicity campaigns in the past in Arizona, and appellees have alleged in their complaint an intention to continue to engage in boycott activities in that State. Although appellees do not plan to propagate untruths, they contend— as we have observed — that “erroneous statement is inevitable in free debate.” New York Times Co. v. Sullivan, 376 U. S. 254, 271 (1964). They submit that to avoid criminal prosecution they must curtail their consumer appeals, and thus forgo full exercise of what they insist are their First Amendment rights. It is urged, accordingly, that their challenge to the limitation on consumer publicity plainly poses an actual case or controversy. Appellants maintain that the criminal penalty provision has not yet been applied and may never be applied to commissions of unfair labor practices, including forbidden consumer publicity. But, as we have noted, when fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative a plaintiff need not “first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute.” Steffel v. Thompson, 415 U. S., at 459. The consumer publicity provision on its face proscribes dishonest, untruthful, and deceptive publicity, and the criminal penalty provision applies in terms to “[a]ny person . . . who violates any provision” of the Act. Moreover, the State has not disavowed any intention of invoking the criminal penalty provision against unions that commit unfair labor practices. Appellees are thus not without some reason in fearing prosecution for violation of the ban on specified forms of consumer publicity. In our view, the positions of the parties are sufficiently adverse with respect to the consumer publicity provision proscribing misrepresentations to present a case or controversy within the jurisdiction of the District Court. Section 23-1385 (B) (8) also is said to limit consumer appeals to those directed at products with whom the labor organization involved has a primary dispute; as appellees construe it, it proscribes “publicity directed against any trademark, trade name or generic name which may include agricultural products of another producer or user of such trademark, trade name or generic name” Appellees challenge that limitation as unduly restricting protected speech. Ap-pellees have in the past engaged in appeals now arguably prohibited by the statute and allege an intention to continue to do the same. For the reasons that appellees’ challenge to the first aspect of the consumer publicity provision is justiciable, we think their claim directed against the second aspect may now be entertained as well. We further conclude that the attack on the criminal penalty provision, itself, is also subject to adjudication at this time. Section 23-1392 authorizes imposition of criminal sanctions against “'[a]ny person . . . who violates any provision” of the Act. Appellees contend that the penalty provision is unconstitutionally vague in that it does not give notice of what conduct is made criminal. Appellees aver that they have previously engaged, and will in the future engage, in organizing, boycotting, picketing, striking, and collective-bargaining activities regulated by various provisions of the Act. They assert that they cannot be sure whether criminal sanctions may be visited upon them for pursuing any such conduct, much of which is allegedly constitutionally protected. As we have noted, it is clear that appellees desire to engage at least in consumer publicity campaigns prohibited by the Act; accordingly, we think their challenge to the precision of the criminal penalty provision, itself, was properly entertained by the District Court and may be raised here on appeal. If the provision were truly vague, appellees should not be expected to pursue their collective activities at their peril. Appellees’ challenge to the access provision, however, is not justiciable. The provision, § 23-1385 (C), stipulates that “[n]o employer shall be required to furnish or make available to a labor organization . . . information, time, or facilities to enable such . . . labor organization ... to communicate with employees of the employer, members of the labor organization, its supporters, or adherents.” Appellees insist, and the District Court held, that this provision deprives the Arizona Employment Relations Board — charged with responsibility for enforcing the Act — -of any discretion to compel agricultural employers to furnish materials, information, time, or facilities to labor organizations desirous of communicating with workers located on the employers’ property and that the section for this reason violates the First and Fourteenth Amendments to the Constitution. It may be accepted that the UFW will inevitably seek access to employers’ property in order to organize or simply to communicate with farmworkers. But it is conjectural to anticipate that access will be denied. More importantly, appellees’ claim depends inextricably upon the attributes of the situs involved. They liken farm labor camps to the company town involved in Marsh v. Alabama, 326 U. S. 501 (1946), in which the First Amendment was held to operate. Yet it is impossible to know whether access will be denied to places fitting appellees’ constitutional claim. We can only hypothesize that such an event will come to pass, and it is only on this basis that the constitutional claim could be adjudicated at this time. An opinion now would be patently advisory; the adjudication of appellees’ challenge to the access provision must therefore await at least such time as appellees can assert an interest in seeking access to particular facilities as well as a palpable basis for believing that access will be refused. Finally, the constitutionality of the allegedly compulsory arbitration provision was also improperly considered by the District Court. That provision specifies that an employer may seek and obtain an injunction “upon the filing of a verified petition showing that his agricultural employees are unlawfully on strike or are unlawfully conducting a boycott, or are unlawfully threatening to strike or boycott, and that the resulting cessation of work or conduct of a boycott will result in the prevention of production or the loss, spoilage, deterioration, or reduction in grade, quality or marketability of an agricultural commodity or commodities for human consumption in commercial quantities.” § 23-1393 (B). If an employer invokes a court’s jurisdiction to issue a temporary restraining order to enjoin a strike, the employer “must as a condition thereto agree to submit the dispute to binding arbitration as the means of settling the unresolved issues.” And if the parties cannot agree on an arbitrator, the court must appoint one. On the record, before us, there is an insufficiently real and concrete dispute with respect to application of this provision. Appellees themselves acknowledge that, assuming an arguably unlawful strike will occur, employers may elect to pursue a range of responses other than seeking an injunction and agreeing to arbitrate. Moreover, appellees have never contested the constitutionality of the arbitration clause. They declare that “[t]he three judge court below on its own motion found the binding arbitration provision of § 1393 (B) viola-tive of substantive due process and the Seventh Amendment.” Brief for Appellees 71 n. 153. Appellees, instead, raised other challenges to the statute’s civil enforcement scheme, which we do not consider on this appeal. See n. 10, supra. It is clear, then, that any ruling on the compulsory arbitration provision would be wholly advisory. Ill Appellants contend that, even assuming any of appellees’ claims are justiciable, the District Court should have abstained from adjudicating those claims until the Arizona courts might authoritatively construe the provisions at issue. We disagree that appellees’ challenge to the statutory election procedures should first be submitted to the Arizona courts, but we think that the District Court should have abstained from considering the constitutionality of the criminal penalty provision and the consumer publicity provision pending review by the state courts. As we have observed, “'[ajbstention . . . sanctions . . . escape [from immediate decision] only in narrowly limited “special circumstances.” ’ ” Kusper v. Pontikes, 414 U. S. 51, 54 (1973), quoting Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498, 509 (1972). “The paradigm of the 'special circumstances’ that make abstention appropriate is a case where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutional question.” Kusper v. Pontikes, supra, at 54; see Zwickler v. Koota, 389 U. S. 241, 249 (1967); Harrison v. NAACP, 360 U. S. 167, 176-177 (1959); Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941). Of course, the abstention doctrine “contemplates that deference to state court adjudication only be made where the issue of state law is uncertain.” Harman v. Forssenius, 380 U. S. 528, 534 (1965). But when the state statute at issue is “fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question,” id., at 535, abstention may be required “in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication,” id., at 534. We think that a state-court construction of the provision governing election procedures would not obviate the need for decision of the constitutional issue or materially alter the question to be decided. As we shall discuss, our resolution of the question whether the statutory election procedures are affected with a First Amendment interest at all is dispositive of appellees’ challenge. And insofar as it bears on that matter, the statute is pointedly clear. Accordingly, we perceive no basis for declining to decide appellees’ challenge to the election procedures, notwithstanding the absence of a prior state-court adjudication. We conclude, however, that the District Court should have postponed resolution of appellees’ challenge to the criminal penalty provision. That section provides in pertinent part that “[a]ny person . . . who violates any provision of [the Act] is guilty of a . . . misdemeanor.” § 23-1392. Ap-pellees maintain that the penalty provision leaves substantial doubt regarding what activities will elicit criminal sanctions. The District Court so concluded, observing that “[ considering the enormous variety of activities covered by the Act, [the penalty section] is clearly a statutory provision so vague that men of common intelligence can only guess at its meaning.” 449 F. Supp., at 453. The court elaborated: “There is no way for anyone to guess whether criminal provisions will apply to any particular conduct, in advance, and it is clear that the statute is unconstitutionally vague and does not adequately define prohibited conduct and is, therefore, in violation of the due process clause of the Fourteenth Amendment.” Ibid. Appellants, themselves, do not argue that the criminal penalty provision is unambiguous. Indeed, they insist that until the provision is enforced “it is impossible to know what will be considered a 'violatio[n]’ of the Act.” Brief for Appellants 37. Appellants submit that various unfair labor practices, for example, have not been treated as yet as criminal violations. It is possible, however, that the penalty provision might be construed broadly as applying to all sections of the Act that affirmatively proscribe or command courses of conduct. In terms it reaches “[a]ny person . . . who violates any provision of” the Act. Alternatively, the Arizona courts might conclude that only limited portions of the Act are susceptible of being “violated” and thus narrowly define the reach of the penalty section. In either case, it is evident that the statute is reasonably susceptible of constructions that might undercut or modify appellees’ vagueness attack. It may be that, if construed broadly, the penalty provision would operate in conjunction with substantive provisions of the Act to restrict unduly the pursuit of First Amendment activities. But it is at least evident that an authoritative construction of the penalty provision may significantly alter the constitutional questions requiring resolution. We have noted, of course, that when “extensive adjudications, under the impact of a variety of factual situations, [would be required in order to bring a challenged statute] within the bounds of permissible constitutional certainty,” abstention may be inappropriate. Baggett v. Bullitt, 377 U. S. 360, 378 (1964). But here the Arizona courts may determine in a single proceeding what substantive provisions the penalty provision modifies. In this case, the “uncertain issue of state law [turns] upon a choice between one or several alternative meanings of [the] state statute.” Ibid. Accordingly, we think the Arizona courts should be “afforded a reasonable opportunity to pass upon” the section under review. Harrison v. NAACP, supra, at 176. The District Court should have abstained with respect to appellees’ challenges to the consumer publicity provision as well. Appellees have argued that Arizona’s proscription of misrepresentations by labor organizations in the course of appeals to consumers intolerably inhibits the exercise of their First Amendment right freely to discuss issues concerning the employment of farm laborers and the production of crops. Appellants submit, however, that the statutory ban on untruthful consumer publicity might fairly be construed by an Arizona court as proscribing only misrepresentations made with knowledge of their falsity or in reckless disregard of truth or falsity. As that is the qualification that appellees insist the prohibition of misstatements must include, a construction to that effect would substantially affect the constitutional question presented. It is reasonably arguable that the consumer publicity provision is susceptible of the construction appellants suggest. Section 23-1385 (B) (8) makes it unlawful “[t]o induce or encourage the ultimate consumer of any agricultural product to refrain from purchasing, consuming or using such agricultural product by use of dishonest, untruthful and deceptive publicity.” (Emphasis added.) On its face, the statute does not forbid the propagation of untruths without more. Rather, to be condemnable, consumer publicity must be “dishonest” and “deceptive” as well as untruthful. And the Arizona courts may well conclude that a “dishonest” and “untruthful” statement is one made with knowledge of falsity or in reckless disregard of falsity. To be sure, the consumer publicity provision further provides that “[permissible inducement or encouragement . . . means truthful, honest and nondeceptive publicity. . . (Emphasis added.) That phrase may be read to indicate that representations not having all three attributes are prohibited under the Act. But it could be held that the phrase denotes only that “truthful, honest and nondeceptive publicity” is permissible, not that any other publicity is prohibited. When read in conjunction with the prohibitory clause preceding it, the latter phrase thus introduces an ambiguity suitable for state-court resolution. In sum, we think adjudication of appellees’ attack on the statutory limitation on untruthful consumer appeals should await an authoritative interpretation of that limitation by the Arizona courts. We further conclude that the District Court should have abstained from adjudicating appellees’ additional contention that the consumer publicity provision unconstitutionally precludes publicity not directed at the products of employers with whom the protesting labor organization has a primary dispute. We think it is by no means clear that the statute in fact prohibits publicity solely because it is directed at the products of particular employers. As already discussed, § 23-1385 (B) (8) declares it an unfair labor practice to induce or encourage the ultimate consumer of agricultural products to refrain from purchasing products “by the use of dishonest, untruthful and deceptive publicity.” The provision then stipulates: “Permissible inducement or encouragement within the meaning of this section means truthful, honest and non-deceptive publicity which identifies the agricultural product produced by an agricultural employer with whom the labor organization has a primary dispute. Permissible inducement or encouragement does not include publicity directed against any trademark, trade name or generic name which may include agricultural products of another producer or user of such trademark, trade name or generic name.” The section nowhere proscribes publicity directed at products of employers with whom a labor organization is not engaged in a primary dispute. It indicates only that publicity ranging beyond a primary disagreement is not ¡ accorded affirmative statutory protection The Arizona courts might reasonably determine that the language in issue does no more than that and might thus ameliorate appellees’ concerns. Moreover, § 23-1385 (B) (8) might be construed, in light of §23-1385 (C), to prohibit only threatening speech. The latter provision states in pertinent part that ‘‘[t]he expressing of any views, argument, opinion or the making of any statement ... or the dissemination of such views whether in written, printed, graphic, visual or auditory form, if such expression contains no threat of reprisal or force or promise of benefit, shall not constitute or be evidence of an unfair labor practice . . .On its face, § 23-1385 (C) would appear to qualify § 23-1385 (B) (8), as the latter identifies “an unfair labor practice for a labor organization or its agents.” Were the consumer publicity provision interpreted to intercept only those expressions embodying a threat of force, the issue of its constitutional validity would assume a character wholly different from the question posed by appellees’ construction. Thus, we conclude that the District Court erred in entertaining all aspects of appellees’ challenge to the consumer publicity section without the benefit of a construction thereof by the Arizona courts. We are sensitive to appellees’ reluctance to repair to the Arizona courts after extensive litigation in the federal arena. We nevertheless hold that in this case the District Court should not have adjudicated substantial constitutional claims with respect to statutory provisions that are patently ambiguous on their face. IV The merits of appellees’ challenge to the statutory election procedures remain to be considered. Appellees contend, and the District Court concluded, that the delays assertedly attending the statutory election scheme and the technical limitations on who may vote in unit elections severely curtail appellees’ freedom of association. This freedom, it is said, entails the liberty not only to join or sustain a labor union and collectively to express a position to an agricultural employer, but also to create or elect an organization entitled to invoke the statutory provision requiring an employer to bargain collectively with the certified representative of his employees. As we see it, however, these general complaints that the statutory election procedures are ineffective are matters for the Arizona Legislature and not the federal courts. Accepting that the Constitution guarantees workers the right individually or collectively to voice their views to their employers, see Givhan v. Western Line Consolidated School Dist., 439 U. S. 410 (1979); cf. Madison School Dist. v. Wisconsin Employment Relations Comm’n, 429 U. S. 167, 173-175 (1976), the Constitution does not afford such employees the right to compel employers to engage in a dialogue or even to listen. Accordingly, Arizona was not constitutionally obliged to provide a procedure pursuant to which agricultural employees, through a chosen representative, might compel their employers to negotiate. That it has undertaken to do so in an assertedly niggardly fashion, then, presents as a general matter no First Amendment problems. Moreover, the Act does not preclude voluntary recognition of a labor organization by an agricultural employer. Thus, in the event that an employer desires to bargain with a representative chosen by his employees independently of the statutory election procedures, such bargaining may readily occur. The statutory procedures need be pursued only if farm-workers desire to designate exclusive bargaining representatives and to compel their employer to bargain — rights that are conferred by statute rather than the Federal Constitution. Accordingly, at this time, we are unable to discern any First Amendment difficulty with the Arizona statutory election scheme, whether or not the procedures are as fair or efficacious as appellees would like. Reversed and remanded. The complaint asserted that the Act as a whole was invalid because it was pre-empted by the federal labor statutes, imposed an impermissible burden on commerce, denied appellees equal protection, and amounted to a bill of attainder. In addition, various constitutional challenges were made to one or more parts of 15 provisions of the Act. The District Court did not analyze section by section why a case or controversy existed with respect to each of the challenged sections. Rather, from instances of private and official enforcement detailed in a stipulation filed by the parties, the court concluded that the ease was not “hypothetical, abstract, or generalized.” 449 F. Supp. 449, 452 (Ariz. 1978). It did, however, focus specifically on § 23-1392. That provision makes it a crime to violate any other provision of the Act; and although the District Court deemed this section severable from the rest of the Act, it relied heavily on its conclusion that it had jurisdiction to adjudicate the validity of this section to justify its considering the constitutionality of other sections of the Act. See 449 F. Supp., at 454. In proceeding to do so, it ruled that evidence would be considered only in connection with § 23-1389 dealing with the election of bargaining representatives and with respect to §23-1385 (C) limiting union access to employer properties, although evidence was introduced at trial relative to other provisions. The court did not explain the basis for selecting from all of the challenges presented the five provisions on which it passed judgment. Section 23-1389 declares that representatives selected by a secret ballot for the purpose of collective bargaining by the majority of agricultural employees in an appropriate bargaining unit shall be the exclusive representatives of all agricultural employees in such unit for the purpose of collective bargaining. And it requires the Agricultural Employment Relations Board to ascertain the unit appropriate for purposes of collective bargaining. The section further provides that the Board shall investigate any petition alleging facts specified in § 23-1389 indicating that a question of representation exists and schedule an appropriate hearing when the Board has reasonable cause to believe that a question of representation does exist. If the hearing establishes that such a question exists, the Board is directed to order an election by secret ballot and to certify the results thereof. Section 23-1389 details the manner in which an election is to be conducted. The section further provides for procedures by which an employer might challenge a petition for an election. Additionally, § 23-1389 stipulates that no election shall be directed or conducted in any unit within which a valid election has been held in the preceding 12 months. Section 23-1389 also sets down certain eligibility requirements regarding participation in elections conducted thereunder. And it imposes obligations on employers to furnish information to the Board, to be made available to interested unions and employees, concerning bargaining-unit employees qualified to vote. Finally, the section specifies procedures whereby agricultural employees may seek to rescind the representation authority of a union currently representing those employees. The election provision contemplates voting by “agricultural employees,” §23-1389 (A), which is defined in §23-1382 (1) so as to exclude workers having only a brief history of employment with an agricultural employer. Section 23-1385 (B) (8) makes it an unfair labor practice for a labor organization or its agents: “To induce or encourage the ultimate consumer of any agricultural product to refrain from purchasing, consuming or using such agricultural product by the use of dishonest, untruthful and deceptive publicity. Permissible inducement or encouragement within the meaning of this section means truthful, honest and nondeceptive publicity which identifies the agricultural product produced by an agricultural employer with whom the labor organization has a primary dispute. Permissible inducement or encouragement does not include publicity directed against any trademark, trade name or generic name which may include agricultural products of another producer or user of such trademark, trade name or generic name.” Section 23-1392 provides: “Any person who knowingly resists, prevents, impedes or interferes with any member of the board or any of its agents or agencies in the performance of duties pursuant to this article, or who violates any provision of this article is guilty of a class 1 misdemeanor. The provisions of this section shall not apply to any activities carried on outside the state of Arizona.” Section 23-1385 (C) provides in part: “No employer shall be required to furnish or make available to a labor organization, and no labor organization shall be required to furnish or make available to an employer, materials, information, time, or facilities to enable such employer or labor organization, as the case may be, to communicate with employees of the employer, members of the labor organization, its supporters, or adherents.” Section 23-1393 (B) provides: “In the case of a strike or boycott, or threat of a strike or boycott, against an agricultural employer, the court may grant, and upon proper application shall grant as provided in this section, a ten-day restraining order enjoining such a strike or boycott, provided that if an agricultural employer invokes the court’s jurisdiction to issue the ten-day restraining order to enjoin a strike as provided by this subsection, said employer must as a condition thereto agree to submit the dispute to binding arbitration as the means of settling the unresolved issues. In the event the parties cannot agree on an arbitrator within two days after the court awards a restraining order, the court shall appoint one to decide the unresolved issues. Any agricultural employer shall be entitled to injunctive relief accorded by Rule 65 of the Arizona Rules of Civil Procedure upon the filing of a verified petition showing that his agricultural employees are unlawfully on strike or are unlawfully conducting a boycott, or are unlawfully threatening to strike or boycott, and that the resulting cessation of work or conduct of a boycott will result in the prevention of production or the loss, spoilage, deterioration, or reduction in grade, quality or marketability of an agricultural commodity or commodities for human consumption in commercial quantities. For the purpose of this subsection, an agricultural commodity or commodities for human consumption with a market value of five thousand dollars or more shall constitute commercial quantities.” Appellees challenged numerous provisions before the District Court not expressly considered by that court. After disapproving the five provisions that we address on this appeal, the court concluded that “there is obviously no need to rule on plaintiffs’ other contentions including the claimed equal protection violation.” 449 F. Supp., at 466. The court then enjoined enforcement of the Act in its entirety, finding the provisions not explicitly invalidated to be inseparable from those actually adjudieated. Id., at 467. We find insufficient reason to consider in this Court in the first instance appellees’ challenges to the provisions on which the District Court did not specifically pass judgment. Although appellants have contested the justiciability of appellees’ several challenges to the Act’s provisions, they have not contended that the standing of any particular appellee is more dubious than the standing of any other. We conclude that at least the UFW has a “sufficient ‘personal stake’ in a determination of the constitutional validity of [the three aforementioned provisions] to present ‘a real and substantial controversy admitting of specific relief through a decree of a conclusive character.’ ” Buckley v. Valeo, 424 U. S. 1, 12 (1976) (footnote omitted), quoting Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 241 (1937). See NAACP v. Alabama, 357 U. S. 449, 458 (1958). Accordingly, we do not assess the standing of the remaining appellees. See Buckley v. Valeo, supra, at 12. Though waiting until appellees invoke unsuccessfully the statutory election procedures would remove any doubt about the existence of concrete injury resulting from application of the election provision, little could be done to remedy the injury incurred in the particular election. Challengers to election procedures often have been left without a remedy in regard to the most immediate election because the election is too far underway or actually consummated prior to judgment. See, e. g., Dunn v. Blumstein, 405 U. S. 330, 333 n. 2 (1972); Moore v. Ogilvie, 394 U. S. 814, 816 (1969); Williams v. Rhodes, 393 U. S. 23, 34-35 (1968). Justi-ciability in such cases depends not so much on the fact of past injury but on the prospect of its occurrence in an impending or future election. See, e. g., Storer v. Brown, 415 U. S. 724, 737 n. 8 (1974); Rosario v. Rockefeller, 410 U. S. 752, 756 n. 5 (1973); Dunn v. Blumstein, supra, at 333 n. 2. There is value in adjudicating election challenges notwithstanding the lapse of a particular election because “[t]he construction of the statute, an understanding of its operation, and possible constitutional limits on its application, will have the effect of simplifying future challenges, thus increasing the likelihood that timely filed cases can be adjudicated before an election is held.” Storer v. Brown, supra, at 737 n. 8 (emphasis added). Even independently of criminal sanctions, § 23-1385 (B) (8) affirmatively prohibits the variety of consumer publicity specified therein. We think that the prospect of issuance of an administrative cease-and-desist order, §23-1390 (0), or a court-ordered injunction, §§ 23-1390 (E), (J), (K), against such prohibited conduct provides substantial additional support for the conclusion that appellees’ challenge to the publicity provision is justiciable. E. g., §23-1385 (C) (access to employer’s property); §23-1385 (B) (7) (boycotts); § 23-1385 (B) (12) (picketing and boycotts); §23-1385 (B)(13) (striking by minorities); §§23-1384, 23-1385 (D) (collective bargaining). The dissent suggests that § 23-1392 is unambiguous and needs no construction and that abstention is therefore improper. But the District Court invalidated §23-1392 on vagueness grounds, and the State’s position with respect to the issue is such that we are reluctant to conclude that appellees’ challenge to § 23-1392 on vagueness grounds is without substance and hence that it contains no ambiguity warranting abstention. If there were to be no abstention regarding § 23-1392 on the basis that it clearly criminalizes any departure from the command of any provision of the Act, adequate consideration of whether the section is unconstitutionally overbroad would require inquiry into whether some conduct prohibited by the Act is constitutionally shielded from criminal punishment. But that would entail dealing with the validity of provisions about which there may be no case or controversy or with respect to which abstention is the proper course. Although construing the section in this manner would apparently satisfy appellees, we should not be understood as declaring that the section and its criminal sanction would be unconstitutional if they proscribed damaging falsehoods perpetrated unknowingly or without recklessness. We have not adjudicated the role of the First Amendment in suits by private parties against nonmedia defendants, nor have we considered the constitutional implications of causes of action for injurious falsehoods outside the area of defamation and the ground covered by Time, Inc. v. Hill, 385 U. S. 374 (1967). Linn v. Plant Guard Workers, 383 U. S. 53 (1966), holding that application of state defamation remedies for speech uttered in a labor dispute is dependent upon a showing of knowledge or recklessness, was grounded in federal labor policy, though the case had constitutional overtones. Furthermore, we express no view on whether the section would be vulnerable to constitutional attack if it declared false consumer publicity, whether innocent or culpable, to be an unfair labor practice and had as its only sanction a prospective cease-and-desist order or court injunction directing that the defendant cease publishing material already determined to be false. Were the section construed to prohibit all appeals directed against the products of agricultural employers whose employees the labor organization did not actually represent, its constitutionality would be substantially in doubt. Even picketing may not be so narrowly circumscribed. AFL v. Swing, 312 U. S. 321 (1941). Additional difficulties would arise were the section interpreted to intercept publicity by means other than picketing. Although we have previously concluded that picketing aimed at discouraging trade across the board with a truly neutral employer may be barred compatibly with the Constitution, Carpenters v. Ritter’s Cafe, 315 U. S. 722 (1942); cf. NLRB v. Fruit Packers, 377 U. S. 58 (1964), we have noted that, for First Amendment purposes, picketing is qualitatively “different from other modes of communication.” Hughes v. Superior Court, 339 U. S. 460, 465 (1950); see Buckley v. Valeo, 424 U. S., at 17; Teamsters v. Vogt, Inc., 354 U. S. 284 (1957). It has been suggested that the impact of abstention on appellees’ pursuit of constitutionally protected activities should be reduced by directing the District Court to protect appellees against enforcement of the state statute pending a definitive resolution of issues of state law by the Arizona courts. See Harrison v. NAACP, 360 U. S. 167, 178-179 (1959). But this is a matter that is best addressed by the District Court in the first instance. We do not consider whether the election procedures deny any of the appellees equal protection of the law. Although appellees have challenged other provisions of the Act on equal protection grounds, they have not directed such an argument in this Court against the section governing election procedures. We understand appellees’ equal protection challenge to embrace the sections pertaining to access to an employer’s property and consumer publicity. But we have determined that appellees’ assault on the first provision is premature and that appellees’ attack on the second should be held in abeyance pending resort to the Arizona courts. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:

songer_appbus

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 appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. FALLS RIVERWAY REALTY, INC. and Forest City Development Corp., Plaintiffs-Appellants, v. The CITY OF NIAGARA FALLS, NEW YORK and Niagara Falls Urban Renewal Agency, Defendants and Third-Party Plaintiffs-Appellees. v. Samuel PIERCE, as Secretary of the United States Department of Housing and Urban Development and Joseph Monticciolo, as Regional Administrator, Region II, of the United States Department of Housing and Urban Development and Richard W. Lippold, as Buffalo Area Manager, Buffalo Area Office, Region II, of the United States Department of Housing and Urban Development, Third-Party Defendants. No. 623, Docket 83-6275. United States Court of Appeals, Second Circuit. Argued Jan. 24, 1984. Decided April 9, 1984. Philip S. Gellman, Niagara Falls, N.Y. (Gellman & Gellman, Niagara Falls, N.Y., of counsel), for plaintiffs-appellants. Patrick Berrigan, Niagara Falls, N.Y., for defendant-third-party plaintiff-appellee, City of Niagara Falls, N.Y. Blair & Roach, Buffalo, N.Y., for defendant-third-party plaintiff-appellee, Niagara Falls Urban Renewal Agency. Before LUMBARD, MESKILL and PRATT, Circuit Judges. GEORGE C. PRATT, Circuit Judge: Plaintiffs Falls Riverway Realty, Inc. and Forest City Development Corp. appeal from a summary judgment of the United States District Court for the Western District of New York, Curtin, ,/., dismissing their complaint for damages resulting from loss of suitable street access to their property. Because the suitability of plaintiffs’ access presents issues of fact under New York law, the judgment is reversed and the case remanded for further proceedings. FACTS Plaintiffs’ property is a roughly rectangular parcel in downtown Niagara Falls, New York, bounded 266 feet on the north by Falls Street and 168 feet on the east by Main Street. It is improved with a two-story L-shaped structure running along the entire frontage of Falls Street and 123 feet along Main Street. The remaining Main Street frontage is a 45 foot driveway providing the only access to plaintiffs’ interior parking lot located on that part of the parcel not covered by the building. In earlier days the building was occupied by retail stores, including such major tenants as J.C. Penney, Sears and Singer Sewing Machine. It is now substantially, if not entirely, vacant. Before the urban renewal project that precipitated this lawsuit, Main Street was the main vehicular artery connecting the Rainbow Bridge Plaza and Niagara Street, on the north, with Buffalo Avenue, First Street, and the entrance to Goat Island, on the south. Falls Street, also a major commercial artery, ran easterly from the subject property’s westerly boundary and intersected Main Street at the northeast corner of the subject property. The urban renewal plan contemplated major revisions in traffic patterns and land uses in the vicinity of the subject property. Some of the changes have been implemented; others appear to have been abandoned, at least for the present. The actual changes relevant to this appeal involve Falls Street and Main Street. Falls Street has been closed to all vehicular traffic and converted into Rainbow Mall, a street devoted exclusively to pedestrian use. Main Street is no longer a commercial artery. North of Rainbow Mall it has been abandoned. South of Rainbow Mall, opposite the subject property, the street can be reached only from the south, and it dead ends at Rainbow Mall. That portion of the street abutting the subject property is used as a parking area, although vehicles still have access to the subject property over the same 45 foot driveway. While Main Street has been physically unchanged south of Rainbow Mall, it nevertheless has changed in character and function because it is closed off at Rainbow Mall, leads to the subject property only from the south, carries no through vehicular traffic, and attracts only people seeking the subject property or wishing to use the street for parking purposes. More than seven years ago plaintiffs commenced an action in New York State Supreme Court, Niagara County, against the city and the Niagara Falls Urban Renewal Agency to recover damages claimed to have been caused by the urban renewal project. The first two of its three causes of action were premised on theories that Falls Street and Main Street had been abandoned, causing title to the center line of each street to revert to plaintiffs as the abutting owners, and that subsequent use of the former streets for the pedestrian mall and parking area constituted a taking of plaintiffs’ property for which they were entitled to compensation. Plaintiffs’ third cause of action sought damages on the theory that defendants had deprived the subject property of reasonable and suitable access consistent with its highest and best use, which was retail commercial. In January 1977 defendants moved to dismiss all three causes of action. The state court granted the motion as to the first cause of action, concluding that Falls Street had not been abandoned but simply converted to pedestrian rather than vehicular use. The court denied the balance of the motion, finding that the second and third causes of action presented questions of fact requiring a trial. As to the second cause of action, there was at that time a possibility that part of Main Street would be formally abandoned and sold to commercial developers, so the court left that matter for greater factual development at a trial. On the third cause of action the court concluded that the extent of defendants’ interference with access and the suitability of what had been allowed to remain presented a triable issue. The case then meandered along until September 1981 when, on the eve of the state court trial, defendants served a third-party summons and complaint on officials of the United States Department of Housing and Urban Development (HUD). On behalf of the HUD officials, the U.S. Attorney removed the entire action to the United States District Court for the Western District of New York pursuant to 28 U.S.C. §§ 1441 and 1442. Plaintiffs moved to sever the state claims from the federal third-party claims and to have the state claims remanded, but the district court denied that motion. HUD then moved to dismiss the third-party claims, and defendants moved to dismiss the complaint’s remaining two causes of action. Judge Curtin granted HUD’s motion, and believing that “the speediest resolution of this case may be had if this court continues jurisdiction” over the state law claims, even though the basis for removal to federal court had now disappeared from the case with dismissal of the federal agency, he turned his attention to defendants’ motions, permitting additional papers and oral argument. Defendants established that the possible abandonment of Main Street, which had prompted the state court to deny summary judgment on the second cause of action, had not occurred. They also established that there had been no direct taking of any part of the subject property, and that the 45 foot entrance from Main Street to the parking area of the subject property had not been physically altered. In opposing summary judgment, plaintiffs abandoned the second cause of action and concentrated their attention on the third, claiming that the access remaining to their property as a result of the street closings and changes was unsuitable. In support, plaintiffs presented, among other things, an affidavit by the former planning director for the City of Niagara Falls in which he asserted that, while the subject property had “excellent vehicular access” through Falls Street and Main Street prior to the urban renewal plan, “abandonment” of the streets and the failure to implement other aspects of the original plan made the access remaining to the subject property “very poor”. Plaintiffs also submitted the affidavit of a professional engineer who asserted that with the elimination of vehicles from Falls Street and the dead-ending of Main Street at the south line of Falls Street the “vehicular access to the subject property at the rear of said building * * * cannot accommodate sufficient vehicular traffic to support the prior use of the building which was department store commercial.” Plaintiffs further contended that the conversion of Main Street from an arterial commercial street into a parking lot deprived them of its utility as a street. These circumstances, plaintiffs contended, created a triable issue as to the suitability of plaintiffs’ remaining access. Viewing plaintiffs’ claim as one for the diminished value of the subject property caused by “diverting vehicular traffic from the premises and its immediate area”, the district court concluded that “New York law does not permit the recovery of damages for diminution in the value of property resulting from the relocation of a public road which diverts traffic or interferes with access to the property”; that “[plaintiffs still have the same access to the premises they had before the plan went into effect”; and that “[mjerely because the access is more inconvenient does not create any cause of action, since there has been no taking of plaintiffs’ property.” For these reasons the district court granted summary judgment and dismissed the rest of the complaint. DISCUSSION Whatever may have been earlier law in New York, it now seems clear that a property owner in the vicinity of a condemnation or urban renewal project, who has not been left with “suitable access”, is entitled to compensation even though there has been no taking of plaintiff’s own property. Chemung Canal Trust Co. v. State, 90 A.D.2d 889, 456 N.Y.S.2d 518 (3d Dept.1982); Gengarelly v. Glen Cove Urban Renewal Agency, 69 A.D.2d 524, 418 N.Y.S.2d 790 (2d Dept.1979). In Chemung Canal Trust Co. v. State, the court held: “[T]he fact that the taking and closing of State Street did not involve any direct taking of plaintiff’s land does not preclude recovery in damages if, through that taking, claimant’s property was in fact deprived of suitable access.” 90 A.D.2d at 990, 456 N.Y.S.2d at 519. In so holding, the Third Department relied on a similar determination in Gengarelly v. Glen Cove Urban Renewal Agency: “It is hornbook law that a State or municipality may close a street, if acting under proper statutory authority, but a suitable means of access must be left an abutting owner or else he is entitled to compensation * * *.” 69 A.D.2d at 526, 418 N.Y.S.2d at 792. If we were to interpret the district court’s determination as denying damages simply because there had been no direct taking, we would have to conclude that it misinterpreted the applicable New York law mentioned above. We prefer instead to interpret the decision below as having directed itself to the key issue, whether plaintiffs’ remaining access was “suitable”. On that issue, the district court seems to have determined as a matter of law that the access must be suitable because plaintiffs “still have the same access to the premises they had before the plan went into effect.” We do not think that suitability of access under New York law can be so readily determined on papers. For over 15 years New York courts have struggled with the “rather murky distinction between access which is merely ‘circuitous’ and, therefore, insufficient as a basis for consequential damages and that which is ‘unsuitable’ and, therefore, compensable.” Priestly v. State, 23 N.Y.2d 152, 155, 295 N.Y.S.2d 659, 662, 242 N.E.2d 827, 829 (1968). Indeed, the concepts are not mutually exclusive, but overlap in the sense that circuitous access “might also be unsuitable in that it is inadequate to the access needs inherent in the highest and best use of the property involved.” Id. at 156, 295 N.Y.S.2d at 663, 242 N.E.2d at 830. Since the dividing line between noncompensable access that is merely circuitous or inconvenient, and compensable access that is unsuitable, is imprecise and depends upon the nature and character of the remaining access in light of the highest and best use of the subject property, the inquiry is viewed in New York as uniquely factual, one that rarely can be decided on summary judgment. See Priestly v. State, 23 N.Y.2d at 156, 295 N.Y.S.2d at 663, 242 N.E.2d at 829 (“the question of suitability is a factual one directly related to the highest and best use of the property”); La Briola v. State, 36 N.Y.2d 328, 337, 368 N.Y.S.2d 147, 156, 328 N.E.2d 781, 787 (1975) (suitability of access “is in large part a question of fact”); Chemung Canal Trust Co. v. State, 90 A.D.2d at 990, 456 N.Y.S.2d at 519; (“[ujnsuitability of access is not to be determined in the abstract, but in relation to the need for access inherent in the highest and best use of the property * * *. What constitutes the highest, best use and access suitable for such use is generally a question of fact * * * ”); Gengarelly v. Glen Cove Urban Renewal Agency, 69 A.D.2d at 526-27, 418 N.Y.S.2d at 792 (“[w]hat may be a suitable means of access is, of course, a question of fact to be left to the trial court”). While the driveway onto the subject property was not physically changed by the urban renewal project, accessibility of vehicles to that driveway was substantially changed by the alteration in street uses and traffic patterns. In short, while the basic facts are uncontested, we think that their evaluation and interpretation in light of the need for access inherent in the highest and best use of the property requires a trial on the merits of plaintiffs’ third cause of action. Accordingly, we reverse the judgment appealed from insofar as it dismissed the third cause of action and remand for further proceedings. The only remaining question is where the trial should be. Plaintiffs would have us direct the district court to remand the case to state court. However, we do not accept plaintiffs’ contention that dismissal of the third-party complaint deprived the federal court of jurisdiction over plaintiffs’ state claims. Galella v. Onassis, 487 F.2d 986, 996 (2d Cir.1973); Murphy v. Kodz, 351 F.2d 163, 167-68 (9th Cir.1965). As we held in Galella, after dismissal of the claim against federal officers on which removal jurisdiction was based, “[wjhether the claim was to be remanded was within the court’s discretion after consideration of judicial economy and fairness to the litigants.” Galella v. Onassis, 487 F.2d at 996. When the district court first decided to retain jurisdiction over the state law claims, it had pending before it motions for summary judgment, and we do not quarrel with its determination that at that time “the speediest resolution of this case may be had if this court continues jurisdiction.” Now that a trial on the merits has become necessary, however, the district court should once again weigh the circumstances to determine whether remand would now be appropriate. Such reevaluation should consider such factors as judicial economy, fairness to the parties, the delicacy of the state law issues, the policy of having federal courts avoid “needless decisions of state law”, United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), the likelihood of a prompt disposition in this long-delayed litigation, and the legitimate interests and expectations of the parties in having a trial in federal court. See Kavit v. A.L. Stamm & Co., 491 F.2d 1176, 1179-80 (2d Cir.1974). We recognize, of course, that this decision lies uniquely in the discretion of the district court, which is in the best position to balance the relevant factors and ultimately determine whether to retain jurisdiction or to remand the case. We merely suggest that instead of automatically proceeding to trial, the district court should first take another look at the remand question. The judgment is reversed insofar as it dismissed the third cause of action, and the ease is remanded for further proceedings consistent with this opinion. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:

sc_respondent

064

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. DEWSNUP v. TIMM et al. No. 90-741. Argued October 15, 1991 Decided January 15, 1992 Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Stevens, O’Connor, and Kennedy, JJ., joined. Scalia, J., filed a dissenting opinion, in which Souter, J., joined, post, p. 420. Thomas, J., took no part in the consideration or decision of the ease. Timothy B. Dyk argued the cause for petitioner. With him on the briefs was Patricia A. Dunn. Richard G. Taranto argued the cause for respondents. With him on the brief were H. Bartow Farr III and Michael Z. Hayes. Ronald J. Mann argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, and Alan Charles Raul. Michael Fox Mivasair and Henry J. Sommer filed a brief for the Consumers Education and Protective Association, Inc., as amicus curiae urging reversal. Justice Blackmun delivered the opinion of the Court. We are confronted in this case with an issue concerning § 506(d) of the Bankruptcy Code, 11 U. S. C. § 506(d). May a debtor “strip down” a creditor’s lien on real property to the value of the collateral, as judicially determined, when that value is less than the amount of the claim secured by the lien? I On June 1, 1978, respondents loaned $119,000 to petitioner Aletha Dewsnup and her husband, T. LaMar Dewsnup, since deceased. The loan was accompanied by a Deed of Trust granting a lien on two parcels of Utah farmland owned by the Dewsnups. Petitioner defaulted the following year. Under the terms of the Deed of Trust, respondents at that point could have proceeded against the real property collateral by accelerating the maturity of the loan, issuing a notice of default, and selling the land at a public foreclosure sale to satisfy the debt. See also Utah Code Ann. §§57-1-20 to 57-1-37 (1990 and Supp. 1991). Respondents did issue a notice of default in 1981. Before the foreclosure sale took place, however, petitioner sought reorganization under Chapter 11 of the Bankruptcy Code, 11 U. S. C. § 1101 et seq. That bankruptcy petition was dismissed, as was a subsequent Chapter 11 petition. In June 1984, petitioner filed a petition seeking liquidation under Chapter 7 of the Code, 11 U. S. C. §701 et seq. Because of the pendency of these bankruptcy proceedings, respondents were not able to proceed to the foreclosure sale. See 11 U. S. C. §362 (1988 ed. and Supp. II). In 1987, petitioner filed the present adversary proceeding in the Bankruptcy Court for the District of Utah seeking, pursuant to § 506, to “avoid” a portion of respondents’ lien. App. 3. Petitioner represented that the debt of approximately $120,000 then owed to respondents exceeded the fair market value of the land and that, therefore, the Bankruptcy Court should reduce the lien to that value. According to petitioner, this was compelled by the interrelationship of the security-reducing provision of § 506(a) and the lien-voiding provision of § 506(d). Under § 506(a) (“An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property”), respondents would have an “allowed secured claim” only to the extent of the judicially determined value of their collateral. And under § 506(d) (“To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void”), the court would be required to void the lien as to the remaining portion of respondents’ claim, because the remaining portion was not an “allowed secured claim” within the meaning of § 506(a). The Bankruptcy Court refused to grant this relief. In re Dewsnup, 87 B. R. 676 (1988). After a trial, it determined that the then value of the land subject to the Deed of Trust was $39,000. It indulged in the assumption that the property had been abandoned by the trustee pursuant to §554, and reasoned that once property was abandoned it no longer fell within the reach of § 506(a), which applies only to “property in which the estate has an interest,” and therefore was not covered by § 506(d). The United States District Court, without a supporting opinion, summarily affirmed the Bankruptcy Court’s judgment of dismissal with prejudice. App. to Pet. for Cert. 12a. The Court of Appeals for the Tenth Circuit, in its turn, also affirmed. In re Dewsnup, 908 F. 2d 588 (1990). Starting from the “fundamental premise” of § 506(a) that a claim is subject to reduction in security only when the estate has an interest in the property, the court reasoned that because the estate had no interest in abandoned property, § 506(a) did not apply (nor, by implication, did § 506(d)). Id., at 590-591. The court then noted that a contrary result would be inconsistent with § 722 under which a debtor has a limited right to redeem certain personal property. Id., at 592. Because the result reached by the Court of Appeals was at odds with that reached by the Third Circuit in Gaglia v. First Federal Savings & Loan Assn., 889 F. 2d 1304, 1306-1311 (1989), and was expressly recognized by the Tenth Circuit as being in conflict, see 908 F. 2d, at 591, we granted certiorari. 498 U. S. 1081 (1991). II As we read their several submissions, the parties and their amici are not in agreement in their respective approaches to the problem of statutory interpretation that confronts us. Petitioner-debtor takes the position that §§ 506(a) and 506(d) are complementary and to be read together. Because, under § 506(a), a claim is secured only to the extent of the judicially determined value of the real property on which the lien is fixed, a debtor can void a lien on the property pursuant to § 506(d) to the extent the claim is no longer secured and thus is not “an allowed secured claim.” In other words, § 506(a) bifurcates classes of claims allowed under § 502 into secured claims and unsecured claims; any portion of an allowed claim deemed to be unsecured under § 506(a) is not an “allowed secured claim” within the lien-voiding scope of § 506(d). Petitioner argues that there is no exception for unsecured property abandoned by the trustee. Petitioner’s amicus argues that the plain language of § 506(d) dictates that the proper portion of an undersecured lien on property in a Chapter 7 case is void whether or not the property is abandoned by the trustee. It further argues that the rationale of the Court of Appeals would lead to evisceration of the debtor’s right of redemption and the elimination of an undersecured creditor’s ability to participate in the distribution of the estate’s assets. Respondents primarily assert that § 506(d) is not, as petitioner would have it, “rigidly tied” to § 506(a), Brief for Respondents 7. They argue that § 506(a) performs the function of classifying claims by true secured, status at the time of distribution of the estate to ensure fairness to unsecured claimants. In contrast, the lien-voiding § 506(d) is directed to the time at which foreclosure is to take place, and, where the trustee has abandoned the property, no bankruptcy distributional purpose is served by voiding the lien. In the alternative, respondents, joined by the United States as amicus curiae, argue more broadly that the words “allowed secured claim” in § 506(d) need not be read as an indivisible term of art defined by reference to § 506(a), which by its terms is not a definitional provision. Rather, the words should be read term-by-term to refer to any claim that is, first, allowed, and, second, secured. Because there is no question that the claim at issue here has been “allowed” pursuant to § 502 of the Code and is secured by a lien with recourse to the underlying collateral, it .does not come within the scope of § 506(d), which voids only liens corresponding to claims that have not been allowed and secured. This reading of § 506(d), according to respondents and the United States, gives the provision the simple and sensible function of voiding a lien whenever a claim secured by the lien itself has not been allowed. It ensures that the Code’s determination not to allow the underlying claim against the debtor personally is given full effect by preventing its assertion against the debtor’s property. Respondents point out that pre-Code bankruptcy law preserved liens like respondents’ and that there is nothing in the Code’s legislative history that reflects any intent to alter that law. Moreover, according to respondents, the “fresh start” policy cannot justify an impairment of respondents’ property rights, for the fresh start does not extend to an in rent claim against property but is limited to a discharge of personal liability. III The foregoing recital of the contrasting positions of the respective parties and their amici demonstrates that §506 of the Bankruptcy Code and its relationship to other provisions of that Code do embrace some ambiguities. See 3 Collier on Bankruptcy, ch. 506 and, in particular, ¶ 506.07 (15th ed. 1991). Hypothetical applications that come to mind and those advanced at oral argument illustrate the difficulty of interpreting the statute in a single opinion that would apply to all possible fact situations. We therefore focus upon the case before us and allow other facts to await their legal resolution on another day. We conclude that respondents’ alternative position, espoused also by the United States, although not without its difficulty, generally is the better of the several approaches. Therefore, we hold that § 506(d) does not allow petitioner to “strip down” respondents’ lien, because respondents’ claim is secured by a lien and has been fully allowed pursuant to §502. Were we writing on a clean slate, we might be inclined to agree with petitioner that the words “allowed secured claim” must take the same meaning in § 506(d) as in § 506(a). But, given the ambiguity in the text, we are not convinced that Congress intended to depart from the pre-Code rule that liens pass through bankruptcy unaffected. 1. The practical effect of petitioner’s argument is to freeze the creditor’s secured interest at the judicially determined valuation. By this approach, the creditor would lose the benefit of any increase in the value of the property by the time of the foreclosure sale. The increase would accrue to the benefit of the debtor, a result some of the parties describe as a “windfall.” We think, however, that the creditor’s lien stays with the real property until the foreclosure. That is what was bargained for by the mortgagor and the mortgagee. The voidness language sensibly applies only to the security aspect of the lien and then only to the real deficiency in the security. Any increase over the judicially determined valuation during bankruptcy rightly accrues to the benefit of the creditor, not to the benefit of the debtor and not to the benefit of other unsecured creditors whose claims have been allowed and who had nothing to do with the mortgagor-mortgagee bargain. Such surely would be the result had the lienholder stayed aloof from the bankruptcy proceeding (subject, of course, to the power of other persons or entities to pull him into the proceeding pursuant to § 501), and we see no reason why his acquiescence in that proceeding should cause him to experience a forfeiture of the kind the debtor proposes. It is true that his participation in the bankruptcy results in his having the benefit of an allowed unsecured claim as well as his allowed secured claim, but that does not strike us as proper recompense for what petitioner proposes by way of the elimination of the remainder of the lien. 2. This result appears to have been clearly established before the passage of the 1978 Act. Under the Bankruptcy Act of 1898, a lien on real property passed through bankruptcy unaffected. This Court recently acknowledged that this was so. See Farrey v. Sanderfoot, 500 U. S. 291, 297 (1991) (“Ordinarily, liens and other secured interests survive bankruptcy”); Johnson v. Home State Bank, 501 U. S. 78, 84 (1991) (“Rather, a bankruptcy discharge extinguishes only one mode of enforcing a claim — namely, an action against the debtor in personam — while leaving intact another — namely, an action against the debtor in rem”). 3. Apart from reorganization proceedings, see 11 U. S. C. §§616(1) and (10) (1976 ed.), no provision of the pre-Code statute permitted involuntary reduction of the amount of a creditor’s lien for any reason other than payment on the debt. Our cases reveal the Court’s concern about this. In Long v. Bullard, 117 U. S. 617, 620-621 (1886), the Court held that a discharge in bankruptcy does not release real estate of the debtor from the lien of a mortgage created by him before the bankruptcy. And in Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555 (1935), the Court considered additions to the Bankruptcy Act effected by the Frazier-Lemke Act, 48 Stat. 1289. There the Court noted that the latter Act’s “avowed object is to take from the mortgagee rights in the specific property held as security; and to that end ‘to scale down the indebtedness’ to the present value of the property.” 295 U. S., at 594. The Court invalidated that statute under the Takings Clause. It further observed: “No instance has been found, except under the Frazier-Lemke Act, of either a statute or decision compelling the mortgagee to relinquish the property to the mortgagor free of the lien unless the debt was paid in full.” Id., at 579. Congress must have enacted the Code with a full understanding of this practice. See H. R. Rep. No. 95-595, p. 357 (1977) (“Subsection (d) permits liens to pass through the bankruptcy case unaffected”). 4. When Congress amends the bankruptcy laws, it does not write “on a clean slate.” See Emil v. Hanley, 318 U. S. 515, 521 (1943). Furthermore, this Court has been reluctant to accept arguments that would interpret the Code, however vague the particular language under consideration might be, to effect a major change in pre-Code practice that is not the subject of at least some discussion in the legislative history. See United Savings Assn. of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 380 (1988). See also Pennsylvania Dept. of Public Welfare v. Davenport, 495 U. S. 552, 563 (1990); United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 244-245 (1989). Of course, where the language is unambiguous, silence in the legislative history cannot be controlling. But, given the ambiguity here, to attribute to Congress the intention to grant a debtor the broad new remedy against allowed claims to the extent that they become “unsecured” for purposes of § 506(a) without the new remedy’s being mentioned somewhere in the Code itself or in the annals of Congress is not plausible, in our view, and is contrary to basic bankruptcy principles. The judgment of the Court of Appeals is affirmed. It is so ordered. Justice Thomas took no part in the consideration or decision of this case. Section 506 provides in full: “(a) An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor’s interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest. “(b) To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose. “(c) The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. “(d) To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void, unless— “(1) such claim was disallowed only under section 502(b)(5) or 502(e) of this title; or “(2) such claim is not an allowed secured claim due only to the failure of any entity to file a proof of such claim under section 501 of this title.” Respondents expressly stated in their brief and twice again at oral argument that they adopted as an alternative position the United States’ interpretation of § 506(d). Brief for Respondents 40, n. 33; Tr. of Oral Arg. 14, 20. In dissent, however, Justice Scalia contends that respondents have not taken the same position as the United States on this issue. According to the dissent, the United States has taken the position that “a lien only ‘secures’ the claim in question up to the value of the security that is the object of the lien — and only up to that value is the lien subject to avoidance under § 506(d).” Post, at 424. In fact, the United States says: “Under [petitioner’s] reading, Section 506(d) would operate to reduce the creditor’s lien to the value of the allowed secured claim described in Section 506(a). In our view, this reading makes no sense.” Brief for United States as Amicus Curiae 5. Accordingly, we express no opinion as to whether the words “allowed secured claim” have different meaning in other provisions of the Bankruptcy Code. Section 67d of the 1898 Act, 30 Stat. 564, made this explicit: “Liens given or accepted in good faith and not in contemplation of or in fraud upon this Act, and for a present consideration, which have been recorded according to law, if record thereof was necessary in order to impart notice, shall not be affected by this Act.” The Court, with respect to this statute, has said: “Section 67d ... declares that liens given or accepted in good faith and not in contemplation of or in fraud upon this act, shall not be affected by it.” City of Richmond v. Bird, 249 U. S. 174, 177 (1919). This precise statutory language did not appear in a reorganization of the section in the Chandler Act of 1938,52 Stat. 840. A respected bankruptcy authority convincingly explained that this was done not to remove the rule of validity but because “the draftsmen of the 1938 Act desired generally to specify only what should be invalid." 4B Collier on Bankruptcy ¶ 70.70, p. 771 (14th ed. 1978) (emphasis in original). The alteration had no substantive effect. Oppenheimer v. Oldham, 178 F. 2d 386, 389 (CA5 1949). Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:

songer_const1

0

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. In the Matter of MUSKEGON MOTOR SPECIALTIES, Debtor. MUSKEGON MOTOR STOCKHOLDERS PROTECTIVE COMMITTEE, Appellant, v. Louis F. DAVIS, Trustee, Appellee. No. 16492. United States Court of Appeals Sixth Circuit. Sept. 29, 1966. John R. Starrs, Detroit, Mich. (Wurzer, Higgins & Starrs, Detroit, Mich., on the brief), for appellant. David Ferber, Washington, D. C. (Thomas B. Hart, Adm., J. Kirk Windle, Sp. Counsel, Grant Guthrie, Atty., Chicago Regional Office, S. E. C., Chicago, 111., Philip A. Loomis, Jr., Gen. Counsel, David Ferber, Sol., Richard Nathan, Atty., S. E. C., Washington, D. C., on the brief), for Securities and Exchange Commission. Joseph S. Radom, Detroit, Mich. (Leonard Meldman, Detroit, Mich., on the brief), for appellee. Maxwell F. Badgley, Jackson, Mich. (Clifford H. Domke, Jackson, Mich., of counsel), for prospective purchasers of stock. John A. Ziegler, Jr., Detroit, Mich. (Dickinson, Wright, McKean & Cudlip, Robert E. McKean, Detroit, Mich., of counsel), for Wyman-Gordon Company, Unsecured Creditors. Before WEICK, Chief Judge, and PHILLIPS and CELEBREZZE, Circuit Judges. WEICK, Chief Judge. This is an appeal by a stockholders’ committee representing preferred stockholders of the Muskegon Motor Specialties Company, a Delaware corporation, (hereinafter referred to as Muskegon) from an order of the District Court approving a plan of reorganization under Chapter X of the Bankruptcy Act, 11 U.S.C. §§ 501-676 (1965) Muskegon has owned and operated the Jackson Crankshaft Division, which machines and processes crankshafts for the motor truck industry, since 1930. Since 1955, it has also owned all of the shares of stock of its subsidiary, the Detroit Brick & Block Company, which produces sand-lime bricks for residential and commercial construction in the metropolitan Detroit area. Other diversified divisions of Muskegon, acquired at various stages of its corporate life, have been sold off during the pendency of the Chapter X proceedings. The District Court held a hearing on a plan of reorganization submitted by the Creditors Committee in December, 1964, more than three and one-half years after the commencement of the proceedings, which plan provided for exchanging shares of stock for creditors’ claims, and evidence was then adduced to the effect that Muskegon was insolvent. The creditors’ plan was dropped and the Trustee submitted an amended plan of reorganization. Hearings on the Trustee’s amended plan were held in January, 1965, at which time additional expert testimony as to the insolvency of Muskegon and the future prospects for the reorganized Jackson Crankshaft Division (Detroit Brick & Block not being insolvent) was adduced by the Creditors Committee and the Trustee in support of the amended plan. No evidence was offered at that time by the preferred shareholders or the Securities and Exchange Commission, and the District Court entered an order finding Muskegon insolvent and approved the amended plan on January 25, 1965. Later, after the required consent of the creditors had been received, the Court confirmed the plan on March 1, 1965. Because of the appeal from the order of January 25 by the newly-formed Stockholders Protective Committee, no steps were taken to implement the amended plan. The Committee represents holders of the Class A preferred stock of Muskegon, it being generally agreed that the common stock and Class B preferred have no interest remaining in the corporation. In June 1965, SEC moved to vacate the orders approving and confirming the amended plan because of an alleged significant change in the financial outlook of the Jackson Crankshaft Division. The District Court granted this motion on June 23,1965. The proponents of the plan moved for a rehearing of SEC’s motion to vacate. On the rehearing, which was permitted by this Court pending the appeal, additional expert testimony on the issue of solvency of Muskegon was presented in the District Court both by the Creditors Committee and, for the first time, by the Stockholders Committee. On October 25,1965, the District Court filed an opinion and order confirming its original finding of insolvency, vacating the order of June 23, 1965, and denying the motion of SEC to vacate the orders of January 25 and March 1, 1965, approving and confirming the amended plan. SEC, by statute , is given no right of appeal, but it submitted briefs supporting the appeal of the Stockholders Committee and participated in the oral argument. The Trustee’s amended plan of reorganization which engendered this lengthy and complex dispute provides for the payment in full of all costs and expenses of administration, taxes, wage liabilities, claims incurred during the Trustee’s operation of Jackson Crankshaft, and of all secured creditors. General unsecured creditors are given the choice of accepting 45% of the face amount of their claims in cash or 33 and % % in stock of the new corporation. The interests of the old shareholders, both common and preferred, are eliminated because of the finding of insolvency. Instead, a group of local businessmen has agreed to subscribe for 20,000 of the new shares of common stock of the reorganized corporation and has placed the purchase price of $200,000 in escrow for this purpose. The remaining 12,500 new shares will be taken by the largest unsecured creditor and four smaller creditors in lieu of a cash settlement of their claims. In addition, the new group has arranged a bank loan in the amount of $400,000, secured by mortgage, to finance the payments to the creditors who elected to take cash. Before the District Court can confirm a plan of reorganization under Chapter X, even one accepted in good faith by the required percentage of creditors, it must be satisfied that the plan is “fair, equitable, and feasible,” 11 U.S.C. § 621. This standard, developed through the years from the prior practices of the federal courts in equity receiverships, must be applied through the exercise of independent judgment of the District Court. As a prerequisite to such a finding, the court must test the plan by the rule of absolute priority; that is, the plan must preserve for each set of interests the priority which it held before the reorganization. Northern Pacific Railway Co. v. Boyd, 228 U.S. 482, 33 S.Ct. 554, 57 L.Ed. 931 (1913); Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 60 S.Ct. 1, 84 L.Ed. 110 (1939), rehearing denied, 308 U.S. 637, 60 S.Ct. 258, 84 L.Ed. 529 (1939). See also Marine Harbor Properties, Inc. v. Manufacturer’s Trust Co., 317 U.S. 78, 63 S.Ct. 93, 87 L.Ed. 64 (1942). In most cases this means that the shareholders of the debtor corporation have no right to participate in the new corporation until all the claims of creditors have been satisfied in cash or by some other method agreeable to them. Thus, if the corporation is insolvent, if the total of its assets is less than its liabilities, then there is no room in the new corporation for the old shareholders unless they contribute fresh capital. Otherwise, they benefit at the expense of creditors who have not been satisfied commensurate with their pre-existing priorities over the shareholders. In order to measure the fairness of a plan as between creditors and shareholders, some valuation of the debt- or corporation must be made to determine the issue of solvency or insolvency and so provide a guide for the apportionment of interests in the new reorganized business. Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 524, 61 S.Ct. 675, 85 L.Ed. 982 (1941). Although property may be valued in several ways, the courts have long held that earning capacity, the capitalization of future profits, is the appropriate method of valuation in connection with Chapter X proceedings. Consolidated Rock Products Co. v. Du Bois, supra at 526, 61 S.Ct. 675. This is because the very purpose of Chapter X is to preserve the going concern value of a business through the continuation of operations, and so avoid the uneconomic expedient of a forced sale of the assets. The sole issue that emerges here from the welter of charts, projections, audits, appraisals, expert opinion, and other evidence is the propriety of the District Court’s determination that Muskegon was insolvent. Insolvency was a question of fact to be determined by the District Court from all of the evidence. We do not hear this case de novo. Our function is only to determine whether the order of the District Court finding Muskegon insolvent is supported by substantial evidence. We have no right to disturb it unless we find it to be clearly erroneous, Rule 52(a) Fed.RuIes Civ. Proc.; nor need we pass upon the fairness of the plan with respect to creditors, since they have approved it and it was not questioned either in the District Court or here. The problem involved in determining the issue of solvency is emphasized by the judgmental character of valuation by future earning capacity and the divergent assumptions and conclusions expressed not only by the opposing parties, but also among various experts who testified in the case. We hold that, on the record before us, the District Court’s determination of insolvency, in his carefully prepared opinion, was supported by substantial evidence and is not clearly erroneous. In bankruptcy, a finding of insolvency is arrived at by a comparison of the assets (here being the capitalized value of future earnings) with liabilities. The calculation of either of these factors will thus affect the final determination. In its turn, each of these elements is a function of other calculations and projections which in this ease were the subjects of extensive expert testimony and are not the outcome of mere mathematical calculation. The capitalized value of the business is a function of its estimated average annual future earnings and the rate of capitalization, or “multiplier”. The earnings base is itself determined by two factors: projected future sales and the estimated profit margin on those sales. The plan proponents presented several witnesses with various appraisals of Jackson Crankshaft. Chief among these were Dr. DeSpelder and Mr. Welling. The shareholders presented the testimony of Mr. Taylor. Mr. Taylor was the only witness who ever found the company to be solvent — Welling, DeSpelder, and other witnesses offered by the proponents of the plan found insolvency, though to different degrees. Muskegon was also insolvent by a wide margin in the two appraisals ordered by the Court. As on all other relevant factors, these witnesses differed, and it is instructive to examine and compare their findings and opinions. Both Welling and Taylor used the same projected sales figures in ascertaining average pre-tax earnings for the next five years in the crankshaft business. Their results differed solely because Welling adopted an average profit rate of 6% of sales, while Taylor allowed a 7.7% rate of profit on those same sales. As the District Court pointed out, Welling’s figure seems more realistic in view of the past history of the company. Moreover, Mr. Taylor arrived at his figure by dropping the high and low profit years from the period 1961-65 and averaging the remaining three years. In so doing, he eliminated the very low (1.4%) figure for the year 1964. This omission is. particularly significant since the low profits of 1964 were the result of a risk inherent in Muskegon’s crankshaft business. In fact, it sustained heavy losses imposed on it that year due to unexpected demands for added production by the Ford Motor Company, a customer which accounts for 50% of Muskegon’s crankshaft business. Because of the need to satisfy Ford on short notice in order to retain its business, unskilled workers had to be hired and inefficient plant operation was required, with resulting high costs and low profits. (It should also be noted that Mr. Taylor contended for a very high multiplier, which again disregards the risk stemming from Muskegon’s heavy dependence on the Ford business^ — thus, in effect, twice eliminating this important factor from his appraisal.) Dr. DeSpelder estimated an average net profit over the next five years of $280,000, more than double Mr. Welling’s estimate of $136,980 and more than 50% above Mr. Taylor’s figure of $175,451. He differed with Taylor and Welling in applying a projected sales rate of approximately $500,000 more per year and in using a profit rate of 7% for the crankshaft business. It is illuminating to note that if Dr. DeSpelder’s assumed net pretax profit is applied to the sales figures used by Mr. Taylor, the resulting estimate of profit rates differs by only 0.1%, yet Dr. DeSpelder found insolvency while Mr. Taylor found solvency. The chief controversy in this case, however, does not center on the varying estimates of projected earnings, divergent as they may be. Rather, it focuses on the rate of capitalizing those earnings, the so-called “multiplier”. This figure is a rough estimate of the risk figure inherent in a particular business. All of the witnesses presented by the plan’s proponents agreed that a figure of 5 or less was the appropriate multiplier for the crankshaft business, indicating an expected return of 20% on investment. Mr. Taylor, however, applied a multiplier of 9.1 to his estimated earnings base and this was the main factor in his high valuation of the Jackson Crankshaft Division. The proponents’ witnesses arrived at a multiplier of 5 through an independent analysis of the risks in the character of the crankshaft business and the particular situation of Muskegon. Some of the factors on which they relied were the cyclical nature of the truck industry in general; the fact that Muskegon supplied only labor for one product and had no other ; the fact that it had only about seven customers; the dependence of Muskegon on one large customer which might decide to begin producing its own crankshafts or otherwise disrupt Muskegon’s profits as in 1964; the age and condition of the plant and equipment; and possible uncertainties in management, expenses and operations. Mr. Taylor, on the other hand, arrived at his 9.1 estimate of appropriate capitalization by mere mathematical calculation of the price-earnings ratios of a group of selected auto parts manufacturers listed on the stock exchange. The District Court rejected this sole dependence on stock market data, and we agree. Two factors lead to this rejection. First, of the 36 companies used by Mr. Taylor in his computations, few if any can be considered comparable to Muskegon. None had sales in 1964 of less than four times Muskegon’s sales of that year and some had more than 100 times its sales. Certainly a simple, unqualified or unadjusted calculation made from these figures cannot be accepted at face value. Second, we cannot sanction the direct application of ratios derived solely from the stock market in the valuation of a small, unlisted company with no market for its shares. While the price-earnings ratios of the larger companies in the same industrial grouping may be considered as relevant evidence to some extent, they cannot serve as a sole guide to value under the guise of infallible “market judgments”. As the District Court rightly emphasized, the stock market is daily influenced by factors of a speculative or emotional nature that do not necessarily enter into a realistic evaluation of long-run economic values. The pressure of fads and rumors often causes distortions in price ratios which should not be considered in a careful long-term valuation. Thus, even though Mr. Taylor could have referred in part to stock market figures, they cannot be accepted as the sole determinant of value here. Further, if Dr. DeSpelder’s figures are once again adjusted for comparison with Mr. Taylor’s, we find there is less difference than appears on the surface. Thus, if DeSpelder’s total valuation of $1,400,000 is superimposed on Taylor’s earnings base of $175,451, it appears that a multiplier of 8 results. This means that if DeSpelder had used the same earnings base as Taylor, he would have chosen a multiplier very close to Taylor’s. Since risk estimates are inherent both in the earnings base estimates (as to projected sales and profit rates) and in the calculation of the multiplier, as we noted in regard to the 1964 Ford order, it is apparent that in their overall appraisals of the risks and value of the Jackson Crankshaft Division, Taylor and DeSpelder differed very little. This is demonstrated by the proximity of their total appraised values: DeSpelder — $1,400,000; Taylor —$1,596,604. The other main appraisal, that of Mr. Welling, differed substantially from either of these two. Mr. Welling found a going concern value for the Jackson Division of only $684,900. This was the natural result of his use of lower sales, profit, and multiplier figures all in the same estimate. There is no correspondingly high counter-appraisal to balance Mr. Welling’s figures. Thus, the District Court would have the right to decide that although Taylor and DeSpelder were in substantial agreement on the value of the crankshaft business, DeSpelder’s appraisal was the more reliable. If Taylor had used Welling’s lower profit rate and earnings base, thus accounting for the Ford risk factor illustrated in 1964, as a counterbalance to his high mutliplier, his valuation would actually fall below that of Dr. DeSpelder — $1,246,518. Before turning to the other element of the Muskegon valuation, the going-concern appraisal of the wholly-owned Detroit Brick subsidiary, it may be helpful to focus on the other factor in the finding of insolvency, the liabilities. A miscalculation of liabilities can be as damaging as an error in valuation of assets. However, here, despite appellants’ contention, the District Court correctly found that the debtor corporation’s liabilities totalled $1,350,000 exclusive of accrued interest and administrative expenses. This figure is in substantial agreement with that contended for in the brief of SEC and appears both in the order confirming the plan on March 1, 1965, and in the opinion on the motion for rehearing dated October 8, 1965. The expenses of the Chapter X administration since 1961 will total approximately $200,000, as all the parties agree. Since the determination of liabilities is being made with the continuation of the business in mind, the statutory interest accruing on the creditors’ claims must also be considered as a liability before any interest is allocated to the stockholders. Otherwise, the creditors would be denied their “absolute priority”. A finding of solvency would necessitate the payment of interest at the statutory rate, so that accrued amount must be considered in determining solvency. Ruskin v. Griffiths, 269 F.2d 827 (2d Cir. 1959) cert. denied 361 U.S. 947, 80 S.Ct. 402, 4 L.Ed.2d 381 (1960). This accrual totals at least $300,000 and makes the total liabilities of Muskegon at least $1,850,000 exclusive of a contested tax claim of more than $42,000. The SEC estimated liabilities on July 1,1965 at $1,923,294. Thus, with liabilities of between $1,-850,000 and $1,900,000 the District Court would have had to find a value of at least $450,000 for the Detroit Brick & Block Company subsidiary in order to find solvency using Dr. DeSpelder’s estimate of the Jackson Crankshaft Division ($1,400,000) or, using Mr. Taylor’s valuation ($1,596,604), at least $253,396. According to Mr. Welling’s estimate, solvency would be almost impossible to find, since Detroit Brick would have to be worth more than the Jackson Division in order for their total value to equal or exceed the liabilities. It is apparent that on the key issue of solvency the valuation of Detroit Brick & Block assumes special importance. Dr. DeSpelder, using an earnings base of $77,700 and a multiplier of 4, found a going-concern value of $310,800. Mr. Taylor, however, arrived at a figure of $521,820, based on an estimated earnings base of $44,600 and a multiplier of 11.7. If Mr. Taylor’s earnings projection is used for both totals, thus focusing all risk and economic judgments on the choice of the multiplier or rate of capitalization, it will be seen that Dr. DeSpelder would have used a multiplier of almost 7, rather than 4. The main difference between DeSpelder and Taylor here is the high multiplier applied by Taylor. He testified that it was calculated by computing the price-earnings ratios of two comparable brick supply companies. However, it is clear that this mathematical operation alone cannot justify the use of such a high rate of capitalization, especially in the face of other evidence and the testimony of other equally qualified experts. First, there is some evidence that offers of $175,000 and $200,000 have been tendered for the purchase of the brick company in the recent past. Although these are by no means conclusive of full value, they are at least some evidence of what it would bring on the market. Second, the earnings records of Detroit Brick & Block show that over the past 18 years, it has sustained substantial losses in eight years and earned a profit in only ten. The net average annual pre-tax profit for the company was only $14,341, far below even Mr. Taylor’s low projection of $44,600 after taxes. Finally, the brick company is tied to its customers in the construction industry and shares their fortunes in that volatile and cyclical business, a factor which hardly justifies assigning it a multiplier higher than that used for Jackson Crankshaft in the auto parts industry. Considering all these factors, it cannot be said that the District Court’s failure to accept and adopt Mr. Taylor’s valuation in boto was wrong. This extensive review of the complex and conflicting evidence presented during the course of the hearings on solvency reveals one fundamental fact: the District Court would have had to accept each and every contention of the appellants at full face value in order even to approach a finding of solvency. The District Judge saw and heard the testimony of all of the expert witnesses and was in a much better position to pass upon their credibility than we are. He was familiar with the proceedings and the affairs of Muskegon. If any weight whatever is given to the voluminous evidence presented by the proponents of the plan of reorganization, then substantial support for the finding of insolvency is provided. In such a situation, the finding of insolvency can in no way be deemed clearly erroneous under Rule 52(a). Dudley v. Mealey, 147 F.2d 268 (2d Cir. 1945) cert. denied 325 U.S. 873, 65 S.Ct. 1415, 89 L.E.d. 1991 (1945); In re Plankinton Building Co., 148 F.2d 119 (7 Cir. 1945) cert. denied Harvey v. Grossman, 326 U.S. 729, 66 S.Ct. 36, 90 L.Ed. 483 (1945). The valuation of a business remains an art based on the use of informed, careful judgment (including that of the court), and it cannot be expected to yield mathematically precise results. Consolidated Rock Products Co. v. Du Bois, supra, 312 U.S. at 526, 61 S.Ct. 675. The unsecured creditors, most of whom elected to take cash, have already been delayed for more than five years in realizing on their claims. These creditors are satisfied with and have approved the plan of reorganization and are resisting the efforts of the preferred shareholders to share in the assets and further delay the closing of the estate. Although the unsecured creditors are not being made whole either in cash or stock and could not be so compensated in the reasonable future, the preferred shareholders still think that some provision should have been made in the plan for them to share in the assets of the debtor. They all had the opportunity to participate in the reorganized company by putting up some new money, but they declined to contribute anything to its capital. Instead, the preferred shareholders are complaining about the alleged unconscionable bargain the group of local businessmen will receive for their $200,000 investment, even though the shareholders declined to invest in the reorganized company. The shareholders paint a rosy picture about the prospects of the reorganized company over the next five years, but this fails to take into account that the investors could lose their money in the event of a business recession, strikes and labor stoppages in the reorganized company or in the plants of their customers, or other adverse conditions. The shareholders ought not to be permitted to gamble on the future of the reorganized company with the money owing to creditors that is so long past due. For these reasons, the judgment of the District Court is affirmed. . The proceedings were originated under Chapter XI on April 12, 1961, and thereafter, on motion of the Securities and Exchange Commission, were transferred to Chapter X. . 11 U.S.C. § 608. . The names of these four creditors and the amounts of their claims are not shown in the record filed in this Court. . The proponents of the amended plan presented several other witnesses in addition to DeSpelder and Welling. In general, witnesses Sanders and Wade, both CPA’s, corroborated Dr. DeSpelder’s opinion on the going concern value of the Jackson Crankshaft Division. Mr. Nicholson, an investment banker, used multipliers similar to those of DeSpelder, Sanders, and Wade, but projected a much lower earnings base ($112,000) and so found a value of only $448,000 for the crankshaft business. Finally, Mr. Zick, who testified at the summer hearings along with Mr. Welling, used a multiplier of 5 and found a value of only $389,000 for Jackson Crankshaft. Thus, every witness called by the proponents found Muskegon to be insolvent. The District Court appointed two appraisers to value the physical assets, based on a premise of liquidation rather than reorganization. These witnesses, Legg and Horton, together found a valuation of $634,980 at forced sale and $805,044 at fair market for the land, buildings, machinery and equipment of Jackson Crankshaft Division. Apparently, no discount factor was applied to the value of the accounts receivable in the Trustee’s balance sheets, despite the fact that they, too, might decline drastically in value if the company were to be liquidated rather than reorganized and continued. Although a liquidation valuation is not the proper method for determining solvency in reorganization hearings, and was not so used here,' the high degree of insolvency that these figures reveal makes the need for an equitable reorganization all the more clear so as to avoid further damage to the interested parties. . An additional risk factor, probably accounted for in the witnesses’ earnings projections, rather than the multiplier factor, is the necessity of funding Muskegon’s large deficiency in contributions to its employees’ pension funds. In order to make up these deficiencies, maintain current payments, and meet future increases that may be negotiated by the unions, Muskegon will experience a heavy drain on its income for many years to come. This is virtually a fixed cost as far as the amortization of past deficiencies is concerned and constitutes one of the major risks being assumed by the new owners. . See footnote 4, supra. . The figure which appears in paragraph 4 of the order of March 1, 1965, is actually $1,260,150.78. However, this is exclusive of secured debts then owing. . If $31,019 of liabilities of the defunct Ridge Sales subsidiary is also included, the Court’s finding almost exactly matches that of the SEC. . Of the other witnesses, Mr. Nicholson found a going-concern value for Detroit Brick of approximately $200,000 and Mr. Zick estimated a liquidation value of $230,000 after finding a going-concern value of only $74,635. The Legg-Horton liquidation appraisal of the physical assets of Detroit Brick showed $191,974 at fair market value and $152,525 at forced sale. . If post-tax figures were used for the average annual profit 1948-65, thus making a more accurate comparison, the difference between Taylor’s projection and the actual earnings history would be even greater. Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:

songer_procedur

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. GEORGE v. PROTECTIVE LIFE INS. CO. No. 8261. Circuit Court of Appeals, Sixth Circuit. April 8, 1940. Grover N. McCormick, of Memphis, Tenn., for appellant. King, Taylor & King, of Memphis, Tenn., for appellee. Before HICKS and SIMONS, Circuit Judges. PER CURIAM. This cause came on this day to be heard upon the motion of the appellee to dismiss the appeal with prejudice, and It appearing to the court from the agreement of counsel that the cases of Columbian Mutual Life Insurance Company v. James O. Martin et al., 136 S.W.2d 52, and the National Life & Accident Insurance Company v. Lela George, et al., have been decided by the Supreme Court of the State of Tennessee, and that the said cases involve the same questions and facts presented by the appeal in this case and the said decisions of the Supreme Court of Tennessee, the cases just mentioned above, are final and are adverse to the contentions of the appellant here, and It further appearing that the defendant tendered with its answer and cross-bill the sum of $127.06, It is accordingly ordered and adjudged that complainant’s appeal and the same is hereby dismissed, with prejudice, at the costs of the complainant. And, The defendant and cross-complainant., having tendered and paid into the hands of the clerk of the United States District Court for the Western Division of the Western District of Tennessee at Memphis the sum of $127.06, being the amount paid the defendant and cross-complainant as premiums on the said policy sued on, and interest on the same, It is, therefore, further ordered and adjudged that the amount of said tender be applied by the clerk to the payment of the costs of this cause, and all of said amount not necessary to pay the costs of this cause the clerk will pay to G. N. McCormick, attorney of record for the appellant. All of which is ordered and adjudged. No opinion for publication. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

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. ZWICKLER v. KOOTA, DISTRICT ATTORNEY OF KINGS COUNTY. No. 29. Argued October 12, 1967. Decided December 5, 1967. Emanuel Redfield argued the cause and filed a brief for appellant. Samuel A. Hirshowits, First Assistant Attorney General of New York, argued the cause for appellee. With him on the brief were Louis J. Lefkowits, Attorney General, and Irving L. Rollins, George D. Zuckerman and Brenda SolojJ, Assistant Attorneys General. Jack Greenberg, Melvyn Zarr and Anthony G. Amsterdam filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae, urging reversal. Harry Brodbar and Raymond J. Scanlan filed a brief for the National District Attorneys Association, as amicus curiae, urging affirmance. Mr. Justice Brennan delivered the opinion of the Court. Section 781-b of the New York Penal Law makes it a crime to distribute in quantity, among other things, any handbill for another which contains any statement concerning any candidate in connection with any election of public officers, without also printing thereon the name and post office address of the printer thereof and of the person at whose instance such handbill is so distributed. Appellant was convicted of violating the statute by distributing anonymous handbills critical of the record of a United States Congressman seeking re-election at the 1964 elections. The conviction was reversed, on state law grounds, by the New York Supreme Court, Appellate Term, and the New York Court of Appeals affirmed without opinion, 16 N. Y. 2d 1069, 266 N. Y. S. 2d 140, 213 N. E. 2d 467. Thereafter appellant, invoking the District Court’s jurisdiction under the Civil Rights Act, 28 U. S. C. § 1343, and the Declaratory Judgment Act, 28 U. S. C. § 2201, sought declaratory and injunctive relief in the District Court for the Eastern District of New York on the ground that, on its face, the statute was repugnant to the guarantees of free expression secured by the Federal Constitution. His contention, below and in this Court, is that the statute suffers from impermissible “overbreadth” in that its sweep embraces anonymous handbills both within and outside the protection of the First Amendment. Cf. Talley v. California, 362 U. S. 60. A three-judge court, one judge dissenting, applied the doctrine of abstention and dismissed the complaint, remitting appellant to the New York courts to assert his constitutional challenge in defense of any criminal prosecution for any future violations of the statute or, short of this, to the institution of “an action in the state court for a declaratory judgment.” 261 F. Supp. 985, 993. Because appellant’s appeal presents an important question of the scope of the discretion of the district courts to abstain from deciding the merits of a challenge that a state statute on its face violates the Federal Constitution, we noted probable jurisdiction. 386 U. S. 906. We reverse. We shall consider first whether abstention from the declaratory judgment sought by appellant would have been appropriate in the absence of his request for injunc-tive relief, and second, if not, whether abstention was nevertheless justified because appellant also sought an injunction against future criminal prosecutions for violation of § 781-b. I. During most of the Nation’s first century, Congress relied on the state courts to vindicate essential rights arising under the Constitution and federal laws. The only exception was the 25th section of the Judiciary Act of 1789, 1 Stat. 85, providing for review in this Court when a claim of federal right was denied by a state court. But that policy was completely altered after the Civil War when nationalism dominated political thought and brought with it congressional investiture of the federal judiciary with enormously increased powers. The Act of March 3, 1875, was the principal . . measure of the broadening federal domain in the area of individual rights,” McNeese v. Board of Education, 373 U. S. 668, 673. By that statute . . Congress gave the federal courts the vast range of power which had lain dormant in the Constitution since 1789. These courts ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reli-ances for vindicating every right given by the Constitution, the laws, and treaties of the Untied States.” (Emphasis added.) Frankfurter & Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 65. Indeed, even before the 1875 Act, Congress, in the Civil Rights Act of 1871, subjected to suit, “[e]very person who, under color of any statute . . . subjects, or causes to be subjected, any citizen of the United States or other person ... to the deprivation of any rights . . . secured by the Constitution and laws . . . ,” 42 U. S. C. § 1983; and gave the district courts “original jurisdiction” of actions “[t]o redress the deprivation, under color of any State law ... of any right . . . secured by the Constitution . . . .” 28 U. S. C. § 1343 (3). In thus expanding federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, “. . . to guard, enforce, and protect every right granted or secured by the Constitution of the United States . . . ,” Robb v. Connolly, 111 U. S. 624, 637. “We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum.” Stapleton v. Mitchell, 60 F. Supp. 51, 55; see McNeese v. Board of Education, 373 U. S., at 674, n. 6. Cf. Cohens v. Virginia, 6 Wheat. 264, 404. The judge-made doctrine of abstention, first fashioned in 1941 in Railroad Commission v. Pullman Co., 312 U. S. 496, sanctions such escape only in narrowly limited “special circumstances.” Propper v. Clark, 337 U. S. 472, 492. One of the “special circumstances” — that thought by the District Court to be present in this case— is the susceptibility of a state statute of a construction by the state courts that would avoid or modify the constitutional question. Harrison v. NAACP, 360 U. S. 167. Compare Baggett v. Bullitt, 377 U. S. 360. But we have here no question of a construction of § 781-b that would “avoid or modify the constitutional question.” Appellant’s challenge is not that the statute is void for “vagueness,” that is, that it is a statute “which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . . . .” Connally v. General Construction Co., 269 U. S. 385, 391. Rather his constitutional attack is that the statute, although lacking neither clarity nor precision, is void for “overbreadth,” that is, that it offends the constitutional principle that “a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama, 377 U. S. 288, 307. See Aptheker v. Secretary of State, 378 U. S. 500, 508-509; NAACP v. Button, 371 U. S. 415, 438; Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293; Shelton v. Tucker, 364 U. S. 479, 488; Schware v. Board of Bar Examiners, 353 U. S. 232, 246; Martin v. City of Struthers, 319 U. S. 141, 146-149; Cantwell v. Connecticut, 310 U. S. 296, 304-307; Schneider v. State, 308 U. S. 147, 161, 165. Ap-pellee does not contest appellant’s suggestion that § 781-b is both clear and precise; indeed, appellee concedes that state court construction cannot narrow its allegedly indiscriminate cast and render unnecessary a decision of appellant’s constitutional challenge. See Aptheker v. Secretary of State, 378 U. S. 500. The analysis in United States v. Livingston, 179 F. Supp. 9, 12-13, aff’d, Livingston v. United States, 364 U. S. 281, is the guide to decision here: “Regard for the interest and sovereignty of the state and reluctance needlessly to adjudicate constitutional issues may require a federal District Court to abstain from adjudication if the parties may avail themselves of an appropriate procedure to obtain state interpretation of state laws requiring construction. Harrison v. N. A. A. C. P., 360 IT. S. 167. The decision in Harrison, however, is not a broad encyclical commanding automatic remission to the state courts of all federal constitutional questions arising in the application of state statutes. N. A. A. C. P. v. Bennett, 360 U. S. 471. Though never interpreted by a state court, if a state statute is not fairly subject to an interpretation which will avoid or modify the federal constitutional question, it is the duty of a federal court to decide the federal question when presented to it. Any other course would impose expense and long delay upon the litigants without hope of its bearing fruit.” In Turner v. City of Memphis, 369 U. S. 350 (per curiam), we vacated an abstention order which had been granted on the sole ground that a declaratory judgment action ought to have been brought in the state court before the federal court was called upon to consider the constitutionality of a statute alleged to be violative of the Fourteenth Amendment. In McNeese v. Board of Education, 373 U. S. 668, we again emphasized that abstention cannot be ordered simply to give state courts the first opportunity to vindicate the federal claim. After examining the purposes of the Civil Rights Act, under which that action was brought, we concluded that “[w]e would defeat those purposes if we held that assertion of a federal claim in a federal court must await an attempt to vindicate the same claim in a state court.” 373 U. S., at 672. For the “recognition of the role of state courts as the final expositors of state law implies no disregard for the primacy of the federal judiciary in deciding questions of federal law.” England v. Louisiana State Board of Medical Examiners, 375 U. S. 411, 415-416. These principles have particular significance when, as in this case, the attack upon the statute on its face is for repugnancy to the First Amendment. In such case to force the plaintiff who has commenced a federal action to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect. See Dombrowski v. Pfister, 380 U. S. 479, 486-487; Baggett v. Bullitt, supra, at 378-379; NAACP v. Button, supra, at 433; cf. Garrison v. Louisiana, 379 U. S. 64, 74-75; Smith v. California, 361 U. S. 147. It follows that unless appellant’s addition of a prayer for injunctive relief supplies one, no “special circumstance” prerequisite to application of the doctrine of abstention is present here, Baggett v. Bullitt, 377 U. S. 360, 375-379, and it was error to refuse to pass on appellant’s claim for a declaratory judgment. HH I — I In support of his prayer for an injunction against further prosecutions for violation of § 781-b, appellant’s amended complaint alleges that he desires to continue to distribute anonymous handbills in quantity “in connection with any election of party officials, nomination for public office and party position that may occur subsequent to said election campaign of 1966.” He further alleges that “[b]ecause of the previous prosecution of plaintiff for making the distribution of the leaflet . . . plaintiff is in fear of exercising his right to make distribution as aforesaid and is in danger of again being prosecuted therefor, unless his right of expression is declared by this court, without submitting himself to the penalties of the statute.” The majority below was of the view that, in light of this prayer, abstention from deciding the declaratory judgment issue was justified because appellant had made no showing of “special circumstances” entitling him to an injunction against criminal prosecution. Appellee supports this holding by reliance upon the maxim that a federal district court should be slow to act “where its powers are invoked to interfere by injunction with threatened criminal prosecutions in a state court.” Douglas v. City of Jeannette, 319 U. S. 157, 162. We have recently recognized the continuing validity of that pronouncement. Dombrowski v. Pfister, 380 U. S. 479, 483-485. However, appellant here did not, as did the plaintiffs in Douglas, 319 U. S., at 159, seek solely to “restrain threatened criminal prosecution of [him] in the state courts . . . .” Rather, he also requested a declaratory judgment that the state statute underlying the apprehended criminal prosecution was unconstitutional. The majority below, although recognizing that Douglas might be inapposite to this case, 261 F. Supp., at 990, read Dombrowski v. Pfister as requiring abstention from considering appellant’s request for a declaratory judgment in the absence of a showing by appellant of “special circumstances to justify the exercise of federal court jurisdiction . . .” to grant injunctive relief. 261 F. Supp., at 991. Since the majority found no “special circumstances” justifying that relief, the majority concluded that it was also required to abstain from considering the request for declaratory relief. This conclusion was error. Dombrowski teaches that the questions of abstention and of injunctive relief are not the same. The question of the propriety of the action of the District Court in abstaining was discussed as an independent issue governed by different considerations. We squarely held that “the abstention doctrine is inappropriate for cases such as the present one where . . . statutes are justifiably attacked on their face as abridging free expression . . . .” 380 U. S., at 489-490. This view was reaffirmed in Keyishian v. Board of Regents, 385 U. S. 589, 601, n. 9, when a statute was attacked as unconstitutional on its face and we said, citing Dombrowski and Baggett v. Bullitt, supra, “[t]his is not a case where abstention pending state court interpretation would be appropriate . . . .” It follows that the District Court’s views on the question of injunctive relief are irrelevant to the question of abstention here. For a request for a declaratory judgment that a state statute is overbroad on its face must be considered independently of any request for injunctive relief against the enforcement of that statute. We hold that a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction. Douglas v. City of Jeannette, supra, is not contrary. That case involved only the request for injunctive relief. The Court refused to enjoin prosecution under an ordinance declared unconstitutional the same day in Murdock v. Pennsylvania, 319 U. S. 105. Comity between the federal and Pennsylvania courts was deemed sufficient reason to justify the holding that “in view of the decision rendered today in Murdock ... we find no ground for supposing that the intervention of a federal court, in order to secure petitioners’ constitutional rights, will be either necessary or appropriate.” 319 U. S., at 165. It will be the task of the District Court on the remand to decide whether an injunction will be “necessary or appropriate” should appellant’s prayer for declaratory relief prevail. We express no view whatever with respect to the appropriateness of declaratory relief in the circumstances of this case or the constitutional validity of the law. The judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion. * s0 „.dered, N. Y. Penal Law § 781-b (now superseded in identical language by N. Y. Election Law § 457, see Laws 1965, c. 1031, at 1782-1783): “No person shall print, publish, reproduce or distribute in quantity, nor order to be printed, published, reproduced or distributed by any method any handbill, pamphlet, circular, post card, placard or letter for another, which contains any statement, notice, information, allegation or other material concerning any political party, candidate, committee, person, proposition or amendment to the state constitution, whether in favor of or against a political party, candidate, committee, person, proposition or amendment to the state constitution, in connection with any election of public officers, party officials, candidates for nomination for public office, party position, proposition or amendment to the state constitution without also printing or reproducing thereon legibly and in the English language the name and post-office address of the printer thereof and of the person or committee at whose instance or request such handbill, pamphlet, circular, post card, placard or letter is so printed, published, reproduced or distributed, and of the person who ordered such printing, publishing, reproduction or distribution, and no person nor committee shall so print, publish, reproduce or distribute or order to be printed, published, reproduced or distributed any such handbill, pamphlet, circular, post card, placard or letter without also printing, publishing, or reproducing his or its name and post-office address thereon. A violation of the provisions of this section shall constitute a misdemeanor. “The term ‘printer’ as used in this section means the principal who or which by independent contractual relationship is responsible directly to the person or committee at whose instance or request a handbill, pamphlet, circular, post card, placard or letter is printed, published, reproduced or distributed by such principal, and does not include a person working for or employed by such a principal.” “In our opinion, the People failed to establish that defendant distributed anonymous literature ‘in quantity’ in violation of the provisions of Section 781 (b) [sic] of the Penal Law. We do not reach the question of the constitutionality of the statute involved.” People v. Zwickler, Sup. Ct., App. Term, Kings County, April 23, 1965 (unreported), as quoted in Zwickler v. Koota, 261 F. Supp. 985, 987. Appellee questions the statement of the majority below that “[t]he complaint. . . alleges a case or controversy which is within the adjudicatory power of this court. Douglas v. City of Jeannette, 319 U. S. 157, 162.” 261 F. Supp., at 989. Notwithstanding this statement, we are not persuaded, in light of its decision to abstain, that the majority below considered the prerequisites to a declaratory judgment or that these issues were in fact adjudicated. “Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273. It will be for the District Court on the remand to decide whether appellant’s allegations entitle him to a declaratory judgment on the constitutional question. It is better practice, in a case raising a federal constitutional or statutory claim, to retain jurisdiction, rather than to dismiss, see Note, Federal-Question Abstention: Justice Frankfurter’s Doctrine in an Activist Era, 80 Harv. L. Rev. 604 (1967), but other courts have also ordered dismissal. Compare Government & Civic Employees Organizing Committee, CIO v. Windsor, 353 U. S. 364; Shipman v. DuPre, 339 U. S. 321, with Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368; Local SSSB, United Marine Div., Int'l Long shoremen’s Assn. v. Battle, 101 F. Supp. 650 (D. C. E. D. Va.), aff’d per curiam, 342 U. S. 880. See generally Note, Judicial Abstention From the Exercise of Federal Jurisdiction, 59 Col. L. Rev. 749, 772-774 (1959). New York provides a Declaratory Judgment remedy, N. Y. Civ. Prac. § 3001. See De Veau v. Braisted, 5 App. Div. 2d 603, 174 N. Y. S. 2d 596 (2d Dept.), aff’d, 5 N. Y. 2d 236, 183 N. Y. S. 2d 793, 157 N. E. 2d 165, aff’d, 363 U. S. 144. Thus Congress did not exercise the grant under Art. Ill, § 2, cl. 1, of the Constitution: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority Original “arising under” jurisdiction was vested in the federal courts by § 11 of the Act of February 13, 1801, c. 4, 2 Stat. 92, but it was repealed only a year later by § 1 of the Act of March 8, 1802, c. 8, 2 Stat. 132. An earlier version of the Judiciary Act of 1789, which died in committee, provided for jurisdiction in the federal courts “ ‘of all cases of federal jurisdiction, whether in law or equity above the value of five hundred dollars’...” Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 61 (1923). See generally Frankfurter & Landis, The Business of the Supreme Court: A Study in the Federal Judicial System, c. 1. “The history of the federal courts is woven into the history of the times. The factors in our national life which came in with reconstruction are the same factors which increased the business of the federal courts, enlarged their jurisdiction, modified and expanded their structure.” Frankfurter & Landis, supra, at 59; see also Frankfurter, Distribution of Judicial Power Between United States and State Courts, 13 Cornell L. Q. 499, 507-511 (1928). The statute granted the district courts “original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority ...” Act of March 3, 1875, § 1, 18 Stat. 470. See generally Hart & Wechsler, The Federal Courts and the Federal System 727-733; Wright, Federal Courts § 17; Chadboum & Levin, Original Jurisdiction of Federal Questions, 90 U. Pa. L. Rev. 639 (1942); Forrester, Federal Question Jurisdiction and Section 5, 18 Tulane L. Rev. 263 (1943); Forrester, The Nature of a “Federal Question,” 16 Tulane L. Rev. 362 (1942); Mishkin, The Federal “Question” in the District Courts, 53 Col. L. Rev. 157 (1953). “This development in the federal judiciary, which in the retrospect seems revolutionary, received hardly a contemporary comment.” Frankfurter & Landis, supra, at 65. While there is practically no legislative history of the Act, see id., at 65-69, for a summary of what history is available, commentators are generally agreed that a broad grant of jurisdiction was intended. See, e. g., Forrester, The Nature of a “Federal Question,” 16 Tulane L. Rev. 362, 374-385 (1942); Mishkin, The Federal “Question” in the District Courts, 53 Col. L. Rev. 157, 160 (1953). This is not to say that this Court has read the congressional grant of power in the Act of 1875 as equated with the potential for federal jurisdiction found in Article III of the Constitution. See, e. g., National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U. S. 582, 613-615 (opinion of Rutledge, J.); Shoshone Mining Co. v. Rutter, 177 U. S. 505. Five Civil Rights Acts were passed between 1866 and 1875. See 14 Stat. 27 (1866), 16 Stat. 140 (1870), 16 Stat. 433 (1871), 17 Stat. 13 (1871), 18 Stat. 335 (1875). Only § 1 of the Act of April 20, 1871, 17 Stat. 13, presently codified as 42 U. S. C. § 1983, achieved measurable success in later years. See generally Note, The Civil Rights Act of 1871: Continuing Vitality, 40 Notre Dame Law. 70 (1964). See, e. g., City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U. S. 639; Government & Civic Employees Organizing Committee, CIO v. Windsor, 353 U. S. 364; Leiter Minerals, Inc. v. United States, 352 U. S. 220; Albertson v. Millard, 345 U. S. 242; Shipman v. DuPre, 339 U. S. 321; Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368; American Federation of Labor v. Watson, 327 U. S. 582; Alabama State Federation of Labor v. McAdory, 325 U. S. 450; Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101; Chicago v. Fieldcrest Dairies, Inc., 316 U. S. 168. See,generally Wright, The Abstention Doctrine Reconsidered, 37 Tex. L. Rev. 815 (1959); Note, Judicial Abstention From the Exercise of Federal Jurisdiction, 59 Col. L. Rev. 749 (1959); Note, Federal-Question Abstention: Justice Frankfurter’s Doctrine in an Activist Era, 80 Harv. L. Rev. 604 (1967); Note, Doctrine of Abstention: Need of Reappraisal, 40 Notre Dame Law. 101 (1964). Even when parties are sent to state court for clarification of state law, the federal question may be reserved for decision by the district court. England v. Louisiana State Board of Medical Examiners, 375 U. S. 411. Other “special circumstances” have been found in diversity cases, see, e. g., Clay v. Sun Insurance Ltd., 363 U. S. 207; Louisiana Power & Light Co. v. City of Thibodaux, 360 U. S. 25; Meredith v. Winter Haven, 320 U. S. 228; but see County of Allegheny v. Frank Mashuda Co., 360 U. S. 185; cf. Note, Abstention and Certification in Diversity Suits: “Perfection of Means and Confusion of Goals,” 73 Yale L. J. 850, and cases cited therein; and in cases involving possible disruption of complex state administrative processes, see, e. g., Alabama Public Serv. Comm’n v. Southern R. Co., 341 U. S. 341; Burford v. Sun Oil Co., 319 U. S. 315; cf. County of Allegheny v. Frank Mashuda Co., 360 U. S. 185; Louisiana Power & Light Co. v. City of Thibodaux, 360 U. S. 25. See generally Wright, Federal Courts § 52; Note, 59 Col. L. Rev., supra, at 757-762. A lower court held “void for indefiniteness” a predecessor statute of § 781-b. People v. Clampitt, 34 Misc. 2d 766, 222 N. Y. S. 2d 23 (Ct. Spec. Sess., N. Y. City, 1961). Thereupon the legislature amended the statute to its present form, providing that an offense could not be made out under it until whatever literature might be “printed”’ or “reproduced” might also be “distributed.” The constitutionality of the amended statute has not been determined in the New York courts. For the different constitutional considerations involved in attacks for “vagueness” and for “overbreadth” see Keyishian v. Board of Regents, 385 U. S. 589, 603-604, 608-610. We have frequently emphasized that abstention is not to be ordered unless the state statute is of an uncertain nature, and is obviously susceptible of a limiting construction. Harman v. Forssenius, 380 U. S. 528, 534; Davis v. Mann, 377 U. S. 678, 690; Baggett v. Bullitt, 377 U. S. 360, 375-379; England v. Louisiana State Board of Medical Examiners, 375 U. S. 411, 415-416; McNeese v. Board of Education, 373 U. S. 668, 673, 674; NAACP v. Bennett, 360 U. S. 471; City of Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77, 84; Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105; Note, 80 Harv. L. Rev., supra, at 605; Note, 40 Notre Dame Law., supra, n. 10, at 102. Of course appellant must establish the elements governing the issuance of a declaratory judgment. See n. 3, supra. Appellant urges that these allegations refute appellee’s suggestion in his Motion to Dismiss that “[s]ince the political literature appellant intended to distribute all related to the 1966 congressional candidacy of Abraham Multer . . . , this matter now might be properly dismissed for mootness.” This dispute will be part of the issues to be decided by the District Court on the remand. See n. 3, supra. Multer has since been elected to the Supreme Court of New York and will take office on January 1, 1968. New York Times, p. 31, col. 2, November 8, 1967. Our discussion of the issue of injunctive relief in Dombrowski is at 380 U. S., at 483-489, and our discussion of the issue of abstention is at 489-492. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:

songer_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. STEVENS BROS. FOUNDATION, INC., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 17332. United States Court oí Appeals Eighth Circuit. Nov. 15, 1963. Frank J. Hammond, of Briggs & Morgan, St. Paul, Minn., John M. Sullivan and John J. King, St. Paul, Minn., on the brief, for petitioner. Ralph A. Muoio, Attorney, Dept, of Justice, Washington, D. C., Louis F. Oberdorfer, Asst. Atty. Gen., Washington, D. C., and Meyer Rothwacks, Attorney, Dept, of Justice, Wash., D. C., on the brief, for respondent. Before SANBORN and MATTHES, Circuit Judges, and ROBINSON, District Judge. MATTHES, Circuit Judge. 'This case is before us on petition to review a decision of the Tax Court which sustained, to a large extent, the Commissioner’s assessment of deficiencies in corporate income and personal holding company taxes, and penalties against Stevens Bros. Foundation, Inc. (Foundation). The questions on review are whether the Tax Court erred in holding that: (1) Foundation had — - (a) not been operated exclusively for charitable purposes during its taxable years 1948 through 1955; (b) unreasonably accumulated income during its taxable years 1952 through 1958; and therefore that Foundation was not exempt from taxation as a charitable organization during its taxable years 1948 through 1958. (2) The Commissioner did not abuse .his discretion in retroactively revoking a 1947 ruling exempting Foundation from •taxation as a charitable organization. (3) Foundation was a personal holding company for the taxable years 1952 through 1954, and 1956 through 1958. (4) Foundation was subject to additions to tax for failure to file corporation income tax returns for its taxable years 1948 through 1954, and for failure to file personal holding company tax returns for its taxable years 1952, 1953, and 1954. (5) . Foundation failed to prove that it incurred capital losses of $9,849.40 due to the worthlessness of certain securities it held. (6) Foundation received ordinary income of $25,778.24 from the Cheatham Lock project in 1955, rather than a long-term capital gain of $48,306.44 and an ordinary loss of $22,528.20. The basic facts, in the main stipulated and undisputed, are set forth at length in the Tax Court’s opinion, 39 T.C. IT' (1962). Certain background features of this controversy are stated in Stevens Brothers & Miller-Hutchinson Co. v. Commissioner, 24 T.C. 953 (1955). Rather than reiterate the facts in detail, we need only restate those necessary to highlight the nature of the issues now before us. Foundation was incorporated under the laws of Delaware on December 31, 1942, by Edward Fenton Stevens (Stevens), his wife, and two of his brothers, and maintains its principal office in St. Paul, Minnesota. Six other persons — related to Stevens either by blood or marriage— were subsequently admitted to membership in Foundation. In 1943, Foundation applied for exemption from federal income taxes as a charitable corporation, and by letter of May 1, 1947, was granted exempt status by the Commissioner, subject to redetermination if Foundation should change its character or purpose or its method of operation. There is no doubt that Foundation was organized for charitable purposes and that its charter so provided. The four founders of Foundation were also partners in Stevens Bros. Contractors (Partnership), and shared equally in Partnership’s profits until the death of one partner in 1955; thereafter, the remaining three persons shared equally. During the years here involved, Partnership owned two-thirds of the stock of a construction company known as Stevens Bros. & Miller-Hutchinson Company, Inc. (Corporation). Stevens was president of Corporation and R. C. Hutchinson— who had no interest in Foundation or Partnership — was its secretary-treasurer. In 1947, Hutchinson, who was then in active charge of Corporation, consulted with Stevens about bidding on a contract to build the floor at the Algiers Locks in Louisiana. The Government required a bid bond, and the surety company had informed Hutchinson that it would not issue a bond on Corporation’s bid unless an additional $50,000 in cash was absolutely subordinated to the contract. “[Corporation's funds were pretty well tied up” at that time in other jobs, and the bank with which Corporation normally did its business refused to lend it the additional money. On May 29, 1947, Foundation’s board of directors agreed to advance $50,000 to Corporation in return for one-third of the profits from the job, plus repayment of the advance. Shortly thereafter, Hutchinson advised Foundation that the surety company now insisted on having $75,000 subordinated to the contract instead of the previous $50,000 requirement. On July 1, 1947, the earlier agreement was cancelled, and Foundation agreed to advance the larger amount to Corporation in return for one-half of the profits from the contract, plus repayment of the advance. Corporation’s bid was accepted, and Foundation advanced the $75,000. In 1948, Foundation advanced an additional $40,000 to Corporation to pay for certain material required before further work could be done on the project. No additional consideration was received by Foundation for this $40,000, but the sum was ultimately returned. Before the Algiers Lock floor contract was completed, Corporation bid on the contract for erection of the walls at the same lock, received the award, and unsuccessfully attempted to secure a bond for the contract bid without being required to furnish additional funds. After Corporation’s bank once again would not advance the funds, the agreement between Foundation and Corporation covering the floor contract was extended to the wall contract, and the $75,000 previously advanced was left with Corporation. Before the wall contract was completed, Corporation was invited by T. L. James & Company, Inc. (James) to bid on the contract for the Cheatham Lock project in Tennessee. James and Corporation were awarded the contract and agreed to divide the profits from the project equally. Since Foundation then extended the financial terms of the Algiers Lock project agreement to cover the Cheatham Lock project, half of Corporation’s share of the profits under the Cheatham contract was to go to Foundation. In addition to the $75,000 covered by the extended agreement, Foundation also advanced $25,000 on August 20, 1951, and $50,000 on October 4, 1951 for use on the Cheatham Lock project. The $75,000 original advance and the $75,000 additional investment in the Cheatham Lock project in 1951 were returned to Foundation about 1953, and its construction project relationship with Corporation was terminated in 1954. Foundation was adequately compensated for its involvement in the construction projects, and no part of the profits it derived from them was diverted to its members. Sometime in 1947 or 1948, Stevens secured a patent for a therapeutic heating device for Foundation. The costs of developing and manufacturing the heaters were incurred by Partnership and treated as a gift by it to Foundation. Foundation distributed free of charge to hospitals, old folks’ homes, and individuals about 100 heaters worth approximately $4,510.25. About 1952, Foundation began making educational loans to college students. Repayment was waived in the case of most or all of the 32 loans, totaling $4,605, made during Foundation’s taxable years 1953 through 1955. For its taxable years 1956 through 1958, Foundation made 36 loans, totaling $7,496, which are extended without question when a student advances a good reason for delay in payment. Foundation’s books indicate receipts, disbursements and student loans as foilows: Contribu-Contribu- tions retions, Fiscal ceived and Gifts, Year other in-Grants, Student Surplus Through come Expenses Etc. Loans Balance 1947 $105,611.75 139.87 4,227.50 -0-101,244.38 1948 87,810.98 27.00 1,245.25 -0-187,783.11 1949 35,024.83 19,315.75 235.00 -0-203,257.19 1950 181,471.85 24,715.33 1,825.00 -0-358,188.71 1951 94,967.41 19,237.00 1,000.00 -0-432,919.12 1952 73,782.91 19,230.00 1,250.00 -0-486,222.03 1953 38,317.89 19,295.00 2,090.00 -0-503,154.92 1954 19,741.79 9,630.00 3,931.64 -0-509,335.07 1955 20,680.41 1,450.00 2,015.00 -0-526,550.48 1956 14,331.00 1,392.20 2,150.00 770.00 537,339.28 1957 24,278.26 3,571.00 1,600.00 1,725.00 556,446.54 1958 49,014.52 2,050:55 1,725.00 5,001.00 601,685.51 Total $745,033.60 $120,053.70 $23,294.39 $7,496.00 Partnership loaned certain sums of money to Foundation from February, 1946, to October, 1953. The total outstanding on the first day of any month during that period ranged from $496,-973.71 to $969,211.62, and averaged $783,266.59 for that period. Foundation paid no interest on these loans through 1948, and thereafter until 1954 paid various rates of interest. Since 1954 Foundation has not borrowed funds from Partnership or from any other source and has not paid any interest to Partnership. At the time of trial herein, Foundation’s investments had a total value of $950,000. On or before August 20, 1953, Foundation’s members determined a plan to accumulate $1,000,000 in Foundation, from which they calculated an annual income of $50,000 could be derived. They deemed this income sufficient to meet expenses and still carry out Foundation’s charitable purposes. On information returns for each of its taxable years 1948 through 1954, Foundation answered “No” to the following questions: “Have you had any sources of income or engaged in any activities which have not previously been reported to the Bureau? .......... (Yes or No) If so, attach detailed statement.” By letter dated August 24, 1954, Commissioner notified Foundation that its tax exempt status was revoked. By letter dated September 8, 1954, the District Director at St. Paul notified Foundation that it was liable for federal corporation income tax returns and enclosed forms for the years 1948 to 1953, inclusive. After audit, various conferences and other negotiations, Commissioner notified Foundation of specific deficiences by letter of June 14, 1960. 1 — Exemption Issue (a) — Non-Charitable Operation Under § 101(6) of the Internal Revenue Code of 1939 and § 501(e) (3) of the 1954 Code, an organization is entitled to be exempt from taxation if it satisfies the following conditions: (1) it must be ■organized and operated exclusively for religious, charitable * * * or educational purposes; (2) no part of its net ■earnings can inure to the benefit of any private shareholder or individual; (3) it cannot engage in substantial political er lobbying activity. The crucial question here is whether Foundation’s participation in the Algiers and Cheatham Lock projects supports the Tax Court’s finding that it was not operated “exclusively” for charitable purposes and that such involvement was “to a substantial extent an effort to benefit its founders.” In our view, this is largely a fact issue and, being so, the finding of the Tax Court must stand unless it is clearly erroneous or was induced by an erroneous view of the law. See and compare Samuel Friedland Foundation v. United States, D.N.J., 144 F.Supp. 74, 85 (1956); Cleveland Chiropractic College v. C. I. R., 8 Cir., 312 F.2d 203, 204 (1963). The meaning of the term “exclusively” as used in the statutes is no longer open to debate. In Better Business Bureau of Wash., D. C. v. United States, 326 U.S. 279, 66 S.Ct. 112, 90 L. Ed. 67 (1945), the Supreme Court, in giving effect to § 811(b) (8) of the Social Security Act (in terms substantially the same as § 501(c) (3) of Int.Rev.Code), made this pronouncement: “In this instance, in order to fall within the claimed exemption, an organization must be devoted to educational purposes exclusively. This plainly means that the presence of a single noneducational purpose, if substantial in nature, will destroy the exemption regardless of the number or importance of truly educational purposes.” 326 U.S. at 283, 66 S.Ct. at 114, 90 L.Ed. 67. See also, Duffy v. Birmingham, 8 Cir., 190 F.2d 738 (1951); American Institute for Economic Research v. United States, Ct.Cl., 302 F.2d 934 (1962), cert. denied, 372 U.S. 976, 83 S.Ct. 1109, 10 L.Ed.2d 141 (1963); Scripture Press Foundation v. United States, Ct.Cl., 285 F.2d 800 (1961), cert. denied, 368 U.S. 985, 82 S. Ct. 597, 7 L.Ed.2d 523 (1962); Leon A. Beeghly Fund v. Commissioner of Internal Revenue, 35 T.C. 490, 523 (1960), affirmed 310 F.2d 756 (6 Cir. 1962). So here, in order for Foundation to occupy exempt status, it must be devoted to charitable purposes exclusively, and if there is present in its operations a single noncharitable purpose substantial in nature, though it may have other truly and important charitable purposes, it is not entitled to be exempt. Foundation insists that its participation in the Algiers and Cheatham Lock projects was incidental to its tax exempt purposes, was not in furtherance of substantial nonqualified purposes, and that the benefits derived by its founders from such transactions were of an incidental nature. Additionally, Foundation emphasizes that it benefited from the business ventures to the extent of $178,387.-55. From the foregoing, Foundation reasons that it was in fact operated exclusively for charitable purposes within the concept of the teachings of the Supreme Court in Better Business Bureau v. United States, supra, 326 U.S. 279, 66 S.Ct. 112, 90 L.Ed. 67. We have accorded these and other arguments advanced by Foundation due and careful consideration and are not persuaded that the finding of the Tax Court on this issue is clearly erroneous. To the contrary, we are convinced that such finding is supported by substantial evidence and that in reaching its conclusion the Tax Court applied the proper legal standards. In the final analysis, it cannot be denied that the funds of Foundation were used in an appreciable amount and in a manner which, while beneficial to Foundation, also resulted in a substantial benefit to its founders. It was hardly a coincidence that Foundation was contacted by Mr. Hutchinson and asked to give financial support to Corporation’s construction ventures. Upon a reasonable assessment of the undisputed facts, a logical inference is that Foundation came to the rescue of Corporation at a time when the latter was unable to procure additional financing from its bank and other sources and when it was hard put for the requisite amount of cash necessary to satisfy the bonding company, and that Foundation made it possible for Corporation to bid on the projects. And, of course, it is of prime significance that the controlling interest in Corporation was owned by the individuals who constituted Partnership and who also were the creators of Foundation. The amount involved in the construction projects belies the assertion that these business ventures were merely incidental, or that the profit, as channeled through Corporation to Partnership and ultimately realized by Foundation’s creators, was of an incidental nature. In our view, the questioned activities and the use made of Foundation funds in connection with such activities closely parallel, in principle, the situation in Leon A. Beeghly Fund, supra, 35 T.C. 490, where, as here, the organization forfeited its tax exempt status because of such activities. We are likewise of the view that Samuel Friedland Foundation v. United States, supra, 144 F. Supp. 74, upon which Foundation places strong reliance, is readily distinguishable and not controlling herein. On the noncharitable operation issue we sustain the Tax Court. (b) — Unreasonable Accumulations Encompassed within the exemption issue, the Tax Court also found that Foundation had unreasonably accumulated income during its taxable years 1952 through 1958. We affirm this finding. ■ Under § 3814 of the Internal Revenue Code of 1939 and § 504 of the 1954 Code (the successor to § 3814), tax exempt status is denied to any organization described in § 501(c) (3) of the 1954 Code, “if the amounts accumulated out of income during the taxable year or any prior taxable year and not actually paid out by the end of the taxable year— “(1) are unreasonable in amount or duration in order to carry out the charitable, educational, or other purpose or function constituting the basis for such organization’s exemption * * * ” In the Friedland case, supra, 144 F. Supp. at 92, the court, in considering the yardstick to be applied in determining whether accumulations were unreasonable, stated, “What the true test appears to be is this, — Does the charitable organization have a concrete program for the accumulation of income which will be devoted to a charitable purpose and in the light of existing circumstances is the program a reasonable one?” While realizing that no formula is devisable for determining reasonableness in all cases, the court pointed to four significant factors to be considered, applied them to the facts, and found that Friedland Foundation had a definite and' reasonable program and a charitable object for accumulation. These factors were: (a) Purpose of accumulation and dollar goal — $500,000 for construction of medical research center at Brandéis University; (b) Funds available at starting point to be devoted to accumulation— $50,000; (c) Likelihood of further contributions — $50,000 per year; and (d) Extent of time required to reach dollar goal — 6, 7 or 8 years. In Erie Endowment v. United States, 3 Cir., 316 F.2d 151 (1963), the Third Circuit, confronted with the same problem, affirmed the district court’s holding that the accumulations were unreasonable. In so doing, the court took note of the ruling of the Tax Court in this case, see Note 16, 316 F.2d at 155, stated that the factual situations in the two cases were comparable, see Note 19, 316 F.2d at 155, 156, and also made the following general pronouncement: “ ‘Reasonableness,’ that hobgoblin of judicial minds, can only be divined on the basis of all relevant facts. The standard to be applied is whether the taxpayer can justify the total accumulation of income at the end of the taxable year, in terms of both time and amount, on the basis of a rational total program of charitable intent. The plan must be viewed in its entirety. An eight year plan of accumulation to provide a medical research center for a university costing $500,000 may be reasonable; so may a ten year period of accumulation to build up sufficient funds to pay retirement benefits to employees where that is the sole purpose of the foundation; so may accumulation for the purpose of obtaining sufficient funds to construct and maintain a civic building where the charitable organization was formed for that specific purpose.” 316 F.2d at 155. Mindful of these principles, we are impelled to conclude that the Tax Court here correctly decided that the accumulations were unreasonable within the meaning of the statute. Several salient facts stand out. Foundation did not have a concrete or definite charitable program requiring the accumulation of a large percentage of its income. Under its corporate charter, Foundation possessed broad charitable powers, but the fact remains that it failed to formulate and design a meaningful charitable program, one having a definite functional objective. We recognize that at some time during the years in question- — the Tax Court found that it was on or before August 20, 1953 — - Foundation determined that its dollar goal value would be $1,000,000, and that based upon a 5% return, its annual investment income would be $50,000. We have also considered that in 1951 or 1952 Foundation began making educational loans to students attending colleges. However, these loans and grants were not made as the result of any formulated or definite plan and such aid was not geared to the amount of Foundation’s income. In the absence of a concrete program no reasonable justification appears for the large accumulations for the years in question. Neither are we impressed with Foundation’s argument that the Tax Court improperly . considered accumulations prior to the enactment of the unreasonable accumulations statute in 1950. As demonstrated, this Act operated prospectively to deny tax exempt status. However, it is clear from the wording of the statute that accumulations of the taxable year and preceding years are to be considered in resolving the question whether the accumulations were unreasonable. See Erie Endowment v. United States, supra, 316 F.2d at 156, fn. 20. 2 — Retroactive Revocation Issue By letter dated May 1, 1947, the Commissioner informed Foundation that it was exempt from federal income tax under the provisions of § 101(6) of the Internal Revenue Code and that “accordingly) you will not be required to file income tax returns unless you change the character of your organization, the purposes for which you were organized, or your method of operation. Any such changes should be reported immediately to the collector of internal revenue for your district in order that their effect upon your exempt status may be determined.” As previously stated, the Commissioner revoked this tax exemption ruling by letter to Foundation dated August 24, 1954. Thereafter, the Commissioner applied the revocation ruling retroactively. The Commissioner is empowered to prescribe the extent to which any ruling made by him shall be applied retroactively. Section 7805(b) of the 1954 Code provides: “The Secretary or his delegate may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect.” This section is substantially the same as its predecessor — § 3791(b) of the 1939 Code. In Automobile Club of Mich. v. Commissioner, 353 U.S. 180, 184, 77 S. Ct. 707, 1 L.Ed.2d 746 (1957), the Supreme Court stated that it is clear from the language of the foregoing statute and its legislative history that Congress thereby confirmed the authority of the Commissioner to correct any ruling, regulation or treasury decision retroactively, but empowered him, in his discretion, “to limit retroactive application to the extent necessary to avoid inequitable re-É suits.” “The Commissioner’s action may not be disturbed unless, in the circumstances of this case, the Commissioner abused the discretion vested in him by § 3791(b) of the 1939 Code.” 353 U.S. at 184, 77 S.Ct. at 710, 1 L.Ed.2d 746. See and compare, Birmingham Business College, Inc. v. C. I. R., 5 Cir., 276 F.2d 476 (1960); Lesavoy Foundation v. Commissioner of Internal Revenue, 3 Cir., 238 F.2d 589 (1956); Cleveland Chiropractic College v. C. I. R., supra, 8 Cir., 312 F.2d 203. Thus, the question for decision here is whether the Commissioner acted arbitrarily in directing that the ruling be applied retroactively. Foundation’s efforts to demonstrate that its information reports were adequate and sufficient to apprise the Commissioner of its entry into the business activities which led to denial of its tax exempt status are far from convincing. By way of summary, it appears that on July 1, 1947, shortly after the tax exempt ruling, Foundation became involved with Corporation in the Algiers Lock project, but failed to disclose this fact to the Commissioner in its information return filed for its taxable year which ended March 31, 1948. To the contrary, Foundation answered “No” to the question: “9. Have you had any sources of income or engaged in any activities which have not previously been reported to the Bureau? .......... (Yes or No) If so, attach detailed statement.” Foundation also failed to disclose its assets and liabilities as required on “Schedule A — Balance Sheets” of the information return. Likewise, Foundation in its returns filed for taxable years ending March 31, 1949, March 31, 1950, and March 31, 1951, disclosed no information of its activities with Corporation, although as previously shown, it became further involved in the lock projects. The first hint of the transactions appeared in Foundation’s information return filed for the year ending March 31, 1950, when under heading “10 — Other Income,” Foundation reported “Algiers Lock Investment — $128,410.60.” This amount was more than 10%. of the total income reported for that year, but Foundation failed to attach an itemized schedule in accordance with the instructions. Again in its 1951 return, Foundation reported under “Other Income — Algiers Lock Investment — $24,198.71,” and again also failed to attach the required itemized schedule. Apparently, examination of the 1951 return and discovery of the $24,198.71 item of income caused the Commissioner to begin the investigation which resulted in his revocation of the 1947 ruling. The foregoing events and the ensuing correspondence between Commissioner and Foundation negate arbitrary action or an abuse of discretion by Commissioner. Foundation seeks to draw an analogy between this case and Lesavoy Foundation v. Commissioner, supra, 238 F.2d 589, where the Third Circuit reversed the Tax Court, 25 T.C. 924, which had sustained the Commissioner’s retroactive revocation of a certificate of exemption from taxation issued to a charitable organization. In our view, Lesavoy is readily distinguishable. There, unlike the present situation, the Foundation reported on its information return that it had engaged in “activities which have not previously been reported to the Bureau,” revealed that it had purchased a spinning mill company, and attached a balance sheet listing assets, inventory, liabilities, and gross receipts which reflected substantial sales of yarn and cloth. On this issue we affirm the Tax Court. 3 — Personal Holding Company Issue Sustaining the Commissioner in part, the Tax Court held that Foundation qualified as a personal holding company for its taxable years 1952 through 1954 and 1956 through 1958. We reverse the Tax Court on this issue. Under the Personal Holding Company statute, § 501(a) of the 1939 Code and § 542(a) of the 1954 Code, the term “personal holding company” means any corporation (with certain exceptions not pertinent here) if — (1) at least 80 percent of its gross income for the taxable year is personal holding company income as defined in another section (502 of 1939 Code, 543 of 1954 Code), and (2) at any time during the last half of the taxable year more than 50 percent in value of its outstanding stock is owned, directly or indirectly, by or for not more than five individuals. As in the Tax Court, Foundation here concedes that it meets test (1) — i. e., it had the requisite kind of income to be a personal holding company. The crucial question is whether the requirements of test (2) are present — i. e., whether Foundation’s “members” are of the general equivalence of stockholders in stock corporations so as to satisfy the stock ownership test. The provisions of Foundation’s corporate charter pertinent to this issue provide that: the corporation does not have authority to issue capital stock; the four incorporators shall be members upon payment of $1 each to the corporation; no part of the corporation’s net income shall inure to the benefit of any member; and the corporation has broad powers to amend any provision of the charter. The charter does not provide for distribution of assets upon dissolution. Although Foundation never issued capital stock or amended its charter, Commissioner contended in the Tax Court that because of the reserved power to amend the charter, Foundation’s members had the right to share in its property upon dissolution and therefore were equivalent to stockholders in stock corporations. The Tax Court held that for the taxable year 1948 Foundation’s memberships did not correspond to stock holdings for personal holding company-tax purposes, but on a theory of its own, sustained the Commissioner on this issue as to other taxable years. In 1951 the Delaware legislature amended its Revised Code of 1935 to permit consolidation of or merger between stock and non-stock corporations. This amendment added a new section to the Delaware Revised Code of 1935, now appearing as § 257, Title 8, of Delaware Code Annotated, and reading in pertinent part as follows: “ § 257. (a) Any one or more non-stock corporations, whether organized for profit or not organized for profit, organized under the provisions of this chapter, or existing under the laws of this State, may consolidate or merge with one or more stock corporations, whether organized for profit or not organized for profit, organized under the provisions of this chapter, or existing under the laws of this State, into a single corporation which may be any one of the constituent corporations or a new corporation to be formed by means of such consolidation or merger as shall be specified in the agreement provided for in subsection (b) of this section. The new corporation or the surviving constituent corporation may be organized for profit or not organized for profit and may be a stock corporation or a membership corporation. “* * In such consolidation or merger the interests of members of a constituent non-stock corporation may be treated in various ways so as to convert such interests into interests of value, other than shares of stock, in the proposed new or resulting stock corporation or into shares of stock in the proposed new or resulting stock corporation, voting or non-voting, or into creditor interests or any other interests of value equivalent to their membership interests in their non-stock corporation.” Without supporting authority, the Tax Court concluded that “despite the fact that the predecessors of Del.Code Ann. tit. 8, secs. 102(a) (4), 242(a), and 281, set forth supra, were not amended by this 1951 Act, we conclude that the Delaware Legislature intended to and did change the law to give to members in nonstock corporations the right to share in the current or accumulated profits of those corporations,” and that for the taxable years 1952 through 1958 Foundation’s memberships constitute “stock” within the meaning of the Personal Holding Company statute. Although we sustain the determination that Foundation was not an exempt organization for federal income tax purposes, the present issue posits the question whether under state law the property of a charitable organization can be distributed or paid to its members by way of dividends or ultimately on dissolution. The Commissioner recognizes that we look to the state law in resolving this question, and in his brief, states: “Taxpayer is a nonstock, nonprofit corporation organized under the General Corporation Law of Delaware * * * and its certificate of incorporation makes no provision for the disposition of assets in the event of dissolution. However, on the basis of the relevant state law, the Tax Court determined that, prior to 1951, members of a Delaware non-stock nonprofit corporation could not share in the assets of the corporation on liquidation * * *. Accordingly, it found that prior to that time taxpayer’s memberships were not equivalent to stock for personal holding company purposes because they lacked the necessary beneficial interest in the assets of the corporation.” Specifically, then, we must decide whether the 1951 amendment was intended to cover charitable non-stock, nonprofit corporations so as to permit Foundation to merge with a profit, stock corporation and to give Foundation’s members — as held by the Tax Court — the right to share in the current or accumulated profits of Foundation, even though there was no actual merger. Foundation states that the Tax Court’s interpretation of the amendment — now Title 8 Del.Code Ann. § 257 — endangers the status of existing charitable corporations under Delaware law, and, in effect, prohibits the formation of new ones. Commissioner, in support of the Tax Court’s self-spun theory, argues that for state law purposes, a charitable corporation is not endangered in Delaware, for it will remain charitable in nature until merged with a stock company. Opposed to Foundation’s contention that the doctrine of cy pres would prevent its funds from being diverted to its members, Commissioner further asserts that the doctrine, although applied in Delaware as to charitable trusts, has not yet been applied as to charitable corporations “and would appear to be foreclosed by the 1951 amendment. * * * ” Commissioner points to the general liberality of Delaware corporation law, asserts that “the legislature apparently saw fit to allow” such mergers, and on oral argument, revealed that perhaps the Delaware statute “would permit a church to merge with a large profit corporation.” In our view, the Tax Court’s interpretation of § 257 is diametrically opposed to prevailing principles of law dealing with charitable corporations. Generally, on the dissolution of a charitable corporation, the doctrine of cy pres is applicable, and a gift to the corporation does not revert to the donor — and, to be sure, cannot be distributed to the members of the charitable corporation. See IV Scott, Trusts § 397.3, at 2797-2798 (2d ed. 1956). Ordinarily, the principles which are applicable to charitable trusts are applicable to charitable corporations —certainly the doctrine of cy pres pertains to both, and “it is probably more misleading to say that a charitable corporation is not a trustee than to say that it is. . . .” IV Scott, Trusts § 348.-1, at 2559, 2553-2554 (2d ed. 1956); National Foundation v. First National Bank of Catawba County, 4 Cir., 288 F. 2d 831, 836 (1961); Miller v. Mercantile-Safe Deposit & Trust Company, 224 Md. 380, 168 A.2d 184, 188 (1961); Trustees of Rutger’s College in N. J. v. Richman, 41 N.J.Super. 259, 125 A.2d 10, 26 (1956). It has been held that the legislature has no power to destroy or to vary the terms of a valid charitable trust. IV Scott, Trusts § 348, at 2552 (2d ed. 1956). Additionally, the power of amending a corporate charter cannot be exercised to entirely change the nature of a corporation, or to change substantially its objects and purposes. Fletcher, Cyclopedia Corporations, Vol. 7, Ch. 43, § 3718, at 886 (Perm. ed.). With these general rules in mind, we turn to Delaware law to determine whether its legislature and its courts have adhered to the prevailing principles. We, like the Tax Court and the parties to this action, recognize that the Delaware statutory law here involved has not been construed by the courts of that state insofar as it applies to non-stock, nonprofit corporations. Nevertheless, upon careful scrutiny of Delaware statutory and decisional law, we are firmly convinced that the Tax Court’s interpretation of that law is erroneous. The Delaware courts have recognized that “[generally speaking, the law favors charitable trusts, and they will not be declared void if they can by any possibility, consistent with law, be considered as good.” Union Methodist Episcopal Church v. Equitable Trust Company, 32 Del.Ch. 197, 83 A.2d 111, 114 (1951). Construing a testamentary bequest in trust for a charitable purpose, the Court of Chancery of Delaware, in Delaware Trust Company v. Graham, 30 Del.Ch. 330, 61 A.2d 110, 113 (1948), stated that there “seems to be no good reason why judicial cy pres should not be applied in appropriate cases by this court.” Other Delaware decisions dealing with charitable trusts have also recognized the validity of, the cy pres doctrine, although the courts have not always considered its application appropriate under the facts involved. See, for example, Union Methodist Episcopal Church v. Equitable Sec. Tr. Co., Del.Ch., 177 A.2d 217 (1962); First National Bank & Trust Company v. First National Bank & Trust Company, 35 Del.Ch. 449, 121 A.2d 296 (1956); Union Methodist Episcopal Church v. Equitable Trust Company, supra, 83 A.2d 111. Furthermore, under the doctrine of cy pres, the Delaware legislature cannot divert the corpus of a trust to uses other than those specified, nor may it terminate a charitable trust or change the methods of its administration. “Legislation respecting a charitable trust is valid if in aid of its purpose and not in destruction or impairment of the interests arising under it." Trustees of New Castle Common v. Gordy, 33 Del.Ch. 334, 93 A.2d 509, 515, 40 A.L.R.2d 544 (1952). It is also interesting to note that in Denckla v. Independence Foundation, Del.Ch., 181 A.2d 78, 83 (1962), the Delaware Court of Chancery, while finding it unnecessary to determine the validity of plaintiff’s assertion “that an incorporated charitable foundation is governed by the same rules of law as are charitable trusts,” did state: “Determination of the issues presented here is dependent upon the extent of the powers conferred upon Independence by its certificate of incorporation. If the power to make the contested grant is either expressly or by necessary implication given by its charter then it matters not whether trust law or corporate law is applicable. Conversely, if the power is not so given the grant is ultra vires and ineffective, at least in the absence of unanimous membership approval, and, perhaps, even then.” 181 A.2d at 83. Moreover, we find that Delaware, like other American courts, also favors charitable corporations, and in cases involving such institutions, is “not confined to the same orthodox concepts which once were applicable to every situation * Danby v. Osteopathic Hospital Association of Delaware, 34 Del.Ch. 427, 104 A.2d 903, 907 (1954). Other cases, such as Society for Propagation of Faith of Diocese of Wilmington v. Joswick, Del.Ch., 180 A.2d 617 (1962) and Equitable Security Trust Co. v. Home for Aged Women, 35 Del.Ch. 553, 123 A.2d 117 (1956), further emphasize that the Tax Court’s interpretation of § 257 would frustrate Delaware’s policy toward charitable institutions. Since statutes are presumed to have some effect, § 257 must be interpreted as allowing many types of non-profit, non-stock corporations to merge with profit corporations. But a non-profit corporation is not necessarily charitable in nature, Read v. Tidewater Coal Exchange, 13 Del.Ch. 195, 116 A. 898 (1922), and allowing a merger between a profit corporation and a certain type of non-profit corporation is a far cry from allowing merger between a charitable corporation and a profit corporation, and allowing assets pledged to charitable purposes to be diverted to private gain. In our view, if such a drastic change was intended, the Delaware legislature would have spoken more clearly; it would have specifically referred to charitable corporations by name — as it does in various other sections of the Code whereby certain charitable associations are granted various rights and exemptions. See, Del. Code Ann., tit. 8, §§ 313, 361(a) (4), 501; tit. 30, § 1902. To sustain the Tax Court on the personal holding company issue, we would, among other determinations, be obliged to hold that: (1) under § 257, Foundation could merge with a profit corporation, and that therefore Foundation’s memberships were converted to interests of value; (2) such interests were the equivalent of stock; and (3) the Delaware legislature, by implication in § 257, intended to prevent the courts from applying the doctrine of cy pres to charitable corporations. Such determinations, in our view, would not coincide with how the Delaware courts would interpret § 257 if they were called upon to do so. We reverse the Tax Court on this issue. 4 — Additions to Tax Issue The Tax Court assessed penalties under § 291(a) of the 1939 Code for failure of Foundation to file income tax returns for its taxable years 1948 through 1954 and personal holding company tax returns for its taxable years 1952 through 1954. In summary, § 291(a) provides that in case of any failure to file a tax return within the time prescribed by law, unless it is shown that the failure is due to reasonable cause and not due to willful neglect, there shall be added to the tax a certain percentum thereof not to exceed 25'%' in the aggregate. The Tax Court considered all of the facts and circumstances bearing upon this issue, carefully considered Foundation’s contentions, applied what it regarded to be the applicable rule, and found that Foundation did not have reasonable cause for failure to file the returns for the years stated. The question whether the failure to file returns was due to reasonable cause and not due to willful neglect is “one of fact in the first instance for the * * * [Tax Court’s] determination.” Commissioner v. Lane-Wells Company, 321 U.S. 219, 225, 64 S.Ct. 511, 514, 88 L.Ed. 684 (1944). In Coates v. Commissioner of Internal Revenue, 8 Cir., 234 F.2d 459, 462 (1956), Judge Sanborn, speaking for the court, stated: “We agree with the statement of the Tax Court that whether or not reasonable cause exists for failure to file the required declaration is a question of fact to be decided upon the peculiar circumstances of each case.” To the same effect are Sami v. United States, 5 Cir., 277 F.2d 153 (1960); Southeastern Finance Company v. Commissioner of Int. Rev., 5 Cir., 153 F.2d 205 (1946). Cf. also Heman v. C. I. R., 8 Cir., 283 F.2d 227 (1960). Foundation seeks to demonstrate that reasonable cause existed for its failure to file the income tax returns. Its principal argument is grounded on the 1947 ruling of the Commissioner that it was exempt and not required to file’ such returns. Of course, the exemption ruling ostensibly justified the failure to file such returns. However, since we have determined that the Commissioner was justified in retroactively revoking the exemption ruling for failure to furnish material information, such reason ceases to exist. See Birmingham Business College, Inc. v. C. I. R., supra, 276 F.2d at 482. We have carefully considered all arguments advanced by Foundation and are satisfied that the Tax Court’s determination that Foundation is subject to additions for failure to file the income tax returns for the years 1948 through 1954 should be affirmed. Inasmuch as we have determined that Foundation was not a holding company and was therefore not required to file personal holding company tax returns, there is no basis for those additions, and the Tax Court’s decision in that regard is reversed. 5 — Worthless Securities Issue Foundation claimed capital losses in its taxable year 1949 totaling $9,-849.40, alleging that the stock it held in Denver & Rio Grande Railway and in St. Louis & San Francisco Railway became worthless in that year. The Tax Court sustained the Commissioner’s disallowance of the claimed capital losses on the ground that Foundation “failed to sustain its burden of proving the stock became worthless during the period before the Court.” In contending that it incurred such losses in 1949, or alternatively in 1948 or 1950, Foundation relies entirely upon the opinion-testimony of its president, Stevens. The Tax Court obviously was not impressed with Stevens’ testimony, determined that the testimony was of little value in fixing either the fact or time of worthlessness, and — -eontrarily —pointed to other evidence suggesting the stock probably was not worthless in 1949. On this record, we cannot hold that the Tax Court's determination — a finding of fact — was clearly erroneous. See Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Boehm v. Commissioner, 326 U.S. 287, 292-293, 66 S.Ct. 120, 90 L.Ed. 78 (1945); Midland Ford Tractor Company v. C. I. R., 8 Cir., 277 F.2d 111, 115 (1960), cert. denied, 364 U.S. 881, 81 S. Ct. 169, 5 L.Ed.2d 102 (1960); Cohen v. Commissioner, 2 Cir., 148 F.2d 336, 337 (1945). 6 — Long-Term Capital Gain Issue After completion of the Cheatham Lock project, Corporation sold the steel sheet piling and division equipment used on the project. Foundation contends that, if it is not tax exempt, its share of the profit realized from the sale of the piling and the equipment is a long-term capital gain under § 1231 of the Internal Revenue Code of 1954. The Tax Court affirmed the Commissioner’s determination that the profit constituted ordinary income and not capital gain. To qualify as a long-term capital gain under § 1231, the profit must have been realized from the sale of “property used in the trade or business.” Such property, according to § 1231(b), must (1) be used in the trade or business; (2) be subject to the allowance for depreciation ; and (3) be held for more than six months. The Tax Court sustained Commissioner’s determination as to the steel pilings on the ground that Foundation failed to satisfy its burden of proving that it or Corporation had held the pilings for more than six months. Based largely upon the testimony of Stevens, the Tax Court found that the pilings had been transferred to the Corps of Engineers during the construction project, causing an interruption in the holding period so as to disqualify the property from capital gain treatment under the “6-month” requirement of § 1231(b). Foundation contends that the Tax Court’s finding is erroneous in that Stevens’ testimony was somewhat inconsistent and that “a fair interpretation of Mr. Stevens’ testimony is there was no real or actual interruption of the holding period.” While there can be no doubt that Stevens’ testimony was not entirely consistent, it furnished a substantial basis for the Tax Court’s finding. On review, primary emphasis must be given to the evidence which supports the inferences drawn by the Tax Court, Commissioner v. Scottish American Company, 323 U.S. 119, 123-124, 65 S.Ct. 169, 89 L.Ed. 113 (1944); Card v. Commissioner, 8 Cir., 216 F.2d 93, 96-97 (1954), and a choice between two permissible views of the weight of the evidence is not clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S. Ct. 177, 94 L.Ed. 150 (1949). Thus, in view of the lack of evidence to the contrary, we cannot overturn the finding that Foundation failed to prove that it held the pilings for more than six months, and thus that it could not treat its share of the profit from their sale as a capital gain. In sustaining the Commissioner’s denial of capital gain treatment for the equipment, the Tax Court merely stated that Foundation had not proved the equipment was depreciable as required by § 1231(b). No one disputed Stevens’ testimony that the equipment was used on the Cheatham project and that it, but “not the supplies,” had depreciated. The Commissioner never suggested to the Tax Court that Foundation had not shown the depreciable nature of this equipment, and the point was not at issue below. To be sure, the Tax Court is the judge of the credibility of witnesses who appear before it, and of the weight of evidence produced. But, under the circumstances of this case, we believe that Foundation “might fairly have assumed that the respondent was not questioning or controverting” its assertions or its evidence as to the depreciable nature of the equipment. Royal Highlanders v. Commissioner of Internal Revenue, 8 Cir., 138 F.2d 240, 245 (1943). While the Tax Court may not have been required to find for Foundation upon the evidence it produced, the court should have afforded Foundation an opportunity to verify its position since the “depreciation issue” had not really been raised. On the equipment portion of the issue we reverse and remand to allow either party an opportunity to present evidence as to whether the equipment was depreciable, and thus to determine whether Foundation’s share of the profit from its sale was a long-term capital gain under § 1231. Conclusion In accordance with our determinations as set forth in the opinion, we affirm in part, reverse in part, and reverse and remand in part. . In Beeghly, the Tax Court found that the Fund was not operated “exclusively” for charitable purposes and thus that it was not tax exempt. But, on another ground, the Tax Court held that the Fund had no deficiency in income tax. On appeal by the Commissioner, the Sixth Circuit affirmed the Tax Court without reaching the issue of “charitable operation.” . § 3814 of the 1939 Code was enacted in 1950, § 333 of Act September 23, 1950, provided in part that this section should apply with respect to taxable years beginning after December 31, 1950. . The Tax Court determined that — “if we adopt the approach of Friodland [supra, 144 F.Supp. 74]' in determining the amount of ‘excess’ accumulations”— Foundation’s “excess” accumulations, as of its taxable year 1958, totaled — “per petitioner’s boolcs" — $443,372.34. Using the Tax Court’s figures in this regard, Commissioner points out that Foundation accumulated approximately 78% of its income during the years before the court, while spending only 3% for charitable purposes. . The revocation of taxpayer’s exempt status in Cleveland Chiropractic College was applied retroactively. However, this was not an issue on appeal and is not mentioned in our opinion. . During the years in question, Foundation had no more than ten members. The Tax Court reduced the number to five for personal holding company purposes under the “ownership attribution” rules of the Code (§ 503 of the 1939 Code and § 544(a) (2) of the 1954 Code). Although Foundation asserts that these rules could only become applicable after an actual merger by it with a profit eorporation (if such merger is possible), Foundation does not dispute the finding that the family relationship between its members is sufiieient to reduce the owners to five or less under the rules, if such determination is to be made regardless of an actual merger. Since we dispose of the personal holding company issue on another ground, further consideration of this phase of the issue is unnecessary. . These provisions of Del.Code Ann, tit. 8 —dealing in part, respectively, -with formation of non-profit, non-stock corporations, with charter amendments, and with distribution of balance upon corporate liquidation — were interpreted by the Tax Court, in light of Delaware decisional law, as forbidding — prior to 1951 — distribution of accumulated profits to members of a non-profit, non-stock corporation on liquidation. 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_const1

101

What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. IOTA XI CHAPTER OF SIGMA CHI FRATERNITY; John Howlin; John Singsank, Plaintiffs-Appellees, v. GEORGE MASON UNIVERSITY; Kenneth E. Bumgarner, Defendants-Appellants. No. 91-2684. United States Court of Appeals, Fourth Circuit. Argued May 4, 1992. Decided May 10, 1993. Paul Joseph Forch, Sr. Asst. Atty. Gen., Richmond, VA, argued (Mary Sue Terry, Atty. Gen., H. Lane Kneedler, Chief Deputy Atty. Gen., R. Claire Guthrie, Deputy Atty. Gen., Martha M. Parrish, Asst. Atty. Gen., on brief), for defendants-appellants. Victor Michael Glasberg, Victor M. Glas-berg & Associates, Alexandria, VA argued, Jeanne Goldberg, Victor M. Glasberg & Associates, Alexandria, VA, Michael P. McDonald, Center for Individual Rights, Washington, DC, Stephen B. Pershing, ACLU of Virginia, Richmond, VA, for plaintiffs-appel-lees. Before WIDENER and MURNAGHAN, Circuit Judges, and SPROUSE, Senior Circuit Judge. OPINION SPROUSE, Senior Circuit Judge: George Mason University appeals from a summary judgment granted by the district court to the IOTA XI Chapter of Sigma Chi Fraternity in its action for declaratory judgment and an injunction seeking to nullify sanctions imposed on it by the University because it conducted an “ugly woman contest” with racist and sexist overtones. We affirm. I Sigma Chi has for two years held an annual “Derby Days” event, planned and conducted both as entertainment and as a source of funds for donations to charity. The “ugly woman contest,” held on April 4, 1991, was one of the “Derby Days” events. The Fraternity staged the contest in the cafeteria of the student union. As part of the contest, eighteen Fraternity members were assigned to one of six sorority teams cooperating in the events. The involved Fraternity members appeared in the contest dressed as caricatures of different types of women, including one member dressed as an offensive caricature of a black woman. He was painted black and wore stringy, black hair decorated with curlers, and his outfit was stuffed with pillows to exaggerate a woman’s breasts and buttocks. He spoke in slang to parody African-Americans. There is no direct evidence in the record concerning the subjective intent of the Fraternity members who conducted the contest. The Fraternity, which later apologized to the University officials for the presentation, conceded during the litigation that the contest was sophomoric and offensive. Following the contest, a number of students protested to the University that the skit had been objectionably sexist and racist. Two hundred forty-seven students, many of them members of the foreign or minority student body, executed a petition, which stated: “[W]e are condemning the racist and sexist implications of this event in which male members dressed as women. One man in particular wore a black face, portraying a negative stereotype of black women.” On April 10, 1991, the Dean for Student Services, Kenneth Bumgarner, discussed the situation with representatives of the objecting students. That same day, Dean Bumgar-ner met with student representatives of Sigma Chi, including the planners of and participants in the “ugly woman contest.” He then held a meeting with members of the student government and other student leaders. In this meeting, it was agreed that Sigma Chi’s behavior had created a hostile learning environment for women and blacks, incompatible with the University’s mission. The Dean met again with Fraternity representatives on April 18, and the following day advised its officers of the sanctions imposed. They included suspension from all activities for the rest of the 1991 spring semester and a two-year prohibition on all social activities except pre-approved pledging events and pre-approved philanthropic events with an educational purpose directly related to gender discrimination and cultural diversity. The University’s sanctions also required Sigma Chi to plan and implement an educational program addressing cultural differences, diversity, and the concerns of women. A few weeks later, the University made minor modifications to the sanctions, allowing Sigma Chi to engage in selected social activities with the University’s advance approval. On June 5, 1991, Sigma Chi brought this action under 42 U.S.C. § 1983 against the University and Dean Bumgarner. It requested declaratory judgment and injunctive relief to nullify the sanctions as violative of the First and Fourteenth Amendments. Sigma Chi moved for summary judgment on its First Amendment claims on June 28, 1991, filing with its motions numerous affidavits explaining the nature of the “ugly woman contest.” Also submitted were large glossy photographs of the participants as they appeared in the skits, including photographs of the Fraternity member depicting the offensive caricature of the black woman. In addition to the affidavit of Dean Bum-garner explaining his meetings with student leaders, the University submitted the affidavits of other officials, including that of University President George W. Johnson and Vice-President Earl G. Ingram. President Johnson, by his affidavit, presented the “mission statement” of the University: (3) George Mason University is committed to promoting a culturally and racially diverse student body.... Education here is not limited to the classroom. (4) We are committed to teaching the values of equal opportunity and equal treatment, respect for diversity, and individual dignity. (5) Our mission also includes achieving the goals set forth in our affirmative action plan, a plan incorporating affirmative steps designed to attract and retain minorities to this campus. (7) George Mason University is a state institution of higher education and a recipient of federal funds. Vice President Earl G. Ingram’s affidavit represented: (6) The University’s affirmative action plan is a part of an overall state plan designed, in part, to desegregate the predominately “white” and “black” public institutions of higher education in Virginia.... The behavior of the members of Sigma Chi that led to this lawsuit was completely antithetical to the University’s mission, as expressed through its affirmative action statement and other pertinent University policies, to create a non-threatening, culturally diverse learning environment for students of all races and backgrounds, and of both sexes. (7) While the University has progressed in attracting and retaining minority students, it cannot expect to maintain the position it has achieved, and make further progress on affirmative action and minority issues that it wishes to make, if behavior like that of Sigma Chi is perpetuated on this campus. The district court granted summary judgment to Sigma Chi on its First Amendment claim, 773 F.Supp. 792 (E.D.Va.1991). II The University urges that the district court’s grant of summary judgment was premature. It stresses that there remain factual issues which the district court should have weighed in its conclusion. According to the University, the Fraternity’s intent in staging the contest is crucial to the issue of whether its conduct was expressive. The University also stresses that if given time it could demonstrate more completely the harm the contest caused to its educational mission. It is, of course, beyond cavil that summary judgment should not be granted while a viable issue of material fact remains. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Summary judgment principles require the court to find that the evidence is such that a jury could not reasonably find for the party opposing summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Only disputes over facts that might affect the outcome of a suit under the applicable law preclude entry of summary judgment. In our view, for the reasons that follow, the district court was correct in concluding that there was no outstanding issue of material fact. Ill We initially face the task of deciding whether Sigma Chi’s “ugly woman contest” is sufficiently expressive to entitle it to First Amendment protection. From the mature advantage of looking back, it is obvious that the performance, apart from its charitable fund-raising features, was an exercise of teenage campus excess. With a longer and sobering perspective brought on by both peer and official disapproval, even the governing members of the Fraternity recognized as much. The answer to the question of whether the First Amendment protects the Fraternity’s crude attempt at entertainment, however, is all the more difficult because of its obvious sophomoric nature. A First Amendment principles governing live entertainment are relatively clear: short of obscenity, it is generally protected. See, e.g., Barnes v. Glen Theatre, Inc., - U.S. -, -, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991) (nude dancing); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58, 95 S.Ct. 1239, 1245-47, 43 L.Ed.2d 448 (1975) (musical “Hair”); Berger v. Battaglia, 779 F.2d 992, 999 (4th Cir.1985) (blackface performance), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 720 (1986). As the Supreme Court announced in Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981), “[ejntertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment ... fall within the First Amendment guarantee.” Id. at 65, 101 S.Ct. at 2180. Expression devoid of “ideas” but with entertainment value may also be protected because “[t]he line between the informing and the entertaining is too elusive.” Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948). Thus, we must determine if the skit performed by Sigma Chi comes within the constitutionally protected rubric of entertainment. Unquestionably, some forms of entertainment are so inherently expressive as to fall within the First Amendment’s ambit regardless of their quality. For example, in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), the Supreme Court flatly ruled that “[mjusic, as a form of expression and communication, is protected under the First Amendment.” Id. at 790, 109 S.Ct. at 2753. Justice Kennedy explained: Music is one of the oldest forms of human expression. From Plato’s discourse in the Republic to the totalitarian state in our own times, rulers have known its capacity to appeal to the intellect and to the emotions, and have censored musical compositions to serve the needs of the state. The Constitution prohibits any like attempts in our own legal order. Id. (citations omitted). Motion pictures, too, are included within the free speech guarantee of the First Amendment. The Court emphasized in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952), that “[t]he importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.” Id. at 501, 72 S.Ct. at 780; see also Young v. American Mini Theatres, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976) (motion picture theaters involve communication protected by the First Amendment, but the state can regulate their secondary effects). Even crude street skits come within the First Amendment’s reach. In overturning the conviction of an amateur actor for wearing a military uniform in violation of a federal statute, the Supreme Court discussed the statute’s “theatrical production” exception. Schacht v. United States, 398 U.S. 58, 61-62, 90 S.Ct. 1555, 1558-59, 26 L.Ed.2d 44 (1970). Responding to the Government’s argument that the amateur skit was not a “theatrical production,” Justice Black, writing for the majority, stated: It may be that the performances were crude and amateurish and perhaps unappealing, but the same thing can be said about many theatrical performances. We cannot believe that when Congress wrote out a special exception for theatrical productions it intended to protect only a narrow and limited category of professionally produced plays. Id. Although this part of the opinion related to interpretation of the involved statute, Justice Black proceeded to declare that an actor participating in even a crude performance enjoys the constitutional right to freedom of speech. Id. at 63, 90 S.Ct. at 1559. Bearing on this dichotomy between low and high-grade entertainment are the Supreme Court’s holdings relating to nude dancing. See Barnes v. Glen Theatre, Inc., - U.S. at -, -, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66, 101 S.Ct. 2176, 2180-81, 68 L.Ed.2d 671 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33, 95 S.Ct. 2561, 2568-69, 45 L.Ed.2d 648 (1975); California v. LaRue, 409 U.S. 109, 116-18, 93 S.Ct. 390, 395-97, 34 L.Ed.2d 342 (1972). Most recently, in Barnes, the Supreme Court conceded that nude dancing is expressive conduct entitled to First Amendment protection. Barnes, - U.S. at -, 111 S.Ct. at 2460. In Barnes, the Court reviewed a Seventh Circuit opinion authored by Judge Flaum, Miller v. Civil City of South Bend, 904 F.2d 1081 (7th Cir.1990) (en banc), rev’d sub nom. Barnes v. Glen Theatre, Inc., - U.S. -, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), which thoroughly analyzed the questions of whether and how nude dancing is expression entitled to First Amendment protection. The Miller opinion noted that dance is inherently expressive entertainment, as it conveys emotions and ideas. Judge Flaum refused to distinguish “high” art from “low” entertainment on the asserted basis that low entertainment “fail[s] to communicate a defined intellectual thought.” Id. at 1086. Applying the test enunciated in Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989), he concluded that nude dancing communicated a message of eroticism and sensuality, understood by its viewers as such. Miller, 904 F.2d at 1087. Thus, notwithstanding its artistic quality, nude dancing was sufficiently expressive to entitle it to First Amendment protection. Justice White’s dissent in Barnes echoed Judge Flaum’s opinion: “[WJhile the entertainment afforded by a nude ballet at Lincoln Center to those who can pay the price may differ vastly in content (as viewed by judges) or in quality (as viewed by critics), it may not differ in substance from the dance viewed by the person who ... wants some ‘entertainment’ with his beer or shot of rye.” Barnes, - U.S. at -, 111 S.Ct. at 2475, 115 L.Ed.2d at 529 (White, J-., dissenting) (quoting Salem Inn, Inc. v. Frank, 501 F.2d 18, 21 n. 3 (2d Cir.1974), modified sub nom. Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975)). In sum, although the Barnes plurality did not explore these views, it appears that the low quality of entertainment does not necessarily weigh in the First Amendment inquiry. It would seem, therefore, that the Fraternity’s skit, even as low-grade entertainment, was inherently expressive and thus entitled to First Amendment protection. See Barnes, - U.S. at -, 111 S.Ct. at 2460; Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66, 101 S.Ct. 2176, 2180-81, 68 L.Ed.2d 671 (1981); Schacht v. United States, 398 U.S. 58, 61-62, 90 S.Ct. 1555, 1558, 26 L.Ed.2d 44 (1970). B The University nevertheless contends that discovery will demonstrate that the contest does not merit characterization as a skit but only as mindless fraternity fun, devoid of any artistic expression. It argues further that entitlement to First Amendment protection exists only if the production was intended to convey a message likely to be understood by a particular audience. See Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989). From the summary judgment record, the University insists, it is impossible to discern the communicative intent necessary to imbue the Fraternity’s conduct with a free speech component. As indicated, we feel that the First Amendment protects the Fraternity’s skit because it is inherently expressive entertainment. Even if this were not true, however, the skit, in our view, qualifies as expressive conduct under the test articulated in Texas v. Johnson. It is true that the Johnson test for determining the expressiveness of conduct requires “ ‘[a]n intent to convey a particularized message’ ” and a great likelihood “ ‘that the message would be understood by those who viewed it.’ ” Id. (quoting Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974)). As Johnson and Spence point out, however, the intent to convey a message can be inferred from the conduct and the circumstances surrounding it. Thus viewed, the University’s argument is self-defeating. The affidavit from the University’s Vice-President, Earl Ingram, stated that the message conveyed by the Fraternity’s conduct — that racial and sexual themes should be treated lightly — was completely antithetical to the University’s mission of promoting diversity and providing an educational environment free from racism and sexism. Dean Bumgarner, in his affidavit, stated that the University does not and cannot condone this type of on-campus behavior which perpetuated derogatory racial and sexual stereotypes, tends to isolate minority students, and creates a hostile and distracting learning environment. Such behavior is incompatible with, and destructive to, the University’s mission of promoting diversity within its student body [and] sends a message to the student body and the community that we ... are not serious about hurtful and offensive behavior on campus. Importantly, the affidavits establish that the punishment was meted out to the Fraternity because its boorish message had interfered with the described University mission. It is manifest from these circumstances that the University officials thought the Fraternity intended to convey a message. The Fraternity members’ apology and post-conduct eontriteness suggest that they held the same view. To be sure, no evidence suggests that the Fraternity advocated segregation or inferior social status for women. What is evident is that the Fraternity’s purposefully nonsensical treatment of sexual and racial themes was intended to impart a message that the University’s concerns, in the Fraternity’s view, should be treated humorously. From the Fraternity’s conduct and the circumstances surrounding it, we have no difficulty in concluding that it intended to convey a message. As to the second prong of the Johnson test, there was a great likelihood that at least some of the audience viewing the skit would understand the Fraternity’s message of satire and humor. Some students paid to attend the performance and were entertained. What the Fraternity did not anticipate was the reaction to their crude humor by other students on campus and University officials who opposed the racist and sexist implications of the Fraternity’s skit. Even considering, therefore, the sparsity of the evidentiary record, we are persuaded that the Fraternity’s “ugly woman contest” satisfies the Johnson test for expressive conduct. IV If this were not a sufficient response to the University’s argument, the principles relating to content and viewpoint discrimination recently emphasized in R.A.V. v. City of St. Paul, - U.S. -, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), provide a definitive answer. Although the Court in St. Paul reviewed the constitutional effect of a city “hate speech” ordinance, and we review the constitutionality of sanctions imposed for violating University policy, St. Paul’s rationale applies here with equal force. Noting that St. Paul’s city ordinance prohibited displays of symbols that “arouse[] anger, alarm or resentment in others on the basis of race, color, creed, religion or gender,” but did not prohibit displays of symbols which would advance ideas of racial or religious equality, Justice Scalia stated: “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.” Id. at -, -, 112 S.Ct. at 2541, 2547. As evidenced by their affidavits, University officials sanctioned Sigma Chi for the message conveyed by the “ugly woman contest” because it ran counter to the views the University sought to communicate to its students and the community. The mischief was the University’s punishment of those who scoffed at its goals of racial integration and gender neutrality, while permitting, even encouraging, conduct that would further the viewpoint expressed in the University’s goals and probably embraced by a majority of society as well. “The First Amendment generally prevents government from proscribing ... expressive conduct because of disapproval of the ideas expressed.” Id. at -, 112 S.Ct. at 2542 (citing Johnson, 491 U.S. at 406, 109 S.Ct. at 2540). The University, however, urges us to weigh Sigma Chi’s conduct against the substantial interests inherent in educational endeavors. See Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The University certainly has a substantial interest in maintaining an educational environment free of discrimination and racism, and in providing gender-neutral education. Yet it seems equally apparent that it has available numerous alternatives to imposing punishment on students based on the viewpoints they express. We agree wholeheartedly that it is the University officials’ responsibility, even their obligation, to achieve the goals they have set. On the other hand, a public university has many constitutionally permissible means to protect female and minority students. We must emphasize, as have other courts, that “the manner of [its action] cannot consist of selective limitations upon speech.” St. Paul, - U.S. at -, 112 S.Ct. at 2548; see also Carey v. Brown, 447 U.S. 455, 471, 100 S.Ct. 2286, 2295, 65 L.Ed.2d 263 (invalidating a ban on residential picketing that exempted labor picketing); Schacht v. United States, 398 U.S. 58, 62-63, 90 S.Ct. 1555, 1559, 26 L.Ed.2d 44 (1970) (invalidating a law that allowed wearing military uniforms only in dramatic portrayals that did not “tend to discredit the military”). The First Amendment forbids the government from “restricting] expression because of its message [or] its ideas.” Police Dept. v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212 (1972). The University should have accomplished its goals in some fashion other than silencing speech on the basis of its viewpoint. The decision of the district court is affirmed. AFFIRMED. . Although Sigma Chi’s national fraternity is not involved in the litigation, the IOTA Chapter XI is hereafter referred to as "Sigma Chi” or “the Fraternity.” . Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 42 U.S.C. § 1983. . 10 U.S.C. § 772© provides: While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force. . At least eight justices agreed that First Amendment protection extends to nude dancing, but they differed in their approaches to defining that protection. Justice Rehnquist, writing for a plurality, relied on the four-part test announced in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). He concluded that the Indiana statute prohibiting public nudity was constitutional because it was unrelated to the suppression of speech, infringed only incidentally on protected expression, and furthered the important government interest of prohibiting public nudity. Justice Scalia concurred in the result, but wrote separately because he believed the statute regulated conduct, not expression. Justice Souter also wrote separately because he believed that the state's interest was to combat secondary effects, an interest unrelated to the suppression of expression. Justice White, joined by Justices Marshall, Blackmun, and Stevens, dissented, stating that the Indiana statute targeted the erotic message communicated by nude dancing. He would have applied a higher standard of scrutiny than the O’Brien test requires. Because the sanctions imposed in this case targeted the message communicated by Sigma Chi’s skit and are thus related to the suppression of speech, we do not rely on the O'Brien balancing test as the Barnes plurality did. . In Texas v. Johnson, discussed infra, the Supreme Court stated: In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether "[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” Johnson, 491 U.S. at 404, 109 S.Ct. at 2539 (quoting Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974)). . We think this conclusion gains support from City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988), in which the Supreme Court said that one factor weighing in the equation of whether conduct is expressive is "whether the activity in question is commonly associated with expression.” Id. at 769, 108 S.Ct. at 2150. A live, albeit crude, skit performed for an audience is an activity commonly associated with expression. . Nor can we accept the University's contention that the sanctions were imposed as a result of the Fraternity’s "pure conduct,” unrelated to its communicative aspects or viewpoint. See Arcara v. Cloud Books, Inc., 478 U.S. 697, 702-05, 106 S.Ct. 3172, 3175-77, 92 L.Ed.2d 568 (1986); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 & n. 5, 104 S.Ct. 3065, 3069 & n. 5, 82 L.Ed.2d 221 (1984); United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968); Kovacs v. Cooper, 336 U.S. 77, 89, 69 S.Ct. 448, 454, 93 L.Ed. 513 (1949). The University’s affidavits clearly point to the contrary conclusion. . In St. Paul, the Court rejected the Minnesota Supreme Court’s pronouncement that St. Paul's "hate speech” ordinance was narrowly tailored to serve St. Paul's compelling interest in "ensuring] the basic human rights of members of groups that ha[d] historically been subjected to discrimination.” St. Paul, - U.S. at -, 112 S.Ct. at 2549. Although the Court acknowledged that this interest was compelling, it concluded that the content discrimination contained in the ordinance was not “reasonably necessary to achieve St. Paul’s compelling interests.” Id. Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:

songer_casetyp1_2-2

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 "civil rights". NATIONAL TREASURY EMPLOYEES UNION and Joseph Mackin, Appellants, v. Jerome KURTZ, Commissioner, et al. No. 79-1086. United States Court of Appeals, District of Columbia Circuit. Argued Jan. 11, 1980. Decided May 20, 1980. Murray S. Horwitz, Atty., Dept, of Justice, Washington, D. C., with whom M. Carr Ferguson, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., Washington, D. C., at the time the brief was filed, and Crombie J. D. Garrett, Atty., Dept, of Justice, Washington, D. C., were on brief, for appellees. Myron C. Baum, Atty., Dept, of Justice, Washington, D. C., also entered an appearance for appellees. William E. Persina, Associate Gen. Counsel, Washington, D. C., with whom Robert M. Tobias, Gen. Counsel, National Treasury Employees Union, Washington, D. C., was on brief, for appellants. Before BAZELON, Senior Circuit Judge, TAMM, Circuit Judge, and JUNE L. GREEN, U.S. District Judge for the District of Columbia. Sitting by designation pursuant to 28 U.S.C. § 292(a) (1976). Opinion for the court filed by District Judge JUNE L. GREEN. Dissenting opinion filed by Senior Circuit Judge BAZELON. JUNE L. GREEN, District Judge: The issue in this ease is whether the District Court held correctly that appellants’ failure to exhaust their contractual remedies bars consideration of this suit. For the reasons stated below, we answer in the affirmative. I. Appellant Joseph Mackin, a Revenue Agent in the Internal Revenue Service (IRS) Philadelphia District Office, received a written reprimand for failing to report a bribery attempt. In response, Mr. Mackin and the appellant union, the National Treasury Employees Union (the Union) filed simultaneously a grievance and a lawsuit. The grievance sought removal of the letter of reprimand from Mr. Mackin’s personnel file, because the IRS employee who originally interrogated him tape recorded their conversation without giving any Miranda -like warnings or assurances allegedly required by §§ 634.32(1) and 634.5(2) of the Internal Revenue Manual. The grievance alleged, inter alia, violation of Article 33, § 1(e) of the Multi-District Agreement (Agreement) between the IRS and the Union, which states that “No bargaining unit employer (sic) will be the subject of a disciplinary action except for reasons which will promote the efficiency of the service.” Mr. Mackin requested and the IRS agreed to waive Steps 1 and 2 of the grievance procedure. A Step 3 meeting was held between Mackin and his counsel, and the Chief of the Philadelphia District Collections Division. At this meeting, appellants argued that the IRS failed to follow its procedures and had used improper tactics by obtaining information from Mr. Mackin without issuing warnings or assurances. The IRS Chief denied the grievance, ruling that Mr. Mackin was properly given a written reprimand for failing to report an apparent bribe. No appeal was filed, although a Step 4 hearing before the District Director was available within 10 days of an adverse Step 3 decision. If Step 4 were also adverse, Mr. Mackin could have requested arbitration. The lawsuit alleged violation of the Internal Revenue sections cited above, sought destruction of the tape from the initial interrogation, prohibition of the use of the information gleaned from the investigation in any proceeding against Mr. Mackin, and a declaratory order that the IRS should obey the regulations at issue. Upon cross-motions for summary judgment, the District Court declared that jurisdiction existed pursuant to 28 U.S.C. § 1331 for the alleged violation of the agency regulations at issue, but that it could not be invoked properly since Mr. Mackin had failed to pursue his grievance. II. The Agreement clearly could have provided Mr. Mackin with the relief he sought both in his grievance and lawsuit. Article 33 § 6.C states that the arbitrator’s authority and jurisdiction are “confined exclusively to the validity of the disciplinary action.” In our view, the word “validity” encompasses the procedural irregularity alleged here. Indeed, the appellant so argued in his grievance. Further, there is no practical difference between the relief sought in the grievance and lawsuit. While appellants sought destruction of the tape, such relief would be highly unlikely. Even in criminal cases, exclusion of tainted evidence, not destruction, is the rule. Fed.R.Crim.P. 41(f); 3 Wright and Miller, Federal Practice and Procedure § 673 (1978 Supp.). Contractual remedies existed to afford appellant the relief he sought in court: Mr. Mackin’s record could have been cleared, and the IRS put on notice that such methods of investigation would not be tolerated. The general rule requiring exhaustion of administrative remedies is applicable to labor-management disputes where the issue is subject to a contractual grievance and arbitration procedure. Republic Steel v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). This rule applies where, as here, the issue involves alleged violations of the employer’s regulations which are subject to the grievance procedure. Weitzel v. Portney, 548 F.2d 489 (4th Cir. 1977). Appellants’ argument that the violations of the Internal Revenue Manual alleged here create a separate and independent cause of action is foreclosed by the failure to attempt exhaustion of the contractual remedies. Weitzel v. Portney, supra, at 493. The decision of the District Court is Affirmed. . The Internal Revenue Manual is the instructional handbook for inspectors of the Internal Security Division of the IRS. Section 634.32(1) requires Miranda -like warnings to be given to a subject or suspect (employee or non-employee) of a criminal investigation where prosecution is anticipated. Section 635.5(2) requires assurances of right to silence and non-prosecution where it has been ascertained that the employee will not be prosecuted. . Appellants’ argument that the definition of “grievance” in Article 35 § 2 of the Agreement excludes remedying violations of the Internal Revenue Manual is undermined by their conduct in contesting the reprimand on these very grounds at the grievance hearing. Question: What is the specific issue in the case within the general category of "civil rights"? A. civil rights claims by prisoners and those accused of crimes B. voting rights, race discrimination, sex discrimination C. other civil rights Answer:

songer_bank_r1

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 first listed respondent is bankrupt. If there is no indication of whether or not the respondent is bankrupt, the respondent is presumed to be not bankrupt. MARTINEZ v. SANCHO, Treasurer. No. 3505. Circuit Court of Appeals, First Circuit. Jan. 10, 1940. F. Fernandez Cuyar and Carlos D. Vazquez, both of San Juan, P. R., for appellant. William Cattron Rigby, of Washington, D. C. (B. Fernandez Garcia, of San Juan, P. R., and Nathan R. Margold, of Washington, D. C., on the brief), for appellees. Before WILSON and MAGRUDER, Circuit Judges, and McLELLAN, District Judge. PER CURIAM. The plaintiff, appellant, bought a farm on which taxes for prior years had not been paid. Concededly when he bought the land, it was subject to a lien for the unpaid taxes for the current year and the three prior years, this by virtue of legislation by the Puerto Rican Legislature. Later, the defendants caused the property to be attached for these prior taxes and other taxes on the farm. Having paid or tendering taxes which had not become more “than three years old at the time of the attachment, the appellant sought an injunction against the attachment and sale of the land for the older taxes. Such an injunction against the defendants was ob-. tained in the District Court. The Supreme Court of Puerto Rico reversed the District Court and dismissed the complaint. The basic question was and is one involving local laws and the construction of statutes enacted by the Insular Legislature. No provision of the Constitution of the United States, no Act of the Congress, no Treaty was discussed or considered by the Supreme Court of Puerto Rico. None of these is directly involved in this appeal. There is no substantial Federal question to support our jurisdiction. The amount of the taxes here at issue is less than two hundred dollars. The value in controversy is far less than the jurisdictional $5,'000. Our right to hear and determine the appeal rests upon the provisions contained in U.S.Code, Title 28, Section 225, 28 U.S.C.A. § 225, reading, so far as here applicable, as follows: “§ 225. Appellate jurisdiction. “(a) Review of final decisions. The circuit courts of appeal shall have appellate jurisdiction to review by appeal final decisions. * * * “Fourth. In the Supreme Courts of the Territory of Hawaii and of Puerto Rico, in all cases, civil or criminal, wherein the Constitution or a statute or treaty of the United States or any authority exercised thereunder is involved; in all other civil cases wherein the value in controversy, exclusive of interests and costs, exceeds $5,-000, and in all habeas corpus proceedings.” The case at bar is not within the statute. The appeal is dismissed for want of jurisdiction. Question: Is the first listed respondent bankrupt? A. Yes B. No Answer:

songer_appfiduc

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 "fiduciaries". 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. NATHANSON v. NATIONAL LABOR RELATIONS BOARD. No. 4614. United States Court of Appeals First Circuit. Feb. 11, 1952. Louis K. Nathanson, Boston, Mass., pro se. Owsley Vose, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Harvey B. Diamond, Attorney, all of Washington, D. C., on brief), for appellee. Before CLARK, WOODBURY and HARTIGAN, Circuit Judges. HARTIGAN, Circuit Judge. This is an appeal by the Trustee in Bankruptcy of MacKenzie Coach Lines, Inc. from an order of the United States District Court for the District of Massachusetts, dated September 28, 1951, setting aside the bankruptcy referee’s disallowance of the amended claim of the National Labor Relations Board. The referee was also ordered to permit the matter to stand in abeyance for 2 months to permit the Board, in accordance with the National Labor Relations Act, to fix the precise amount now owing from the bankrupt to the Board and to file with the referee an amendment to its claim showing such amount. The opinion of the District Court is reported in 100 F.Supp. 489, 490, and recites in part that: “The National Labor Relations Board has petitioned for review of the order of Referee in Bankruptcy Smart, which disallowed the Board’s claim. These are the facts— “On January 3, 1947 the Board issued a complaint against the present bankrupt and another alleging that they had engaged in unfair labor practices in violation of -the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. After appropriate proceedings, the Board on February 4, 1948 ordered the bankrupt to pay certain persons back pay from the date of discrimination found by the Board to the date of an offer of reinstatement. June 7, 1948 an involuntary petition in bankruptcy was filed against the bankrupt. December 7, 1948 the Court of Appeals of this Circuit entered its decree enforcing the Board’s order. March 15, 1949 the Board filed with the Referee its proof of claim for the back pay of the persons covered by the court’s decree. The Referee held a hearing on April 17, 1950 at which he entertained an amendment to the claim and took evidence. June 29, 1950 the Referee disallowed the claim. His reasons, given in his December 1, 1950 certificate to this court, were that the persons covered by the back pay order were not employees of the bankrupt; that the claims of those persons had, in any event, been compromised by them and the bankrupt; and that the claims were not liquidated.” The trustee’s statement of points is as follows: “1. The Court erred in ruling that a Referee in Bankruptcy has no authority at any stage to rule upon matters involving the question whether a person is an employer under the National Labor Relations Act and the extent to which an employer is obligated to make restitution. “2. The Court erred in finding that the order of the National Labor Relations Board of February 4, 1948 was a final administrative determination that the future bankrupt was liable to make compensation according to a declared formula. “3. The Court erred in not ruling that the claim of the National Labor Relations Board was unliquidated. “4. The Court erred in not ruling that an unliquidated claim shall not be allowed unless liquidated or the amount thereof estimated in the manner and within the time directed by the Bankruptcy Court. “5. The Court erred in not ruling that the back pay order had been fully complied with. “6. The Court erred in ruling that the claim filed by the National Labor Relations Board is entitled to priority as a debt owing to the United States under Sec. 64(a) (5) of the Bankruptcy Act.” We believe that the District Court was right in ruling that the Board “ * * is the exclusive agency, subject to review by appellate courts of the United States, for determining whether under the National Labor Relations Act, a person is an ‘employer’ of another and obligated to make restitution to that other. § 10(a) of the National Labor Relations Act, as amended. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638. * * ” The decree of this court on December 7, 1948 affirmed and enforced the Board’s order of February 4, 1948. The Board’s order, among other things, required the respondents in the enforcement proceedings, Hill Transportation Company and MacKenzie Coach Lines, Inc., to take affirmative action in making whole in the manner set forth in “the remedy” certain persons whose names appeared in an appendix to the order “for any loss they may have suffered by reason of the respondents’ discrimination against them.” In - National Labor Relations Board v. Draper Corp., 1 Cir., 159 F.2d 294, 298, this court said: “If, after the entry of an enforcement decree imposing an obligation expressed in terms of a general formula, a bona fide dispute should arise as to the precise obligation of the respondent when the formula comes to be applied to a particular set of facts, there would in such a case be no danger that the respondent would be adjudged in criminal contempt until, after appropriate procedure, the respondent’s obligation is determined with the requisite precision and ultimately embodied in a supplemental decree of the enforcement court. * * * ” In a footnote to the opinion in National Labor Relations Board v. Bird Mach. Co., 1 Cir., 174 F.2d 404, this court noted the possibility of a supplemental order which would require a petition to this court for enforcement. It is then that the question of the precise amount and extent of the obligation can be passed upon by this court. Therefore, without laboring the point further, as to the extent of the bankrupt’s liability at this time, we pass to the other questions presented. We are satisfied that the district court was correct in ruling that the Board’s order is a judgment under § 63, sub. a(l) of the Bankruptcy Act, 11 U.S.C.A. § 103 sub. a(l), with the reservation however, as indicated above, that it is merely interlocutory as to the extent of the obligation on the back pay issue. See Haynes Stellite Co. v. Chesterfield, 6 Cir., 97 F.2d 985; Bird Mach. Co. case, supra. The questions remaining now are: (1) can the bankruptcy court liquidate such a claim, and (2) what priority is such a claim entitled to, if any. In its brief the Board states “ * * * the Bankruptcy Act vested in the Bankruptcy Court the power to disallow claims where the claimant has unduly delayed effecting the liquidation of his claims. Accordingly we acknowledged that should the Board unduly delay in commencing back pay proceedings, this might warrrant a court in holding that Section 57(d) of the Bankruptcy Act should prevail. [11 U.S. U.A. § 93, sub. d] * * * ” That section provides in part for the allowance of unliquidated claims within the time directed by the court and the disallowance of such a claim if it is not capable of liquidation -or that liquidation would unduly delay the •administration of the estate. The Board argues quite persuasively that it is not guilty of laches in not yet having liquidated its claim in view of the trustee’s position that the beneficiaries of the back pay order were not employees of the bankrupt and because of the important legal question as to what agency (Bankruptcy Court or the Board) should liquidate the claim. The determination by the district court appears to us to be reasonable in allowing the Board 2 months to fix the amount of the liability. This ruling has not been demonstrated to us to be inconsistent with the Bankruptcy Act. Rather the ruling appears to give effect to the intent of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. The Supreme Court said in International Association of Machinists v. Labor Board, 311 U.S. 72, 82, 61 S.Ct. 83, 89, 85 L.Ed. 50, reh. den. 311 Ü.S. 729, 61 S.Ct. 314, 85 L.Ed. 474: “* * * It is for the Board not the courts to determine how the effect of prior unfair labor practices may be expunged. * * * ” The determination of the amount of back pay is an integral part of the Board’s jurisdiction. It is within its particular competence and knowledge to decide such questions in effectuating the purposes of the National Labor Relations Act, subject to review by this court. An example cited in the Board’s brief is pertinent where it is stated: “ * * the ascertainment of the amount of back pay due involves .the determination of whether any of the employees have willfully incurred losses of earnings by unjustifiably refusing to take desirable new employment during the period following their discharge.” Cf. Harvest Queen Mill & Elevator Co., 90 NLRB 320. It is not improper for the bankruptcy court to “stay its hand” for a reasonable time pending an administrative determination of a question such as we have here. See Smith v. Hoboken R., etc., Co., 328 U.S. 123, 66 S.Ct. 947, 90 L.Ed. 1123, 168 A.L.R. 497. Cf. General American Tank Car Corp. v. Terminal Co., 308 U.S. 422, 60 S.Ct. 325, 84 L.Ed. 361, rehearing denied 309 U.S. 694, 60 S.Ct. 465, 84 L.Ed. 1035. The record is inconclusive on the question of whether or not the Board had approved a settlement of the back pay question. We agree, however, with the district court that there was no adequate showing that the Board approved any settlement agreement. See Bird Mach. Co. case, supra, and 29 C.F.R. 101.9. We now come to the last question which concerns the priority of the Board’s claim. The district court held that it was entitled to priority as a debt owing to the United States under § 64, sub. a (5) of the Bankruptcy Act, 11 U.S.C.A. § 104, sub. a(5). We concur in this view. See National Labor Relations Bd. v. Carlisle Lumber Co., 9 Cir., 108 F.2d 188; National Labor Relations Board v. Stackpole Carbon Co., 3 Cir., 128 F.2d 188. Cf. Bramwell v. U. S. Fidelity Co., 269 U.S. 483, 46 S.Ct. 176, 70 L.Ed. 368. In National Labor Relations Board v. Killoren, 8 Cir., 122 F.2d 609, 137 A.L.R. 510, certiorari denied 314 U.S. 696, 62 S.Ct. 412, 86 L.Ed. 556, the court held that a back pay allowance under the provisions of the National Labor Relations Act is entitled to a § 64, sub. a (2) priority, yet it contains language favorable to the Board’s contention in this case. The court said at pages 612, 614 of 122 F.2d: “It was an obligation or indebtedness of a public character, which the Board alone was authorized to enforce. * * * The Board was therefore a creditor under the Bankruptcy Act, * * * í»í 5}C J-í í{C jfc “Under the position here taken, we deem it unnecessary to determine whether an award of hack pay may, for any other purpose, he regarded as a debt due to the United States.” We do not regard the Board’s claim here as a penalty. On this ground, the case of Republic Steel Corp. v. Labor Board, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6, is clearly distinguishable. See National Labor Relations Board v. Baltimore T. Co., 4 Cir., 140 F.2d 51, certiorari denied 321 U.S. 795, 64 S.Ct. 848, 88 L.Ed. 1084. The inequity envisaged by the court in the Killoren case, supra, is not a factor in the circumstances here where there is no indication that there are any wage claimants whose claims would be prejudiced by the allowance of a § 64, sub. a(5) priority. The Board argues persuasively in its brief that even if equities are to be considered as between the two classes of workers (those who worked and those who were discriminatorily discharged) the latter should be favored. The brief states: “ * * * And it is only because these employees relied upon the assurances of their Government that they could freely engage in union activity without fear of réprisal that they are now faced with the prospect that if priority under Section 64, sub. a (5) is denied, then they must take their chances with the general creditors, which puts them in a much worse position than the working employees who have received their-wages in full. Thus the hypothetical inequity which may result from a refusal to apply the rule of the Killoren case, which, as we show below is not as rigid as appellant assumes, must be balanced against the inequitable deprivation to which the discharged employees are exposed in the absence of the fifth priority. It is unrealistic to sacrifice the equities of these many for the sake of a few who, as in the hypothetical case assumed by the Court in the Killoren case, voluntarily risked working without wages for more than three months preceding the bankruptcy of their employer.” Since the obligation to take action in such claims runs to the Board, which is an agency of the United States, and because its proceeding in this fashion is consistent with its duty to effectuate the purposes of the National Labor Relations Act, we conclude Lhat its claim is entitled to a § 64, sub. a (5) priority under the Bankruptcy Act. The order of the district court is affirmed. Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number. Answer:

songer_genresp2

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 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. PIEDMONT FIRE INS. CO. v. AARON et al. No. 5108. Circuit Court of Appeals, Fourth Circuit. Nov. 8, 1943. Charles E. Ford, of Washington, D. C., and Alexander H. Sands, of Richmond, Va., for appellant. William Davis Butts, of Newport News, Va., for appellees Mrs. D. E. Roles and Mrs. Walter Rooks. Tazewell Taylor, of Norfolk, Va., and Allan D. Jones, of Newport News, Va. (Jones, Blechman & Jones, of Newport News, Va., on the brief), for appellee Harry J. Aaron. PARKER, Circuit Judge. This is an appeal from an order dismissing a suit for a declaratory judgment. On September 11, 1942, one Harry J. Aaron, a fur dealer, instituted an action at law in the Circuit Court of Newport News, Virginia, to recover on a contract of insurance evidenced by a binder issued by an agent of the defendant Piedmont Fire Insurance Company. A few days later, the insurance company filed a suit for declaratory judgment in the United States District Court for the Eastern District of Virginia, asking that the binder be declared null and void on the ground of fraud and misrepresentation in the procurement, and that the insurance company be declared not liable under the binder, either to Aaron or to persons who had stored with him furs which were claimed by him to be covered by the binder. A number of these persons were made parties to the suit as representatives of a numerous class, and two other insurance companies which had issued policies covering the loss were joined as defendants. The action instituted in the state court was promptly removed by the insurance company into the federal court, in which the suit for declaratory judgment had already been commenced; and an order was entered that the two causes be consolidated. Later, upon motion of Aaron that the issue as to liability on the binder be tried before a jury, an order was entered that it be so tried and that the suit for declaratory judgment be dismissed. An affidavit filed with this court, the allegations of which are not controverted by the insurance company, shows that Aaron has made settlement with all except ten of the 976 persons who had stored furs with him; that settlement has been made with eight of these ten claimants by other insurance companies who have agreed to await the outcome of this suit for the adjustment of their claims; that the total of the ten claims does not exceed $1,500; and that Aaron is willing to deposit that sum in the registry of the court to assure the settlement of the claims. It was stated, without contradiction, that the situation at the time of the pretrial conference preceding the entry of the order of dismissal was not substantially different. There was no controversy between the insurance companies as to the liability of the companies joined as defendants in the suit for declaratory judgment. There, was, consequently, but one substantial issue left in the case and, as stated by the judge below, that issue was fully determinable in the action on the binder, which was first instituted and which was retained within the court’s jurisdiction when the order dismissing the suit for declaratory judgment was entered. It is clear, we think, that the order appealed from should be affirmed. The question as to whether the insurance company was liable on the binder was one for trial by jury whether arising in the action on the binder or in the suit for declaratory judgment. “Ordinarily when the defense of fraud may be interposed to an action at law on the policy and such action is imminent or pending, there is no occasion for equitable relief and the parties will be left to their rights as determined in the suit at law”. Atlas Life Ins. Co. v. W. I. Southern, Inc., 306 U.S. 563, 59 S.Ct. 657, 661, 83 L.Ed. 987; Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440; Di Giovanni v. Camden Fire Ins. Co., 296 U.S. 64, 56 S.Ct. 1, 80 L.Ed. 47; Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 63 S.Ct. 163, 87 L. Ed. -. Express provision is made in the Federal Declaratory Judgment Act for jury trial of “issues of fact triable by a jury”. 28 U.S.C.A. § 400(3); Rule 57 of Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c; Moore’s Federal Practice, vol. 3, p. 3231; Borchard, Declaratory Judgments, 2d Ed., pp. 399, 403 Contention is made that recovery on the binder could be had only in equity, and that under the Rules of Civil Procedure trial by jury was not mandatory for that reason. It has long been established, however, that recovery at law may be had upon the contract for temporary insurance which the binder evidences. 26 C.J. 51; 29 Am. Jur. 143; Kerr v. Union Marine Ins. Co., D.C., 124 F. 835, 837; Ellis v. Albany City Fire Ins. Co., 50 N.Y. 402, 10 Am.Rep. 495; Angell v. Hartford Fire Ins. Co., 59 N.Y. 171, 17 Am.Rep. 322; Hicks v. British American Ins. Co., 162 N.Y. 284, 56 N.E. 743, 48 L.R.A. 424; Sanford v. Orient Ins. Co., 174 Mass. 416, 54 N.E. 883, 75 Am.St.Rep. 358; Chenier v. Insurance Co., of North America, 72 Wash. 27, 129 P. 905, 48 L.R.A.,N.S., 319, Ann.Cas. 1914D, 649; National Liberty Ins. Co. v. Jones, 165 Va. 606, 183 S.E. 443; Lea & Adcock v. Atlantic Fire Ins. Co., 168 N.C. 478, 84 S.E. 813. Since there was no occasion to retain the declaratory judgment suit for the determination of the rights of those who had stored furs with Aaron or the liability of the other insurance companies, and since the only issue remaining in the case would necessarily be tried in the same way in the action to recover on the binder as in the suit for declaratory judgment, there was no occasion to complicate the record or the procedure by retaining that suit, and the order dismissing that portion of the consolidated proceeding was properly entered. It is true that the pendency of another proceeding in which relief can be granted does not necessarily preclude the maintenance of a suit for declaratory judgment. Ætna Casualty & S. Co. v. Yeatts, 4 Cir., 99 F.2d 665. The granting of declaratory relief, however, is a matter resting in the sound discretion of the court; and the discretion is properly exercised by dismissing the suit when it is apparent that it will serve no useful purpose. Ætna Casualty & S. Co. v. Quarles, 4 Cir., 92 F.2d 321; Maryland Casualty Co. v. Boyle Const. Co., 4 Cir., 123 F.2d 558; Brillhart v. Excess Ins. Co., 316 U.S. 491, 494, 62 S.Ct. 1173, 86 L.Ed. 1620. There was no error and the order appealed from will be affirmed. Affirmed. 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:

sc_respondent

027

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. REYNOLDS v. UNITED STATES No. 10-6549. Argued October 3, 2011 Decided January 23, 2012 Candace Cain argued the cause for petitioner. With her on the briefs were Lisa B. Freeland, Renee D. Pietropaolo, Tara I. Allen, Kimberly R. Brunson, and Peter R. Moyers. Melissa Arbus Sherry argued the cause for the United States. With her on the brief were Solicitor General Ver-rilli, Assistant Attorney General Breuer, Deputy Solicitor General Dreeben, and J. Campbell Barker. Justice Breyer delivered the opinion of the Court. The federal Sex Offender Registration and Notification Act (Act), 120 Stat. 590, 42 U. S. C. § 16901 et seq. (2006 ed. and Supp. Ill), requires those convicted of certain sex crimes to provide state governments with (and to update) information, such as names and current addresses, for inclusion on state and federal sex offender registries. §§ 16912(a), 16913-16914, 16919(a) (2006 ed.). The Act makes it a crime for a person who is “required to register” under the Act and who “travels in interstate or foreign commerce” knowingly to “fai[l] to register or update a registration . . . .” 18 U. S. C. § 2250(a). The question before us concerns the date on which this federal registration requirement took effect with respect to sex offenders convicted before the Act became law. The Act defines the term “sex offender” as including these pre-Act offenders. 42 U. S. C. § 16911(1); see Carr v. United States, 560 U. S. 438,447 (2010). It says that “[a] sex offender shall register.” § 16913(a). And it further says that “[t]he Attorney General shall have the authority to specify the applicability of the [registration] requirements ... to sex offenders convicted before the enactment of this chapter ....” § 16913(d) (emphasis added). In our view, these provisions, read together, mean that the Act’s registration requirements do not apply to pre-Act offenders until the Attorney General specifies that they do apply. We reverse a Court of Appeals determination that, in effect, holds the I A The new federal Act reflects Congress’ awareness that pre-Act registration law consisted of a patchwork of federal and 50 individual state registration systems. See 73 Fed. Reg. 38045 (2008). The Act seeks to make those systems more uniform and effective. It does so by repealing several earlier federal laws that also (but less effectively) sought uniformity; by setting forth comprehensive registration-system standards; by making federal funding contingent on States’ bringing their systems into compliance with those standards; by requiring both state and federal sex offenders to register with relevant jurisdictions (and to keep registration information current); and by creating federal criminal sanctions applicable to those who violate the Act’s registration requirements. 18 U. S. C. § 2250(a) (criminal provision); 42 U. S. C. §§ 16911(10), 16913-16916 (2006 ed. and Supp. Ill) (registration requirements); § 16925 (federal funding); § 129, 120 Stat. 600 (repeal of earlier laws). The Act’s criminal penalty applies to “[w]ho[m]ever ... is required to register under [the Act].” 18 U. S. C. § 2250(a). It says that such a person (a federal sex offender or a nonfed-eral sex offender who travels in interstate commerce) must not knowingly fail “to register or update a registration as required by [the Act].” Ibid, (emphasis added); see Appendix, infra, at 446. The relevant registration requirements are set forth in an Act provision that states: “Registry requirements for sex offenders “(a) In general “A sex offender [defined to include any offender who was convicted of a sex offense] shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. . . . “(b) Initial registration “The sex offender shall initially register [either] before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or [for those not sentenced to prison] not later than 3 business days after being sentenced .... “(c) Keeping the registration current “A sex offender shall [update his registration within] 3 business days after each change of name, residence, employment, or student status [by] appearing] in person in at least 1 jurisdiction involved ... and informing] that jurisdiction of all [relevant] changes .... “(d) Initial registration of sex offenders unable to comply with subsection (b) “The Attorney General shall have the authority to specify the applicability of the [registration] requirements ... to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).” 42 U. S. C. § 16913 (emphasis added). The new Act became law on July 27, 2006. On February 28, 2007, the Attorney General promulgated an Interim Rule specifying that “[t]he requirements of [the Act] apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” 72 Fed. Reg. 8897 (2007) (codified at 28 CFR §72.3). Subsequently, the Attorney General promulgated further rules, regulations, and specifications. See 73 Fed. Reg. 38030; 75 Fed. Reg. 81849 (2010); 76 Fed. Reg. 1630 (2011). The present case focuses upon the applicability of the Act’s registration requirements to pre-Act offenders during the period between (1) July 27, 2006 (when the Act took effect) and (2) the moment when the Attorney General promulgated a valid rule specifying the registration requirements’ applicability, namely, February 28, 2007 (or a later date if the February 28 specification was invalid). B Billy Joe Reynolds, the petitioner, is a pre-Act offender. He was convicted of a Missouri sex offense in October 2001; he served four years in prison; he was released in July 2005; he then registered as a Missouri sex offender; but he moved to Pennsylvania in September 2007 without updating his Missouri registration information (as Missouri law required) and without registering in Pennsylvania. A federal grand jury indicted him, charging him with, between September 16 and October 16, 2007, having “knowingly failed to register and update a registration as required by [the Act].” App. 13; see 18 U. S. C. § 2250(a). In the Government’s view, Reynolds’ failure to update his address information when he moved to Pennsylvania violated the requirement that a “sex offender” update registration information within “3 business days after each change of . . . residence.” 42 U. S. C. § 16913(c). Reynolds moved to dismiss the indictment on the ground that in September and October 2007 the Act’s registration requirements had not yet become applicable to pre-Act offenders. He conceded that the Act had become law earlier (namely, in July 2006), and he conceded that the Attorney General had already (in February 2007) promulgated an Interim Rule specifying that the Act's registration requirements were applicable to pre-Act offenders. But he claimed that the Interim Rule was invalid because it violated both the Constitution’s “nondelegation” doctrine and the Administrative Procedure Act’s (APA) requirement for “good cause” to promulgate a rule without “notice and comment” (as the Attorney General had done). See A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 529 (1935) (non-delegation doctrine); 5 U. S. C. §§ 553(b)(3)(B), (d)(3) (APA). Because the Interim Rule is invalid, he added, the law must treat him like a pre-Act offender who traveled interstate and violated the Act’s registration requirements before the Attorney General specified their applicability. The District Court rejected on the merits Reynolds’ legal attack on the Interim Rule. But the Court of Appeals rejected Reynolds’ argument without reaching those merits. 380 Fed. Appx. 125 (CA3 2010). That court thought that the Act’s registration requirements apply to pre-Act offenders such as Reynolds (who was subject to a pre-existing state-law registration requirement) from the date of the new law’s enactment — even in the absence of any rule or regulation by the Attorney General specifying that the new registration requirements apply. That being so, the validity of the Interim Rule could make no legal difference, for the Act required Reynolds to follow the new federal registration requirements regardless of any rulemaking. The Courts of Appeals have reached different conclusions about whether the Act’s registration requirements apply to pre-Act offenders prior to the time that the Attorney General specifies their applicability, i. e., from July 2006 until at least February 2007. Six Circuits have held that the Act’s' registration requirements do not apply to pre-Act offenders unless and until the Attorney General so specifies. United States v. Johnson, 632 F. 3d 912, 922-927 (CA5 2011); United States v. Valverde, 628 F. 3d 1159, 1162-1164 (CA9 2010); United States v. Cain, 583 F. 3d 408, 414-419 (CA6 2009); United, States v. Hatcher, 560 F. 3d 222, 226-229 (CA4 2009); United States v. Dixon, 551 F. 3d 578, 585 (CA7 2008); United States v. Madera, 528 F. 3d 852, 856-859 (CA112008) (per cu-riam). Five Circuits have held that they apply from the date of the Act’s enactment, and prior to any such specification, at least with respect to pre-Act offenders who had already registered under state law. United States v. Fuller, 627 F. 3d 499, 506 (CA2 2010); United States v. DiTomasso, 621 F. 3d 17, 24 (CA1 2010); United States v. Shenandoah, 595 F. 3d 151,163 (CA3 2010); United States v. Hinckley, 550 F. 3d 926, 932 (CA10 2008); United States v. May, 535 F. 3d 912, 918-919 (CA8 2008). In light of this split, we agreed to consider the question. II A The question before us is whether the Act requires pre-Act offenders to register before the Attorney General validly specifies that the Act’s registration provisions apply to them. We believe that it does not. For one thing, a natural reading of the textual language supports our conclusion. The text consists of four statements. See supra, at 436. Statement One says that “[a] sex offender shall register, and keep the registration current.” Statement Two says that a sex offender must initially register before completing his “sentence of imprisonment” (or, if the sentence does not involve imprisonment, within three days of conviction). Statement Three says that the sex offender must update a registration within three business days of any change of “name, residence, employment, or student status.” Statement Four says that “[t]he Attorney General shall have the authority to specify the applicability of the requirements of this subchap-ter to sex offenders convicted before the enactment of this chapter.” Read naturally, the Fourth Statement modifies the First It specifically deals with a subset (pre-Act offenders) of a broad general class (all sex offenders) to which the First Statement applies. And it therefore should control the Act’s application to that subset. See Gozlon-Peretz v. United States, 498 U. S. 395, 407 (1991) (specific statutory provision normally controls over one of more general application); see also Bloate v. United States, 559 U. S. 196, 207 (2010) (same). At the same time, the Fourth Statement says that the Attorney General has authority to specify the Act’s “applicability,” not its “nonapplicability.” And it consequently is more naturally read as conferring the authority to apply the Act, not the authority to make exceptions. That is how we normally understand a term such as “authority to specify” in the context of applying new rules to persons already governed by pre-existing rules. If, for example, the Major League Baseball Players Association and the team owners agreed that the Commissioner of Baseball “shall have the authority to specify the applicability” to the major leagues of the more stringent minor league drug testing policy, we should think that the minor league policy would not apply unless and until the commissioner so specified. For another thing, this reading of the Act efficiently resolves what Congress may well have thought were practical problems arising when the Act sought to apply the new registration requirements to pre-Act offenders. The problems arise out of the fact that the Act seeks to make more uniform a patchwork of pre-existing state systems. Doing so could require newly registering or reregistering “a large number” of pre-Act offenders. That effort could prove expensive. And it might not prove feasible to do so immediately. See 73 Fed. Reg. 38063 (recognizing these problems). Congress’ concern about these problems is reflected in the Act’s providing the States with three years to bring their systems into compliance with federal standards while permitting the Attorney General to extend that 3-year grace period to five years. 42 U. S. C. § 16924. These same considerations might have warranted different federal registration treatment of different categories of pre-Act offenders. Cf. 73 Fed. Reg. 38035-38036 and 38046-38047 (final Department of Justice guidelines allowing States to meet Act requirements without registering certain categories of pre-Act offenders); 76 Fed. Reg. 1635-1636 (supplemental guidelines allowing the same). At least Congress might well have so thought. And consequently, Congress might well have looked for a solution. Asking the Department of Justice, charged with responsibility for implementation, to examine these pre-Act offender problems and to apply the new registration requirements accordingly could have represented one efficient and desirable solution (though we express no view on Reynolds’ related constitutional claim). Cf. 42 U. S. C. §§ 16912(b), 16914(a)(7), (b)(7), 16919, 16941,16945 (granting the Attorney General authority to administer various aspects of the Act). And that is just the solution that the Act’s language says that Congress adopted. Finally, our reading of the Act takes Congress to have filled potential lacunae (created by related Act provisions) in a manner consistent with basic background principles of criminal law. The Second Statement, for example, says that a sex offender must register before completing his prison term, but the provision says nothing about when a pre-Act offender who completed his prison term pre-Act must register. Although a state pre-Act offender could not be prosecuted until he traveled interstate, there is no interstate requirement for a federal pre-Act offender. And to apply the Act to either of these pre-Act offenders from the date of enactment would require reading into the statute, silent on the point, some kind of unsaid equivalent (e. g., registering or updating within a “reasonable time” or “within three days of first post-Act travel in interstate commerce” or “as preexisting state law requires”). Pre-Act offenders, aware of such complexities, lacunae, and difficulties, might, on their own, reach different conclusions about whether, or how, the new registration requirements applied to them. A ruling from the Attorney General, however, could diminish or eliminate those uncertainties, thereby helping to eliminate the very kind of vagueness and uncertainty that criminal law must seek to avoid. Cf., e. g., United States v. Lanier, 520 U. S. 259, 266 (1997) (noting that “the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered”). B The Government makes three principal arguments to the contrary. First, it says that our interpretation of the Act conflicts with one basic statutory purpose, namely, the “establish[ment of] a comprehensive national system for the registration of [sex] offenders,” 42 U. S. C. § 16901, that includes offenders who committed their offenses before the Act became law. The Act reflects that purpose when it defines “sex offender” broadly to include any “individual who was convicted of a sex offense.” § 16911(1). And we have recognized that purpose in stating that, in general, the Act’s criminal provisions apply to any pre-Act offender required to register under the Act who later travels interstate and fails to register. See Carr, 560 U. S., at 447. The Act’s history also reveals that many of its supporters placed considerable importance upon the registration of pre-Act offenders. See, e. g., H. R. Rep. No. 109-218, pt. 1, p. 24 (2005) (H. R. Rep.) (“[Twenty] percent of sexual offenders are 'lost,’ and there is a strong public interest in finding them and having them register with current information to mitigate the risks of additional crimes against children”); 152 Cong. Rec. 15333 (2006) (statement of Sen. Cantwell) (“Child sex offenders have exploited this stunning lack of uniformity, and the consequences have been tragic. Twenty percent of the Nation’s 560,000 sex offenders are 'lost’ because State offender registry programs are not coordinated well enough”); id., at 15338 (statement of Sen. Kyi) (“There currently are over 100,000 sex offenders in this country who are required to register but are ‘off the system.’ They are not registered. The penalties in this bill should be adequate to ensure that these individuals register”); id., at 13050 (statement of Sen. Frist) (“There are currently 550,000 registered sex offenders in the U. S. and at least 100,000 of them are missing from the system. Every day that we don’t have this national sex offender registry, these missing sex predators are out there somewhere”). The difficulty with the Government’s argument, however, is that it overstates the need for instantaneous registration of pre-Act offenders. Our different reading, we concede, involves implementation delay. But that delay need not be long (the Attorney General issued his Interim Rule 217 days after the effective date of the new law). And that delay can be justified by the need to accommodate other Act-related interests. See supra, at 440-442. Second, the Government suggests that our reading leads to an absurd result. As it points out, the Fourth Statement grants the Attorney General the “authority to specify” the registration requirements’ applicability not only to pre-Act offenders but also to those convicted prior to the “implementation” of the new Act “in a particular jurisdiction.” Some jurisdictions might not implement the Act for up to five years. See 42 U. S. C. § 16924; see also Dept, of Justice, Office of Justice Programs, Justice Department Finds 24 Jurisdictions Have Substantially Implemented SORNA Requirements (July 28, 2011) (stating that as of July 28, 2011, 14 States had implemented the Act’s requirements), http:// www.ojp.usdoj.gov/newsroom/pressreleases/2011/SMART_ PR-072811.htm (all Internet materials as visited Jan. 19, 2012, and available in Clerk of Court’s case file). Yet, the Government concludes, it is absurd to believe that Congress would have desired so long a delay in the application of its new registration requirements. The problem with this argument, however, is that reading the two categories similarly (a matter which we need not decide) would not require a long delay in applying the registration requirements to post-Act offenders who committed a crime in a jurisdiction that is slow to implement the new requirements. At most, that reading would require the Attorney General to promulgate a rule applicable to all preimplementation offenders. That rule could specify that the Act’s preregistration provisions apply to some or to all those offenders. And it could do so quickly, well before a jurisdiction implements the Act’s requirements. Indeed, the Attorney General’s Interim Rule and the Department of Justice’s final guidelines, both issued before any jurisdiction implemented the Act’s requirements, state that the Act’s requirements apply to “all sex offenders,” including all preim-plementation offenders. See 72 Fed. Reg. 8897 (codified at 28 CFR § 72.3); 73 Fed. Reg. 38036; cf. Dept, of Justice, Office of Justice Programs, Justice Department Announces First Two Jurisdictions To Implement Sex Offender Registration and Notification Act (Sept. 23,2009), http://www.ojp.usdoj.gov/ newsroom/pressreleases/2009/SMART09154.htm. Third, the Government argues against our interpretation on the ground that the Act says only that the Attorney General “shall have the authority to specify the applicability” of the Act’s registration requirements to pre-Act offenders; it does not say that he “shall specify” or otherwise require him to do so. The Act’s language, the Government continues, consequently gives the Attorney General the power not to specify anything; that power is inconsistent with Congress’ intent to ensure the speedy registration of thousands of “lost” pre-Act offenders, supra, at 442-443; and we can avoid this result only by reading the Act’s registration requirements as applying immediately and on their own to all pre-Act offenders (though the Attorney General would have the power to make exceptions). This argument bases too much upon too little. There is no reason to believe that Congress feared that the Attorney General would refuse to apply the new requirements to pre-Act offenders. See, e. g., H. R. Rep., at 23-24; Protecting Our Nation’s Children From Sexual Predators and Violent Criminals: What Needs To Be Done? Hearing before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Committee on the Judiciary, 109th Cong., 1st Sess., 4-13 (2005); Office of the Press Secretary, The White House, President Signs H. R. 4472, the Adam Walsh Child Protection and Safety Act of 2006 (July 27, 2006), http:// georgewbush-whitehouse.archives.gov/news/releases/2006/ 07/20060727-6.html. And there was no need for a mandatory requirement to avoid that unrealistic possibility. There is consequently no need to read the language unnaturally as giving the Attorney General the authority only to make exceptions from an implicit (unstated) rule that would otherwise apply the new registration requirements to all pre-Act offenders across the board and immediately. Finally, we note that some lower courts have read the Attorney General’s specification authority as applying only to those pre-Act sex offenders unable to comply with the statute’s “initial registration” requirements. See 42 U. S. C. § 16913(b). That, however, is not what the statute says. Rather, its Fourth Statement, § 16913(d), says that the Attorney General has the authority (1) to specify the applicability of the registration requirements to pre-Act (and preimple-mentation) offenders, “and” (2) to prescribe rules for their registration, “and” (3) to prescribe registration rules for other categories of sex offenders who are unable to comply with the initial registration requirements. See supra, at 436. The word “and” means that the Attorney General’s authority extends beyond those pre-Act “sex offenders who are unable to comply” with the initial registration requirements. I — I I — I ⅜ — I For these reasons, we conclude that the Act’s registration requirements do not apply to pre-Act offenders until the Attorney General so specifies. Whether the Attorney General’s Interim Rule sets forth a valid specification consequently matters in the case before us. And we reverse the Third Circuit’s judgment to the contrary. We remand the case for further proceedings consistent with this opinion. So ordered. APPENDIX 18 U. S. C. § 2250(a) “In General. — Whoever— “(1) is required to register under the Sex Offender Registration and Notification Act; “(2) (A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or “(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and “(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act; “shall be fined under this title or imprisoned not more than 10 years, or both.” 42 U. S. C. § 16913 “Registry requirements for sex offenders “(a) In general “A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence. “(b) Initial registration “The sex offender shall initially register — (1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or (2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment. “(c) Keeping the registration current “A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register. “(d) Initial registration of sex offenders unable to comply with subsection (b) “The Attorney General shall have the authority to specify the applicability of the requirements of this sub-chapter to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b). “(e) State penalty for failure to comply “Each jurisdiction, other than a Federally recognized Indian tribe, shall provide a criminal penalty that includes a maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply with the requirements of this subchapter.” Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:

songer_genresp2

A

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. Marion BELL, as Administratrix of the Estate of Thomas L. Bell, and Marion Bell, Plaintiff-Appellee, Cross-Appellant, v. A-LEET LEASING CORPORATION, Citibank, N.A., Mercedes-Benz Manhattan, Inc., and Avery Agency, Inc., Defendants, A-Leet Leasing Corporation and Citibank, N.A., Defendants-Appellants, A-Leet Leasing Corporation, Defendant-Appellant, Cross-Appellee, Mercedes-Benz Manhattan, Inc., Defendant-Appellee. Nos. 33, 265, Dockets 88-7284, 88-7296. United States Court of Appeals, Second Circuit. Argued Sept. 16, 1988. Decided Dec. 15, 1988. Bradley B. Davis, New York City, for plaintiff-appellee, cross-appellant. Wendy E. Wells, New York City, for defendants-appellants. Cushing 0. Condon, New York City (William P. Ford, John F. Boland, Ford Marrin Esposito Witmeyer, New York City, of counsel), for defendant-appellee. Before KAUFMAN and MAHONEY, Circuit Judges, and McAYOY, District Judge. The Honorable Thomas J. McAvoy of the United States District Court for the Northern District of New York, sitting by designation. PER CURIAM: Defendant-appellant and cross-appellee A-Leet Leasing Corporation (“A-Leet”), defendant-appellant Citibank, N.A. (“Citibank”), and plaintiff-appellee, cross-appellant Marion Bell (“Bell”) appeal from a judgment entered upon a jury verdict in the United States District Court for the Southern District of New York, Gerard L. Goet-tel, Judge, for Bell against A-Leet and Citibank in the amount of $17,229, as remitted, plus interest and costs. On appeal, A-Leet and Citibank seek reversal of the judgment, or in the alternative a new trial. Bell seeks additer to the judgment and remand for trial on additional liability against A-Leet and Mercedes-Benz Manhattan, Inc. (“Mercedes-Benz”). We affirm the judgment of the district court. In the spring of 1981, the late Dr. Thomas L. Bell desired to purchase a Mercedes-Benz automobile from Mercedes-Benz, a dealership in New York City. Because of a poor credit rating and a number of outstanding judgments against him, Dr. Bell could only lease the car. The financial transaction was as follows: Mercedes-Benz sold the car to A-Leet for $42,900. A-Leet paid Mercedes-Benz with a $15,000 down payment received from Dr. Bell and a $27,900 loan borrowed from Citibank. Dr. Bell’s obligation, in addition to the $15,000 down payment, was to make an initial monthly payment of $3,027.15 to A-Leet and forty-five monthly payments of $1,009.05 to Citibank until Citibank’s loan to A-Leet was retired, after which A-Leet was to receive the monthly payments. After a number of monthly payments were received late and some were paid with checks that were later returned, A-Leet repossessed the car on January 3, 1983. Dr. Bell promptly commenced this action for damages. As finally amended, the complaint named as defendants A-Leet, Citibank, Mercedes-Benz and Avery Agency, Inc. (“Avery”) (a defendant below, the re-possessor of the vehicle). In October, 1983, Dr. Bell died and his wife Marion Bell was substituted as plaintiff (both as admin-istratrix and individually, since she was a cosigner of the lease). Bell alleged inadequate credit disclosure in violation of 15 U.S.C. § 1601 et seq. (1982), wrongful repossession in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (1982), overcharge for the car, usurious interest in violation of state law, failure to account for cash payments, and violation of N.Y.Gen.Oblig.Law § 5-702 (McKinney 1978 & Supp.1988) by failure to use plain language in the lease documents. At the close of plaintiff’s case, the district court dismissed all claims against Mercedes-Benz except a claim that Mercedes-Benz received, but did not account for, a $2,000 cash payment from Dr. Bell. This claim was decided in favor of Mercedes-Benz by the jury. Thereafter, the district court dismissed all claims against Avery and directed judgment in favor of Mercedes-Benz on all claims. The district court refused to dismiss plaintiff’s claims against A-Leet or Citibank at the conclusion of plaintiff’s direct case, and also denied these defendants’ motion for a directed verdict at the close of trial. The jury found A-Leet and Citibank liable for breach of contract, and rendered a verdict of $25,000 in damages. Defendants A-Leet and Citibank moved for a new trial on the breach of contract claim, or alternatively, solely on the issue of damages. The district court denied the motion for a new trial, subject to plaintiffs’ acceptance of a remittitur reducing the verdict to $17,229. The district court reasoned that measuring plaintiffs damages as the fair market value of the car at the time of repossession, as the jury was instructed to do, damages could only amount to $16,229. This figure was computed by subtracting the present value of Bell’s future obligations for payments on the car (including the purchase option price), $26,671, from its retail value, $42,900, and adding to the resulting figure, $16,229, $1,000 representing the Bells’ loss of use of the car. The jury’s verdict of $25,000 in damages was almost fifty percent greater than the proper measure of damages, and was thus deemed excessive. The only significant issue on appeal, out of the myriad raised by the parties, is whether the jury’s finding is supported by the evidence presented at trial. Early in the litigation, the attorney for A-Leet and Citibank submitted answers to interrogatories that erroneously stated the number of monthly lease payments paid by Dr. Bell. The interrogatory answers mistakenly reflected checks sent by Dr. Bell that were dishonored by the bank on which they were drawn. Although successor counsel for A-Leet and Citibank detected the errors prior to trial, no steps were taken to correct them. The district court disagreed with the jury verdict, but concluded that the verdict was not “so contrary to the weight of the evidence as to require a new trial.” We conclude that the district court did not err in denying A-Leet and Citibank’s motions for a new trial. It is clear that answers to interrogatories may be utilized as admissions. Gadaleta v. Nederlandsch-Amerekaansche Stoomvart, 291 F.2d 212, 213 (2d Cir.1961). “ ‘When there is conflict between answers in response to interrogatories and answers obtained through other questioning, either in deposition or trial, the finder of fact must weigh all of the answers and resolve the conflict.’ ” Freed v. Erie Lackawanna Ry. Co., 445 F.2d 619, 621 (6th Cir.1971) (quoting Victory Carriers, Inc. v. Stockton Stevedoring Co., 388 F.2d 955, 959 (9th Cir.1968)). This, we may infer, the jury did. Our main purpose in publishing this opinion is to remind the counsel in this case, as well as all counsel appearing before this court, of the importance we place upon resolving appeals whenever possible through this circuit’s Civil Appeals Management Plan (“CAMP”). CAMP was instituted by this circuit, pursuant to Fed. R.App.P. 33: (1) to encourage the resolution of appeals without participation by judges, thus preserving their scarcest and most precious asset, time; (2) to expedite the consideration of appeals that will be briefed and argued; (3) to have Staff Counsel help the parties clarify the issues on appeal; and (4) to dispose of minor procedural motions without expenditure of judicial resources. Kaufman, Must Every Appeal Run the Gamut? — The Civil Appeals Management Plan, 95 Yale L.J. 755, 756 (1986); see also Kaufman, The Pre-Argument Conference: An Appellate Procedural Reform, 74 Colum.L.Rev. 1094, 1094 (1974). CAMP does not deprive the parties of their right to appeal — this court fully recognizes that every party has a right to appeal a district court ruling. Moreover, the purpose of CAMP is not to pressure parties to settle or withdraw an appeal. Further, we recognize that, in the words of the hallowed jurisprudential maxim, “it takes two (in this case more) to tango,” and one obdurate party or counsel can thus frustrate an otherwise available settlement without any blame legitimately attaching to the remaining dramatis personae. Having said all this, we question whether a more meaningful effort at settlement, or at least at limiting the issues, might not have been made in this case, and remind the bar of its obligation to participate in the CAMP process, where applicable, seriously and in good faith. The judgment of the district court is affirmed. 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_usc1sect

51

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 45. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". DARDEN v. NASHVILLE, C. & ST. L. RY. CO. No. 6412. Circuit. Court of Appeals, Sixth Circuit. June 29, 1934. W. K. Sullivan, of Cleveland, Ohio, and C. C. Grassham, of Paducah, Ky. (Charles C. Grassham, of Paducah, Ky., Newcomb, Newcomb & Nord, of Cleveland, Ohio; on the brief), for appellant. G. T. Fitzhugh, of Memphis, Tenn. (Fitzgerald Hall, of Nashville, Tenn.,’ Nunn & Waller, of Paducah, Ky., and Fitzhugh, Murrah & Fitzhugh, of Memphis, Tenn.,. on the brief), for appellee. Before HICKS and SIMONS, Circuit Judges, and WEST, District Judge. HICKS, Circuit Judge. Action by Hobart M. Darden, appellant, under the Federal Employers’ Liability Act (title 45-, U. S. Code, e. 2, §§ 51-5-9- [45 US CA §§ '51-59']), against Nashville, Chattanooga & St. Louis Railway Company to recover damages for personal injuries. The question is whether the court erred in granting appellee’s motion for a directed verdict. The accident occurred in what is known as the Sixth street yard and engine terminal of appellee at Paducah, Ky., at about 10 :30 on the morning of April 16, 1930. In this yard, which is located between Fifth and Eighth streets, there are, in addition to the main line, seventeen switch tracks. Among these are the “old team track” and the “new team track,” hereinafter called old track and new track, which are principally used for setting out ears loaded with merchandise to he delivered to consignees. They extend from Fifth street westwardly curving gradually toward the so-uth, and, after passing immediately south of a sandhouse, begin to converge until they intersect opposite the west end of a cinder pit which is under the second track north of the new track. Between the cinder pit and the new track is a stub track, the east end of which is about ten feet west of the sandhouse. Upon the stub track is a traveling crane to which is attached a dipper or clamshell. For ten years before the accident it had been the almost daily practice for switching crews to place a ear on the new track to be loaded with cinders dug out of the pit by the craneman with the dipper, which when full was swung over by the crane and emptied into the cinder ear. For this purpose it was necessary for the switching crews to place the cinder ear at a point where it blocked the old track. When the loading was finished, the craneman, in an attempt to clear the old track, would place the dipper against the west end of the cinder ear and shove it eastwardly, but, owing to- varying conditions, such as the weight of the ear, the degree of force used, the state of the weather, and the nature o-f the oil in the journals, the cinder car would not always clear the old track before it stopped. This method of shoving the cinder ear, practiced daily, was a matter of common knowledge among the crews. They, as well as appellant, understood that a car shoved eastwardly and stopping before it sufficiently cleared the old track would be dangerous to employees riding upon the north side of a car moving thereon. For this reason it was the practice and duty of the switching erew, under the direction of its foreman, to look out for the cinder ear, and, if it did not safely clear the old track, to shove it into the clear with the engine. Appellee had a rule in substance to this effect, the relevant portions of which are printed in the margin. On the day of the accident a einder ear had been loaded and shoved eastwardly upon the new track by the crane until its west end was about eight or ten feet west of the west end of the sandhouse, with a clearance between it and cars passing upon the new track of only fourteen to seventeen inches, a distance insufficient to clear a man riding on the north side of a car on the old track unless he was standing straight and directly against the car. Upon that date, appellant, engine foreman of a switching crew) consisting of an engineer, fireman, and two switchmen, was at work in the yard. As a switchman and later as a foreman he had had eight or. nino years’ experience there. The crew was of course subject to his direction, and its duties were to switch cars in the yard upon orders received by appellant from the yard office. Shortly before the accident, he went to the office for orders while the crew took the engine west on the main line to the switch leading to the old track. ' It then backed the engine east along the old track, past the sandhouse and across Sixth street, where it was coupled to a cut of six or seven cars. As the train started west again on the old track and toward the place of the accident, appellant hoarded a box car next to the engine and stood in the stirrup on the north side of the ear at its eastern end and hung with his elbow upon the grabiron. While riding in this position, facing the ear, reading his orders and not looking in the direction in which he was going, and with the train running about six or eight miles an hour, the right side of his head struck the projecting southwest comer of the cinder car on the new track and he was knocked under the train and seriously injured. It is appellant’s contention that appellee furnished him an unsafe place to work, in that it left the cinder car too near the old track. We think that the rule requiring the master to furnish a safe place has no application. Appellant was fully acquainted with the method of handling the cinder car, and he could not assume that it would always clear, for it frequently did not. The probability that the cinder car would stop too near the old track was generally known, and for this very reason appellant was charged, not only by the rule and custom, but by positive orders, with the safety of the situation. He testified as follows: “A. I never saw it, unless it was in the clear. “Q. 243. Haven’t you gone in there, yourself, and moved it closer down there for loading; anyway you knew it was your duty for the protection of the property, the protection of yourself and your men, it was your duty to ascertain whether the ears were in the clear, or not? A. Never found them out of the clear. The rules say, ‘Keep them, in the clear’ and we would do it. “Q. 244. I will ask you if that same question was asked you before and if you didn’t answer you did know it was your duty under the rules to ascertain whether cars were in the clear and you did know you had to put them in the clear if they were not? A. The rule was to put them in the clear and we do. “Q. 245. You understood the rule applied to all switchmen, and especially foremen, to ascertain whether in the clear or not, and if not, to put thorn in the clear? A. Yes. “Q. 246. I asked you just now, if you, yourself, as switchman, prior to your becoming engine foreman, if you hadn’t shoved it in the clear? A. I have shoved it back here where it would clear a man.” When a servant is charged by the terms of his employment with the duty of keeping his working place safe or of making a dangerous working place secure, there is no basis for liability against the master, for the rule requiring him to furnish a reasonably safe place is not operative. The master may not justly be charged with failure to perform a duty which the servant has expressly or impliedly assumed. The risk arising from such a situation must be classified among those ordinarily incident to the employment. See Narramore v. Cleveland, C., C. & St. L. Ry. Co., 96 F. 298, 301, 48 L. R. A. 68 (C. C. A. 6); Chesapeake & O. R. Co. v. Hennessey, 96 F. 713, 717 (C. C. A. 6); Dasher v. Hocking Mining Co., 212 F. 628, 632 (C. C. A. 6); American Bridge Co. v. Seeds, 144 F. 605, 613, 11 L. R. A. (N. S.) 1041 (C. C. A. 8); Finalyson v. Utica Mining & Milling Co., 67 F. 507, 510 (C. C. A. 8); Atchison, T. & S. F. By. Co. v. Wyer, 8 F.(2d) 30, 32 (C. C. A. 8). The judgment of the District Court is affirmed. “There should be sufficient clearance between cars left on side tracks, and tracks adjoining, to prevent injury to persons who may be on the sides of cars.” 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 45? Answer with a number. Answer:

songer_circuit

E

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. RADIO WHKW, INC., An Alabama Corporation, Plaintiff-Appellant, v. Ben YARBER, Defendant-Appellee. No. 87-4289. United States Court of Appeals, Fifth Circuit. March 11, 1988. Rehearing Denied April 7,1988. Hunter M. Gholson, Gholson, Hicks & Nichols, Columbus, Miss., for plaintiff-appellant. Wilbur O. Colom, Colom & Colom, Dennis Harmon, Donna S. Smith, Columbus, Miss., for defendant-appellee. Before KING and DAVIS, Circuit Judges, and FELDMAN , District Judge. District Judge of the Eastern District of Louisiana, sitting by designation. KING, Circuit Judge: Radio WHKW, Inc., an Alabama corporation, appeals the district court’s dismissal of its breach of contract claim against Ben Yarber, a Mississippi resident, for lack of subject matter jurisdiction. The district court concluded that Radio WHKW had “localized” its business activities in Mississippi, thereby engaging in intrastate commerce — but without first qualifying to do so under Mississippi laws which govern foreign corporations transacting business in the state. Therefore, the district court held, the radio station was barred from prosecuting a lawsuit in any Mississippi state or federal court under the state’s door-closing statute. Because our review of the record and relevant case law convinces us that the business activities of the radio station demonstrated a pattern of unitary interstate transactions, and not localized intrastate activity as found by the district court, we hold that the denial of access to Mississippi courts in this instance imposed an impermissible burden on interstate commerce under the commerce clause of the United States Constitution. We reverse and remand. I. The facts which underlie this case are uncontested and relatively straightforward. Appellant Radio WHKW, Inc. (“Radio WHKW”) is an Alabama corporation; its principal place of business also is Alabama. Appellee Ben Yarber (“Yarber”) is a Mis-sissipi resident. Radio WHKW held by assignment a “management agreement” executed by Yarber which contained a non-competition clause. Upon Yarber’s resignation from his employment with Radio WHKW and his purchase of a radio station located within the primary coverage area of Radio WHKW — the territory purportedly covered by the noncompetition clause— Radio WHKW brought a diversity action against Yarber for breach of contract, seeking injunctive relief. Yarber raised various defenses, including the jurisdictional question before us. Yarber’s jurisdictional defense rests upon a Mississippi statute (“the door-closing statute”) that barred any foreign corporation from maintaining a lawsuit in any Mississippi court unless the corporation obtained a certificate of authority prior to transacting business in the state. Despite its substantial business activity in Mississippi, Radio WHKW did not obtain a certificate of authority to do business prior to transacting business in the state. Hence, Yarber argued, Radio WHKW did not qualify to sue in Mississippi state or federal courts because of the door-closing statute. However, Radio WHKW claimed that, under the commerce clause, it need not comply with the certification requirement because the interstate character of its business shielded it from the reach of Mississippi’s door-closing statute. Following a hearing on the issue, the district court made the following factual findings regarding the interstate character of Radio WHKW’s business. Radio WHKW’s principal place of business was Kennedy, Alabama — where its corporate offices and transmitter were located, and where a substantial part of production and broadcasting and all administrative, record-keeping, billing, payment and management activities occurred. However, Radio WHKW derived its income from the sale of “air time” to advertisers, many of which were Mississippi businesses. In fact, at-hough two-thirds of the station’s advertisers were from Alabama and states other than Mississippi, Mississippi advertisers accounted for more than one-half of its advertising revenues. Contracts for air' time were executed by advertisers at their places of business, were reviewed and approved as to form by sales personnel, and were subject to final acceptance at the corporate offices in Kennedy, Alabama. These factual findings by the district court are uncontested on appeal. Having concluded that Radio WHKW’s business “ha[d] a definite interstate flavor” which brought its activities within the purview of the commerce clause, the district court then determined that Radio WHKW had “localized” its business activities within Mississippi — thereby exceeding the protective arm of the commerce clause and subjecting itself to the state’s door-closing statute. The district court’s determination rested upon three additional factual findings: First, the court noted that Radio WHKW regularly conducted remote broadcasts of a promotional nature from Columbus, Mississippi locations. Second, Radio WHKW maintained a sales office in Columbus, Mississippi, out of which its largest sales staff operated; all daily sales meetings and most monthly meetings were conducted at that office. Third, the radio station purchased supplies and gasoline, and leased automobiles from Mississippi merchants for its personnel operating in Mississippi, and it entered into contractual arrangements with Mississippi residents such as Yarber. These factual findings by the district court also are uncontested. Having determined from the above factors that Radio WHKW had localized its intrastate business activities, the district court ruled that the radio station could not sue in Mississippi courts because it failed to qualify under the door-closing statute. Further, although Radio WHKW did obtain a certificate of authority just prior to filing suit, the district court held that such action could not cure Radio WHKW’s earlier default because the court must look to the radio station’s qualification to sue at the time the cause of action arose. Since Radio WHKW had not qualified to sue at the time that Yarber initially began his competitive activities, which the district court determined was the time at which the cause of action arose, the court dismissed Radio WHKW’s suit. II. On appeal, Radio WHKW challenges the district court’s determination that Radio WHKW had “localized” its otherwise interstate business by its activities within the state of Mississippi, and that it thereby had forfeited its constitutional immunity from the requirement that a foreign corporation transacting business in interstate commerce qualify to do business within the state. Yarber responds that the district court’s finding is not clearly erroneous and, therefore, must be affirmed. As a preliminary matter, we reject Yarber’s endorsement of the “clearly erroneous” test as the appropriate standard of review for this case. Federal Rule of Civil Procedure 52(a) prescribes the “clearly erroneous” standard for findings of fact. “Localization,” however, is a legal conclusion which merely rests upon subsidiary, historical facts. The subsidiary facts relevant to a determination of “localization” are undisputed in this case; hence, we have no occasion to apply the “clearly erroneous” test. As a conclusion of law, “localization” is freely reviewable by this court. United States v. Grayson County State Bank, 656 F.2d 1070, 1075 (5th Cir. Unit A 1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1276, 71 L.Ed.2d 460 (1982); see, e.g., Brock v. Mr. W Fireworks, Inc., 814 F.2d 1042, 1045 (5th Cir.), cert. denied, — U.S. -, 108 S.Ct. 286, 98 L.Ed.2d 246 (1987); Horn v. C.L. Osborn Contracting Co., 591 F.2d 318, 320 (5th Cir.1979). Imbued with this plenary power of review, we turn our attention to the issue. In evaluating state regulation of foreign corporations, we follow the general rule that, “where a foreign corporation has established a continuing presence in a state for the purpose of ‘doing business’ within that state, it is fair that [the foreign corporation] be required to comply with qualification statutes.” Diversacon Indus. v. National Bank of Commerce, 629 F.2d 1030, 1034 (5th Cir.1980). However, the power of a state to impose qualification requirements on foreign corporations is not unfettered; the commerce clause to the United States Constitution delimits state authority to regulate the activities of foreign corporations. In Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239 (1921), the Supreme Court explained that “[a] corporation of one State may go into another ... for all the legitimate purposes of [interstate] commerce; and any statute of the latter State which obstructs or lays a burden on the exercise of this privilege is void under the commerce clause.” Id. at 291, 42 S.Ct. at 109. Thus, where the business of the foreign corporation is interstate in nature, a state may not burden such business with state qualification requirements unless the business of the corporation includes a distinct and separable intrastate focus, Eli Lilly & Co. v. Sav-On-Drugs, 366 U.S. 276, 279-83, 81 S.Ct. 1316, 1318-20, 6 L.Ed.2d 288 (1961), or the corporation has “localized” its business within the state, Union Brokerage v. Jensen, 322 U.S. 202, 212, 64 S.Ct. 967, 973, 88 L.Ed. 1227 (1944). Further, as we expressed in Diversacon, for purposes of commerce clause analysis, interstate commerce includes “any activity of an intrastate nature which [is] an integral part of an overall interstate pattern or transaction.” 629 F.2d at 1033. The crux of the issue in the instant case is whether the specific intrastate business activities upon which the district court anchored its decision reflect either a distinct and separable intrastate focus, as in Eli Lilly, or had become localized to such a degree that they were separable from the interstate character of the business, as in Union Brokerage. In deciding that Radio WHKW had localized its business activities, the court below looked to Radio WHKW’s remote broadcasts from Columbus, Mississippi, to the substantial sales force which Radio WHKW maintained in Columbus, Mississippi, and to the relationships which Radio WHKW developed with Mississippi merchants and residents as a business consumer while operating its sales force in the area. We examine each of these factors under the Eli Lilly and the Union Brokerage approaches. Remote broadcasting from the Columbus, Mississippi area entailed the transmission of live, promotional messages from the premises of advertisers in Columbus, Mississippi to the Kennedy, Alabama station — from which the messages were rebroadcast via the FCC licensed interstate transmitter to listeners in Alabama and Mississippi. Apart from a mode of delivery peculiar to radio broadcasting, we find little to distinguish the sale and delivery of radio “air time” via remote transmission from more conventional methods of interstate sale and delivery. The transaction is the same: Radio WHKW is selling air time across state boundaries to secure the revenues on which it operates. This case does not present a two-tiered transaction, as occurred in Eli Lilly, where the foreign drug manufacturing company not only sold its merchandise interstate to wholesalers, but also participated directly in intrastate sales transactions between wholesalers and retailers. 366 U.S. at 280, 81 S.Ct. at 1319. To the contrary, we can identify only a single commercial transaction relating to the remote broadcasts — and that is the sale of air time to an advertiser. Neither does Union Brokerage persuade us that Radio WHKW’s remote broadcasting is a “localized” activity. We have serious doubts whether Union Brokerage is relevant at all in the context of the facts before us. The brokerage services which were at the foundation of that case affected interstate commerce only tangentially. First, customs brokers facilitated compliance with federal customs requirements at ports of entry to the United States and so were necessary to commerce, but had no connection with the underlying business transactions which constituted the commerce itself. Second, the customhouse brokerage services in Union Brokerage were offered, performed and completed entirely within each of two separate states at two separate ports of entry. However, unlike the brokerage services in Union Brokerage, the remote radio transmissions here directly involved a delivery of services across state lines. Further, these services were essential to and inseparable from the underlying interstate sales transactions themselves. We note that the Union Brokerage Court specifically disclaimed any intent to reach “a foreign corporation merely coming into [the state] to contribute to or conclude a unitary interstate transaction.” 322 U.S. at 211, 64 S.Ct. at 973. Later, in Allenburg Cotton Co. v. Pittman, 419 U.S. 20, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974), the Supreme Court reiterated that Union Brokerage does not control cases in which “a foreign corporation enters the State to contribute to or conclude a unitary interstate transaction.” Id. at 33-34, 95 S.Ct. at 267 (citing Union Brokerage ). Hence, we question Union Brokerage’s applicability to the facts before us. The Supreme Court’s decision in Allen-burg Cotton also militates against a finding of “localization.” The sale of cotton in Allenburg Cotton involved temporary intrastate storage and classification of the cotton prior to shipping with the result that Allenburg maintained a “perpetual” inventory in its Mississippi warehouse because of the sheer volume of its interstate sales transactions. However, this “perpetual” temporary inventory did not destroy the corporation’s exemption from qualification because the Court viewed the intrastate storage, sorting and classification “as a prerequisite to its shipment in interstate commerce.” 419 U.S. at 33, 95 S.Ct. at 267. Similarly, the sale of air time in the instant case required the temporary services of a remote transmitter and support personnel to convey each advertiser’s desired message from Columbus, Mississippi to the radio tower in Kennedy, Alabama. Both cases reveal a pattern of unitary interstate transactions. The intrastate activity — remote broadcasting — is inseparable from the interstate transaction and does not constitute localization. Finally, when construing the door-closing statute in another case, Fred Hale Machinery, Inc. v. Laurel Hill Lumber Co., 483 F.2d 58, 60 (5th Cir.1973), this court recognized that services integral to an interstate sale do not constitute intrastate activity for which a foreign corporation must forfeit the protection of the commerce clause. The interstate transaction in Fred Hale was the manufacture and sale of sawmill components by a Georgia company to a Mississippi sawmill. Although Fred Hale employees did not assist in transporting the components to the sawmill, they assembled and supervised installation of the system at the sawmill following their transport. Despite this substantial local activity within Mississippi, we recognized the unitary nature of the real transaction — an interstate sale of machinery. Later, in Diversacon, we held that although sub-contract work on an interstate highway was to be performed wholly within the state of Louisiana, the single business transaction to which all of Diversacon’s activities related clearly was the construction of the interstate highway. 629 F.2d at 1032, 1034. We conclude that neither Eli Lilly nor Union Brokerage support a finding of “localization” as to Radio WHKW’s remote broadcasting from Columbus, Mississippi localities. Further, both Allenburg Cotton and our analysis in Fred Hale and Diversa-con compel a determination that such broadcasting is inseparable from the underlying interstate sale of air time. Hence, by contributing to a unitary interstate transaction, Radio WHKW’s remote broadcasting activities fall within the governance — and hence the protections — of the commerce clause. We reach a similar conclusion regarding the remaining “localization” factors relied upon by the district court. Although Radio WHKW maintained a substantial sales force in Columbus, Mississippi, that factor alone is insufficient to establish either localization or a distinct and separable business activity within the state. The constitutional right to transact business in interstate commerce without obstruction from state regulation includes the right to search out those business opportunities. Eli Lilly, 276 U.S. at 279, 81 S.Ct. at 1318-19 (citing Robbins v. Shelby County Taxing Dist., 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694 (1887)). A foreign corporation should be free to maintain a sales operation promoting interstate sales within a state without fear that its rights will not be enforceable in the state. We note that the test in Eli Lilly was not the thirty-eight salespersons that the company employed within the state. Rather, the role of those employees in soliciting and participating in distinctly intrastate sales — sales between merchants and retailers — controlled the outcome. Allenburg Cotton, 419 U.S. at 32, 95 S.Ct. at 267 (explaining Eli Lilly). Likewise, Radio WHKW’s contractual relations with Mississippi merchants and citizens as a business consumer did not support the decision below. The record clearly indicates that all of Radio WHKW’s contacts with Mississippi businesses and citizens related to its sales operation. It would be incongruous to permit local sales personnel to search out interstate business opportunities, yet deny access to goods and services necessary to perform that function. Cf., e.g., Diversacon, 629 F.2d at 1032, 1034 (local sub-contracting of interstate highway project). To require that participants in interstate commerce refrain from purchasing supplies or services within a state or suffer the loss of their commerce clause protections itself imposes an impermissible burden on interstate commerce. A foreign corporation must enjoy the same access to the domestically-provided goods and services required to complete its interstate business as is enjoyed by domestic corporations. Id. Finally, we find Union Brokerage no more persuasive or relevant regarding sales personnel who are engaged in promoting a unitary interstate transaction than we found it in the context of remote transmissions which effectuate a unitary interstate transaction. As the Allenburg Court explained, Union Brokerage does not apply to an activity which is an integral part of an overall interstate pattern or transaction. 419 U.S. at 33-34, 95 S.Ct. at 267; see also Diversacon, 629 F.2d at 1033. III. Because Radio WHKW’s business activities within the state of Mississippi demonstrated a pattern of unitary interstate transactions rather than a localized or separable intrastate focus, the denial of access to Mississippi courts in this instance imposed an impermissible burden on interstate commerce. We REVERSE and REMAND. . The door-closing statute provided as follows: No foreign corporation transacting business in this state without a certificate of authority shall be permitted to maintain any action, suit or proceeding in any court of this state. Miss. Code Ann. § 79-3-247 (1972) (repealed 1987). A companion statute, which set forth exceptions to the door-closing statute, exempted any foreign corporation ‘‘[t]ransacting any business in interstate commerce" from the certification requirement. Miss. Code Ann. § 79-3-211 (1972) (repealed 1987). This exemption was intended at least to accommodate the commerce clause’s proscription of state action which would impermissibly burden interstate commerce. Diversacon Indus., Inc. v. National Bank of Commerce, 629 F.2d 1030, 1034 (5th Cir.1980). However, Radio WHKW bases its appeal on the commerce clause alone, and we need not review Mississippi case law to determine whether the protection afforded a foreign corporation under the companion statute is broader than or coextensive with that afforded by the commerce clause itself. . Radio WHKW makes the additional argument that Yarber's activities constitute a continuing breach of contract, and that the radio station therefore is entitled to maintain an action in Mississippi courts for Yarber's activities subsequent to Radio WHKW's procurement of the requisite certificate of authority. We do not reach this issue since our determination that Mississippi's door-closing statute will not bar Radio WHKW’s access to Mississippi courts is dispositive. . Additionally, the brokerage firm’s failure to comply with Minnesota’s Foreign Corporation Act in Union Brokerage was particularly egregious. Ninety percent of Union Brokerage’s business had been diverted to a Minnesota port of entry because the Canadian Pacific Railway had re-routed shipments from the brokerage firm’s original port of entry in North Dakota. Of course, we recognize that the Union Brokerage Court relied upon the self-contained or sev-erable nature of the brokerage firm’s business activities within Minnesota, rather than the relative volume of its business, in deciding the case. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:

songer_respond2_5_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 respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "bureaucracy in charge of general administration". Your task is to determine which specific state government agency best describes this litigant. John Daniel FERRELL, Plaintiff-Appellant, v. SELECTIVE SERVICE LOCAL BOARD NO. 38 OF WALNUT RIDGE, ARKANSAS, Col. Willard A. Hawkins, and Transfer Board of the New York City Headquarters, Selective Service System, Defendants-Appellees. No. 383, Docket 35502. United States Court of Appeals, Second Circuit. Argued Oct. 29, 1970. Decided Oct. 30, 1970. Michael N. Pollet, New York City (Marvin M. Karpatkin, Karpatkin, Ohrenstein & Karpatkin, New York City, of counsel), for plaintiff-appellant. Daniel H. Murphy, II, Asst. TJ. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., for the Southern District of New York, of counsel), for defendantsappellees. Before MOORE, FRIENDLY and ADAMS, Circuit Judges. Of the Third Circuit, sitting by designation. FRIENDLY, Circuit Judge: Plaintiff, who will attain the age of 26 on November 15, 1970, held student deferments until he completed law school in June, 1969. He was then reclassified I-A and was ordered to report for a preinduction physical examination on July 23. He did not appeal his reclassification but obtained postponements of his physical examination until January 30, 1970. Having passed this, he was ordered by his local draft board in Arkansas on May 20, 1970, to report for induction on June 9. On May 26 Ferrell, who had moved to New York City, applied to the board for conscientious objector classification, saying that as a result of thought during the last few days he had come to realize that participation in war or in noncombatant service would conflict with his deepest religious beliefs and training. The board mailed him SSS Form 150, which he filled out and returned. This recited long activity in Baptist church affairs and opposition to the Viet Nam war, said that his views with respect to conscientious objection theretofore “had not fully crystallized” but asserted that upon receiving the notice of induction his ideas “finally crystallized” and he realized he “really was a conscientious objector.” He submitted supporting letters from his wife and parents, which were attached to his affidavit in support for an injunction and one from a friend, which was not. The wife’s letter tracked the application but the parents’ letter, written from Arkansas, said that Ferrell’s objection to the draft “is not a new thing with him as he has told us many times that he did not want to kill people who were not attacking our homes.” The board granted him a 25 minute interview on July 21, with three members present. A summary shows that Ferrell responded in line with his Form 150 but that the board determined not to reopen the classification “feeling that his claim was not based on moral, religious, or ethical principles but rests instead on expediency. The expediency being to avoid the draft.” By letter dated July 22, 1970, the board’s executive secretary, who had attended the interview, advised Ferrell that the members had determined there was no change in his status resulting from circumstances over which he had no control and that his classification was not reopened. A month later Ferrell began this action for an injunction in the District Court for the Southern District of New York and obtained a temporary restraining order against his induction. The Government contested the court’s power to grant relief in light of § 10(b) (3) of the Selective Service Act, 50 U.S.C. App. § 460(b) (3). Alternatively it urged denial on the merits. Judge Mansfield, in a well-considered opinion, sustained the latter position but did not discuss the former, very likely because, as will later be seen, the two issues have some tendency to merge. Upon plaintiff’s filing a notice of appeal, the district court granted a stay of induction pending application here, and this court granted a further stay. Plaintiff has been notified of a new order requiring him to report for induction on October 29. The interpretation of § 10(b) (3) in light of applicable Supreme Court decisions has recently provoked a division of opinion within another panel of this court. Fein v. Selective Service System Local Board No. 7, 430 F.2d 376 (2 Cir., 1970). We need not traverse that territory again in this case, for two reasons. We are bound by the majority’s decision, and we do not believe any different result would be called for under Chief Judge Lumbard’s dissent. Ferrell argues that the local board’s action was “blatantly lawless,” see Oesterreich v. Selective Service Board, 393 U. S. 233, 238-239, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), because under Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970), the board was required to reopen since Ferrell had made a prima facie case. In the first place, this ignores that, as this court has pointed out in United States v. Jones, 433 F.2d 1292, 1293 n. 6 (2 Cir. 1970), the Supreme Court “was concerned there [in Mulloy] with reopenings prior to receipt of the induction notice.” Even if that should be wrong, as appellant claims —and in view of the care taken by the Court to make the limited character of its holding entirely clear, see 398 U.S. at 411 n. 1 and at 414-415 and n. 2, 90 S. Ct. 1766, we do not see how it can be — there would still remain the question whether the registrant had made a prima facie case. It would be open to fair debate whether Ferrell’s statements, largely unsupported by outside sources and seemingly contradicted with respect to late crystallization by his parents’ letter, would qualify even under that test. Finally even if the board had acted without full regard to the teachings of Mulloy, this would not be “blatantly lawless.” If any meaning is to be left to § 10(b) (3), it must cover determinations such as these. If we should be in error about this, we would affirm the denial of injunctive relief on the merits. We have little to add on this score to Judge Mansfield’s opinion and what we have already said. Ferrell made no such impressive showing of an approach toward conscientious objection which reflection after the notice of induction might have matured into a full fledged objection as in Capobianco v. Laird, 424 F.2d 1304 (2 Cir. 1970), and Paszel v. Laird, 426 F.2d 1169 (2 Cir. 1970). The thinness of his own statements, the lack of substantial corroboration, the seeming contradiction of recent crystallization in his parents’ letter, and his demeanor at the hearing, see United States v. Simmons, 213 F.2d 901, 904 (7 Cir. 1954), rev’d on other grounds, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955), constituted a sufficient basis in fact for a finding that he had not sustained the burden of showing that he had become a conscientious objector after receiving his notice of induction. Although the board could have expressed its views with greater precision, the summary and the secretary’s letter leave no doubt that was what it meant. We affirm the denial of a temporary injunction and vacate the stay of induction. The mandate shall issue forthwith. . United States ex rel. Brown v. Resor, 429 F.2d 1340 (10 Cir. 1970), is not to the contrary. The court recognized the more stringent standards for reopening after notice of induction under “the exacting language of the regulations” but faulted the board because it had merely noted “No change warranted” without explaining why. This also was the decision in Scott v. Volatile, 431 F.2d 1132 (3 Cir. 1970). . We thus have no occasion to consider the question which divided Judge Hays and Chief Judge Lumbard in Fein, and on which Judge Blumenfeld did not pass, namely, whether a bare allegation that more than $10,000 is in controversy meets the requirements of 28 U.S.O. § 1331 in cases of this sort. . Ferrell’s brief on appeal contends that minutes of the local board, not contained in the record transmitted to us, disclose that it did not vote upon his request for reopening as 32 C.F.R. § 1604.52a(d) requires. No such claim was made in the comidaint or moving affidavit or in Ferrell’s brief in the district court, where the Government would have had an opportunity to answer. Since the summary of Ferrell’s interview indicates that the three members present concurred in the decision, this would appear to be at worst an informality affecting no substantial rights. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "bureaucracy in charge of general administration". Which specific state government agency best describes this litigant? A. Personnel B. Other General Administration C. not ascertained Answer:

sc_authoritydecision

C

What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. ILLINOIS v. MICHIGAN No. 57, Orig. Decided October 24, 1972 Per Curiam. The State of Illinois moved to file its bill of complaint in this case on the theory that a “reciprocal treaty” between the States of Illinois and Michigan was violated by a decision of the Supreme Court of the State of Michigan which allowed recovery by two injured workmen against an Illinois re-insurance company. Federoff v. Ewing, 386 Mich. 474, 192 N. W. 2d 242 (1971). It claims that such an agreement arose when the two States enacted the Uniform Insurers Liquidation Act, which contains certain reciprocal features, and that the agreement has the dignity of an interstate compact. The State of Illinois was a party to the case decided by the Supreme Court of Michigan through the person of the Director of Insurance of the State of Illinois, who was the liquidator of the workmen's compensation insurer, Highway Insurance Co. It was the imposition of liability upon that company’s re-insurer which Illinois claims was inappropriate under the uniform act. Review of the Michigan decision should have been sought in that case by means of a petition for writ of certiorari. It is now too late for any such petition for certiorari to be filed. But original jurisdiction of the Court is not an alternative to the redress of grievances which could have been sought in the normal appellate process, if the remedy had been timely sought. The problem presented is essentially one between private litigants and, though the point now raised may not have been presented in the Michigan litigation, these controversies áre recurring and essentially not state concerns. While the complaint on its face is within our original, as well as our exclusive, jurisdiction, it seems apparent from the moving papers and the response that Illinois, though nominally a party, is here “in the vindication of the grievances of particular individuals.” Louisiana v. Texas, 176 U. S. 1, 16. The motions to file briefs amici curiae by Jack Federoff, William F. Ewing, dba William Ewing Roofing Co., and John H. Shannon are granted. The motion of the State of Illinois for leave to file a bill of complaint is denied. See generally Frankfurter & Landis, The Compact Clause of the Constitution — a Study in Interstate Adjustments, 34 Yale L. J. 685 (1925); Engdahl, Characterization of Interstate Arrangements: When is a Compact not a Compact?, 64 Mich. L. Rev. 63 (1965); Note, At the Intersection of Jurisdiction and Choice of Law, 59 Calif. L. Rev. 1514 (1971). Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:

songer_usc2sect

211

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 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. CRYSTAL LAKE CRUSHED STONE COMPANY, Defendant-Appellee. W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. Clarence R. WOLF and Harold Wolf, Partners, d/b/a Wolf Trucking Service, Defendant-Appellee. Nos. 14232, 14233. United States Court of Appeals Seventh Circuit. Feb. 4, 1964. Charles Donahue, Sol., Dept, of Labor, Washington, D. C., Herman Grant, Regional Atty., Chicago, 111., Bessie Mar-golin, Assoc. Sol., Robert E. Nagle, Beate Bloch, Attys, U. S. Dept, of Labor, Washington, D. C., for appellant. Anthony M. Werner, Sheboygan, Wis., Miller, Hayes & Werner, Sheboygan, Wis., of counsel, for appellee. Before CASTLE, KILEY and MAJOR, Circuit Judges. CASTLE, Circuit Judge. The Secretary of Labor brought these two actions in the District Court for injunctive relief under Section 17 of the Fair Labor Standards Act, as amended, 29 U.S.C.A. § 201 et seq. In No. 14232 Crystal Lake Crushed Stone Company is charged with violating the Act’s overtime provisions with respect to employees engaged in the quarrying, processing and handling of sand and gravel on Crystal’s premises. In No. 14233 Wolf Trucking Service is charged with violating both the overtime provisions and record-keeping requirements with respect to employees engaged in the handling and transportation of sand and gravel. The facts are stipulated. The District Court, after making and entering findings of fact and conclusions of law, denied the relief sought and dismissed the complaints. The Secretary prosecuted an appeal in each of the cases. The record discloses that Crystal’s gravel pit is located at Elkhart Lake, Sheboygan County, Wisconsin. Through washing and crushing processes it produces sand, stone of two sizes, gravel, and chips or pea gravel from the “pit-run” it excavates or quarries. The chips are a by-product. Crystal employs six persons in its production, processing and handling activities. During the years 1958, 1959, and 1960, Crystal sold 597,-066 tons of these materials from which it grossed $519,740. During this three year period it sold 17,403 tons of chips to the Sheboygan County, State Highway Commission for $13,112. The chips were used in the repair and maintenance of roads and highways. Two major customers of Crystal, Van Der Vaart Brick and Building Supply Company and J.P.R. Company, who manufacture and sell ready-mix concrete, concrete pipe and concrete blocks, purchased all of their sand and stone requirements from Crystal. Each of these firms operates a ready-mix concrete plant and delivers its ready-mix concrete to contractors and other purchasers by pouring it at the job-site from its own vehicles, specially designed trucks equipped with revolving cylinders to hold and transport the freshly mixed concrete. During the three year period referred to these two customers purchased a total of 349,193 tons of sand and stone from Crystal. Except after March, 1959, when J.P.R. commenced to haul about one-third of its purchases from Crystal’s premises in its own trucks, Wolf transported all of this tonnage from Crystal’s premises to the plant of either Van Der Vaart or J.P.R. Crystal billed these customers for the transportation charge and paid it to Wolf. Wolf employs between 5 and 7 persons, mostly truck drivers engaged in such transportation, and received $258,-552 for such services. All other customers of Crystal, including the Highway Commission, transported their purchases from Crystal’s premises in the purchaser’s own vehicles. In addition to its above trucking activities, Wolf furnished employees and supplied materials in connection with the construction and reconstruction of streets, parking lots, and sanitary sewers, house excavations, and farm driveways. This type of work was normally performed by Clarence R. Wolf and one or two other employees, who operated a caterpillar tractor, a back hoe, and an air hammer. The materials for this type of work were hauled to the job-site by one, two, or three of the truck drivers, depending on the nature and size of the project. The type of work performed by Wolf on streets, roads and highways included the spreading of gravel on road surfaces. About 58 per cent of Crystal’s total sales were to Van Der Vaart and J.P.R., and approximately 16 per cent of the tonnage so represented was used in the manufacture of ready-mix concrete and concrete culvert pipe sold and delivered by Van Der Vaart or J.P.R. to purchasers using it in the repair of highways, roads and city streets. The District Court recognized that the public streets, roads and highways involved are instrumentalities of interstate commerce but concluded that Crystal’s “off-the-road” employees were producing “essentially ‘local materials’ ” which “lost their identity as stone products processed by Crystal” before being “poured over into the stream of interstate commerce when Van Der Vaart and J.P.R. sold them as ingredients of ready-mix concrete and precast concrete products.” The court noted that “the ultimate purchasers for use of the ready-mix concrete * * * were too far removed” from Crystal; that “Crystal had neither knowledge nor control of the ultimate use to which the stone products it furnished J.P.R. and Van Der Vaart would be put”; that neither of these purchasers was obligated to buy all of its sand and stone requirements from Crystal (although in fact they did so), and that “for all Crystal knew” they might have sold their whole output for “uses other than the maintenance of instrumentalities of interstate commerce.” Crystal’s sales of gravel chips to the Highway Commission, the court concluded, “were sporadic and occasional and could not be relied on by' Crystal” and that such sales of a byproduct did not bring Crystal within the coverage of the Act. With respect to Wolf’s truck drivers, the court concluded that the trucking activities from Crystal’s premises to the plants of Van Der Vaart and J.P.R. were “incidental to Crystal’s operation” and likewise were “well removed from the stream of interstate commercial activity.” With respect to the deliveries made by Wolf’s truck drivers to job-sites at which Wolf’s other employees were working the court concluded that it did not appear that the deliveries of materials were “specifically” to the jobs involving maintenance of instrumentalities of interstate commerce. In our considered judgment the conclusion of the District Court that Crystal’s direct sales of chips did not bring those of its employees engaged in the excavation and processing of the “pit-run” and handling of the resulting products within the coverage of the Act is clearly erroneous. We find no support in the record for a finding or conclusion that such sales were sporadic or isolated occasional exceptions. They occurred regularly in each of the years involved during several months and represented substantial quantities. That the chips were by-products is not of import. Mitchell v. Jaffe, 5 Cir., 261 F.2d 883; Tilbury v. Mitchell, 5 Cir., 220 F.2d 757 (affirming and adopting the reasoning of the District Court in 123 F.Supp. 109); Walling v. Peoples Packing Co., 10 Cir., 132 F.2d 236. That these purchases accounted for only approximately 3 per cent of Crystal’s tonnage and about 2.5 per cent of its receipts is likewise of no material significance. Congress “has made no distinction as to the volume or amount of shipments in the commerce or of production for commerce by any particular shipper or producer. It recognized that in present day industry, competition by a small part may affect the whole and that the total effect of the competition of many small producers may be great”. United States v. Darby, 312 U.S. 100, 123, 61 S.Ct. 451, 461, 85 L.Ed. 609. The rationale of Darby was reiterated in Mabee v. White Plains Publishing Co., 327 U.S. 178, 181-182, 66 S.Ct. 511, 90 L.Ed. 607, and applied in Mitchell v. Pilgrim Holiness Church Corp., 7 Cir., 210 F.2d 879, 882. The fact that Crystal’s activity was entirely “off-the-road” production of materials does not serve to insulate it from coverage. Cf. Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745; Thomas v. Hempt Bros., 345 U.S. 19, 73 S.Ct. 568, 97 L.Ed. 751; Mitchell v. Hooper Equipment Company, 5 Cir., 279 F.2d 893. And as to these sales Crystal was chargeable with knowledge that the chips were to be used in the repair and maintenance of instrumentalities of interstate commerce. It was bound to know the status of the Highway Commission and its intended use of the chips in road work. Mitchell v. Raines, 5 Cir., 238 F.2d 186. Cf. Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. 83; D. A. Schulte, Inc. v. Gangi, 328 U.S. 108, 66 S.Ct. 925, 90 L.Ed. 1114. Turning to consideration of the District Court’s findings and conclusions with respect to Wolf we likewise find no support for the court’s denial of injunctive relief. While it accepts Wolf’s concession that those of its employees— other than its truck drivers — those who engage in activities such as road maintenance and repair, are within the coverage of the Act it rejects coverage for the truck drivers on the basis that such a conclusion would involve an assumption it finds not warranted — that there were deliveries of materials to Wolf’s road maintenance and repair job-sites by the truck drivers. The court, in referring to the stipulated deliveries, states: “It does not appear that these deliveries were specifically to jobs involving maintenance of instrumentalities of interstate commerce”. In our opinion a fair appraisal of the stipulation — reading the language in its context — not only fails to justify the effect the court ascribes to it but compels a contrary inference. The pertinent portion of the stipulation is as follows: “In addition to the trucking activities [hauling from Crystal’s premises to Van Der Vaart and J.P.R.], Wolf furnished employees and supplied materials in connection with the construction and reconstruction of streets, parking lots, and sanitary sewers, house excavations, and farm driveways. This type of work was normally performed by Clarence R. Wolf, defendant, and one or two other persons employed by Wolf. These persons operated a caterpillar tractor, a back hoe, and an air hammer. The materials for this type of work were hauled to the job site by one, two, or three truck drivers, depending on the nature and size of the project. (1) The type of work performed by Wolf on streets, roads and highways consisted of excavating and digging out of road beds, spreading gravel on road surfaces, and other types of general hauling and excavating work that could be performed from behind the wheel of a truck or tractor. * * *” It is expressly stipulated that the type of street, road, and highway work involved included the spreading of gravel. This would normally be material hauled to the job-site and it is stipulated that Wolf supplied materials for such road work. Moreover, general hauling done by truck in connection with road work would normally include materials for the work. Considering the language of the stipulation in the light of its context we' see no basis for deleting the road and street work from the “type of work” for which materials were hauled by the truck drivers — one, two, or three depending on the nature and size of the project — merely because road and street work is not “specifically” singled out. None of the work categories are so singled out with reference to the material hauling activity of the truck drivers. And the road and street work is included in the activities referred to as “this type of work” nor-' mally performed by Clarence R. Wolf’ and one or two others and with respect to which materials were hauled to the job-site by the truck drivers. In view of the conclusions we have reached on the phases of the appeals which we have discussed we find it unnecessary to consider the relevance of' the sales and transportation of the sand' and stone used by Van Der Vaart and J.P.R. to the basic issue presented in' either appeal. The act applies to the particular employees and truck drivers involved, in any event. And it would serve no useful purpose to extend this opinion to consider the impact of the additional sales of Crystal and trucking activity of Wolf on the issue we have already- re-r solved on the basis of the factors, we have considered. The judgment order of the District.Court in each of the appeals is reversed and each of the causes is remanded with directions that the District Court enter-a decree in each granting appropriate in-junctive relief in accordance with the-views herein expressed. Reversed and remanded with directions. . The actions were consolidated by this Court for purposes of appeal. . Clarence R. Wolf and Harold Wolf, partners, doing business as Wolf Trucking Service, referred to herein as Wolf. . The pertinent provisions of the Act provide: 29 U.S.C.A. § 207(a) “(1) Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed; ij; i¡; 55 29 U.S.C.A. § 211(c) “Every employer subject to any provision of this chapter or of any order issued under this chapter shall make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other' conditions and practices of employment maintained by him, and shall preserve such records for such periods of time, and shall make such reports therefrom to the Administrator as he shall prescribe by regulation or order as necessary or appropriate for the enforcement of the provisions of this chapter or the regulations or orders thereunder.” . Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656; Goldberg v. P. & L. Equipment Co., 5 Cir., 311 F.2d 88; Austford v. Goldberg, 8 Cir., 292 F.2d 234; Mitchell v. Brown, 8 Cir., 224 F.2d 359 and Emulsified Asphalt Products Co. v. Mitchell, 6 Cir., 222 F.2d 913. 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 29? Answer with a number. Answer:

songer_fedlaw

D

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. COMMISSIONER OF INTERNAL REVENUE v. MOLINE PROPERTIES, Inc. No. 10279. Circuit Court of Appeals, Fifth Circuit. Nov. 7, 1942. Rehearing Denied Dee. 11, 1942. Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key and Benjamin M. Brodsky, Sp. Assts. to Atty. Gen., J. P. Wenchel, Chief Counsel, Bureau of Internal Revenue, and Charles E. Lowery, Sp. Atty., Bureau of Internal Revenue, all of Washington, D. C., for petitioner. Douglas D. Felix, of Miami, Fla., for respondent. Before SIBLEY, HOLMES, and Mc-CORD, Circuit Judges. McCORD, Circuit Judge. The petition involves income and excess-profits taxes for the years 1935 and 1936, and a delinquency penalty for the year 1936. The facts are stated in detail by the Board of Tax Appeals in its reported opinion, Moline Properties, Inc., v. Commissioner of Internal Revenue, 45 B.T.A. 647. The respondent, Moline Properties, Inc., was organized in 1928, and at all times Uly O. Thompson has been its president and sole stockholder, with the exception of holders of qualifying shares. The corporation was organized at the suggestion of Thompson’s creditors as a means of protecting investments and saving his equity in certain parcels of' real estate located in Florida; the mortgagee having agreed to advance further funds on condition that the corporation should be organized. The property was conveyed by Thompson to the corporation, and the stock issued to him was pledged with the mortgagee and placed in a voting trust. On July 29, 1933, the corporation satisfied the two outstanding mortgages with funds secured from a new mortgage loan. Control of the corporation was returned to Thompson in 1933. Moline Properties, Inc., did not keep books of account or maintain a bank account. It owned no assets other than the real estate. In 1934 it leased a portion of its properties for use as a parking lot and received $1,000 as rental. Thompson owned other extensive real property holdings in Miami, Florida, title to all of which was in his name individually. The real property held by Moline Properties, Inc., was sold in three separate parcels, one each in the years 1934, 1935, and 1936. The corporation transacted no further business after sale of the last parcel of property in 1936. The Board of Tax Appeals sustained the taxpayer’s contentions and held that the corporation functioned merely as an agent for Thompson; that the corporate existence must be disregarded in taxing the gains from the sales of the property of the corporation; and that, treating Moline Properties, Inc., as a corporation without substance, Thompson was entitled to report the proceeds from the sales as his individual income. By timely petition for review the Commissioner of Internal Revenue questions the correctness of the Board’s decision. The Board of Tax Appeals erred in its decision. Ordinarily a corporation and its stockholders are for purposes of taxation held to be separate entities, and the rule is not changed by the mere fact that one person owns all or substantially all of the stock of the corporation. Planters’ Cotton Oil Co. v. Hopkins, 5 Cir., 53 F.2d 825; Watson v. Commissioner, 2 Cir., 124 F.2d 437. In tax matters “the tendency is not to ignore the corporate entity unless it be used to defraud the law, but rather, when natural persons are using corporate forms to do their business, they and their corporations are held to the literal consequences.” Bancker v. Commissioner, 5 Cir., 76 F.2d 1, 2. In the case at bar Thompson, for reasons satisfactory to himself and to his creditors, elected to employ a corporation in the handling of certain parcels of his real estate. Having chosen the corporate form to conduct these affairs, both Thompson and his corporation must accept the tax disadvantages of the plan; and they may not now, in order to escape corporate taxes, be heard to disavow the corporate existence and allege that the respondent was merely a “dummy” corporation. Higgins v. Smith, 308 U.S. 473, 477, 60 S.Ct. 355, 84 L.Ed. 406; Interstate Transit Lines v. Commissioner, 8 Cir., 130 F.2d 136. The gains from the sales of the properties of the corporation were taxable to the respondent. Accordingly, the petition is granted, and the decision of the Board of Tax Appeals is reversed with directions to enter decision for the Commissioner. Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_casetyp1_7-2

B

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". James Earl BYRD, Appellant, v. BLUE RIDGE RURAL ELECTRICAL COOPERATIVE, Inc., Appellee. No. 6789. United States Court of Appeals Fourth Circuit. Argued June 9, 1954. Decided Sept. 2, 1954. Henry Hammer, Columbia, S. C. (Chandler & Chandler, Greenville, S. C., and Henry H. Edens, Columbia, S. C., on brief), for appellant. Wesley M. Walker and Ray R. Williams, Greenville, S. C. (J. D. Todd, Jr., Leatherwood, Walker, Todd & Mann and Williams & Henry, Greenville, S. C., on brief), for appellee. Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. SOPER, Circuit Judge. James Earl Byrd sued Blue Ridge Rural Electrical Cooperative, Inc., to recover damages for the loss of both arms and other injuries which he alleged were caused by the negligence of the employees of the defendant in supplying and distributing electric power in certain counties in South Carolina. On motion of the defendant the suit was dismissed by the District Judge D.C., 118 F.Supp. 868 on the ground that the defendant is not subject to liability for tort under the laws of South Carolina. This appeal followed. The Judge pointed out that the defendant is a non-profit cooperative organized under the Rural Electric Cooperative Act, set out in Chapter XV of the South Carolina Code of 1952, for the purpose of supplying electric energy and promoting and extending the use thereof in rural areas. He said that a cooperative is in a special and favored position under the South Carolina statutes since it is exempt from control by the Public Service Commission, § 12-1005; and from the provisions of the South Carolina Securities Act, § 12-1006; and from the payment of excise and income taxes except the payment of $10 annually to the Secretary of State for each one hundred persons to whom it furnishes electricity, § 12-1013. He held that the defendant Cooperative serves a laudable public purpose and that it is therefore exempt from liability for tort for the reasons given by the Supreme Court of South Carolina for the exemption of public charities from such liability in Vermillion v. Woman’s College of Due West, 104 S.C. 197, 88 S.E. 649, as quoted with approval in Caughman v. Columbia Y. M. C. A., 212 S.C. 337, 344, 47 S.E.2d 788, 790, where the court said: “ ‘The exemption of public charities from liability in actions for damages for tort rests not upon the relation of the injured person to the charity, but upon grounds of public policy, which forbid the crippling or destruction of charities which are established for the benefit of the whole public to compensate one or more individual members of the public for injuries inflicted by the negligence of the corporation itself, or of its superior officers or agents, or of its servants or employees. The principle is that, in organized society, the rights of the individual must, in some instances, be subordinated to the public good. It is better for the individual to suffer injury without compensation than for the public to be deprived of the benefit of the charity. The law has always favored and fostered public charities in ways too numerous to mention, because they are most valuable adjuncts of the state in the promotion of many of the purposes for which the state itself exists.” The Judge abstained from the specific holding that a cooperative is a charitable organization but held that its nature is such that it must be given the exemption for the same reasons that it is accorded to charitable corporations. The defendant adheres to this position but at the same time it contends that a rural electric cooperative in South Carolina is eleemosynary in its nature and quasi-public by statute. We think that the judgment cannot be sustained unless the Cooperative is truly a charitable corporation under the law of South Carolina, because these bodies are the only corporations, other than governmental or public bodies, that are exempt from liability for tort under the decisions of that state. In our judgment a cooperative formed under the laws of South Carolina, whether organized under Ch. IS of the Code relating to cooperative associations generally, or under Ch. 15 of the Code, which embodies the rural electrical cooperative act, is not a charitable corporation in the sense in which this term is used in the laws of South Carolina. Our conclusion is not based upon the power conferred upon a South Carolina cooperative to sue and be sued, since charitable corporations have this power in South Carolina, see § 12-758 of the Code, but the nature and quality of the business of the cooperative is in our judgment the determining factor. The statute relating to cooperative associations generally, set out in Ch. 13 of the Code, empower an association created thereunder to conduct any agricultural, dairy, mercantile, manufacturing or mechanical business on the cooperative plan, and to buy, sell and deal in' the products of any other cooperative company organized under the statute. Section 12-1022 of Rural Electric Cooperative Act, set out in Chapter 15 of the Code, authorizes the organization of a cooperative thereunder by five or more natural persons or two or more cooperatives, and confers upon such a cooperative, in addition to the powers conferred on all private corporations by § 12-101 of the Code, the power to generate, manufacture, purchase, distribute and sell electric energy to its members, to governmental agencies, and to other persons not in excess of ten per cent of its members in number; to construct, purchase and lease electrical transmission and distribution lines and generating plants, to borrow money and contract indebtedness, and to exercise the power of eminent domain for the construction and operation of electric distribution lines; arid to do all acts and exercise all powers necessary, convenient or appropriate to accomplish the purpose for which the cooperative is organized; Section 12-1025. Charitable organizations, on the other hand, are organized under Chapter 12 of the Code entitled Charitable, Social and Religious Corporations, which authorizes the Secretary of State to issue certificates of incorporation to any church, college, school, lodge, society, company or other association having no capital stock divided into shares, but holding or desiring to hold property in common for religious, educational, social, fraternal, charitable or eleemosynary purposes. It is to corporations formed for these purposes that the exemption from liability for tort has been extended by the Supreme Court of South Carolina. The philosophy underlying this doctrine is clearly considered and set out in the following passage from Vermillion v. Woman’s College of Due West, 104 S.C. 197, 200, 201, 88 S.E. 649, where the ruling announced in Lindler v. Columbia Hospital, 98 S.C. 25, 81 S.E. 512, was reaffirmed. The court said : “ * * * the exemption of public charities from liability in actions for damages for tort rests not upon the relation of the injured person to the charity, but upon grounds of public policy, which forbids the crippling or destruction of charities which are established for the benefit of the whole public to compensate one or more individual members of the public for injuries inflicted by the negligence of the corporation itself, or of its superior officers or agents, or of its servants or employes. The principle is that, in organized society, the rights of the individual must, in some instances, be subordinated to the public good. It is better for the individual to suffer injury without compensation than for the public to be deprived of the benefit of the charity. The law has always favored and fostered pubr lie charties in ways too numerous to mention, because they are most valuable adjuncts of the state in the promotion of many of the purposes for which the state itself exists. * * * “This rule does not put such charities above the law, for their conduct is subject to the supervision of the court of equity; nor does it deny an injured person a remedy for his wrong. It is merely an exception to the rule of respondeat superior, which is itself based on reasons of public policy. The injured person has his remedy against the actual wrongdoer.” In harmony with this doctrine is the decision in Johnson v. Spartanburg County Fair Ass’n, 210 S.C. 56, 41 S.E.2d 599, where it was held that a county fair association was not an eleemosynary corporation. Rejecting the contention that the fair association should be so regarded because it had been conducted from its inception as a charitable or eleemosynary corporation, the court said that the word “eleemosynary” in the statute was used in a broad sense to denote an unselfish purpose to advance the common good in any form or manner, and also pointed out that the fair association was not incorporated as a charitable corporation under the provisions of the South Carolina Code but was organized under the statute relating to the creation of business corporations. The importance and extent of the business of a rural electric cooperative in South Carolina is shown in Bookhart v. Central Electric Power Coop., Inc., 219 S.C. 414, 65 S.E.2d 781, which related to the exercise by such a body of the right of eminent domain. The cooperative in that case comprised seventeen subsidiary cooperative member cor-porations which had distribution systems financed by the Rural Electrification Administration and were in competition with other power companies in other sections of the state. It was held that the cooperative itself was a public service corporation and as such obliged to make membership available without arbitrary or unreasonable limitations, and that the grant to it of the right of eminent domain was a constitutional exercise of legislative power. Public Service Corporations in South Carolina are of course liable for damages caused by their tort. Hill v. Carolina Power & Light Co., 204 S.C. 83, 28 S.E.2d 545. Obviously a rural electric cooperative is not designed to accomplish the beneficial purposes in the public interest which a charitable association in the accustomed sense, such as a church, college or hospital, is organized to serve. It does not belong to the same category. It is essentially a business project designed to promote the convenience and material welfare of its members rather than the common good. Rural electrification has added much to the comfort of residents of rural areas and this worthy purpose has been advanced by the federal government through the loan of funds under the Federal Rural Electrification Act, 7 U.S.C.A. § 901 et seq., and by the State of South Carolina in relieving the organizations of certain governmental controls and of certain taxes. The statutes of the State, however, do not specifically grant exemption from liability for tort, and we do not think that we are justified in relieving them of a burden which inevitably attends the operation of a public utility and is regarded as an operating expense under modern conditions. The fact that the members of the association seek no profit as such, other than the enjoyment of electric service, does not transform the business venture into a charitable enterprise. The Cooperative makes the further contention that it must be considered a charitable corporation because it is not only exempted by § 12-1013 from all income and excise taxes upon the payment of an annual fee of $10 for each one hundred persons served, but is also exempted from all property taxes by § 65-1522(44) of the Code. Under these statutes a rural electric cooperative fares better than other rural electric lines which are exempted only from state, county, school and municipal property taxes under § 65-1522(45). The State Constitution in Art. 10 § 1 requires that the General Assembly provide by law for a uniform and equal rate of taxes; and in Art. 10 § 5 that taxes shall be uniform as respects person and property, and equal rate of taxes. It is argued in view of these provisions that the distinction between the taxes imposed upon rural electric cooperatives and the taxes imposed upon other rural electric lines can only be sustained constitutionally on the theory that the legislature was exercising the power conferred upon it by Article 10 § 1 of the Constitution to exempt property used for charitable purposes. The Cooperative stresses the fact that the primary purpose of the privately owned electric utility is to make a profit whereas the object and purpose of the Cooperative is to furnish electric energy to residents of sparsely settled and remote areas so as to promote their welfare and raise their standard of living. These facts, it contends, justifies the conclusion of the. legislature that the Co-, operative is a charitable body; In this connection attention is called to the case of Benjamin v. Housing Authority of Darlington County, 198 S.C. 79,15 S.E.2d 737, in which the court held that a body set up by the legislature to construct low cost houses for the purpose of eliminating slums and providing homes for families of low income in rural areas was formed for a public purpose. Since the authority was an instrumentality of the county, operated exclusively for the benefit of the public and not for revenue, and the property owned by it was public property, it was held that the property was exempt from taxation under the provisions of Art. 10 § 4 of the Constitution, which provides for the exemption from taxation of. all county, township and municipal property used exclusively for public purposes and not for revenue. The court also held that the provision of the Housing Authority Act exempting the property of the authority was within the power conferred upon the legislature by Art. 10 § 1 to exempt all property used for municipal, educational, literary, scientific, religious or charitable purposes. In like manner it is now contended, the statutes exempting the property of the Cooperative from taxation must be taken as an exercise of the power of the legislature to exempt property used for charitable purposes. We are also asked to consider the decision of the Supreme Court of South Carolina in Rice Hope Plantation v. South Carolina Public Service Authority, 216 S.C. 500, 59 S.E.2d 132, which held that the Authority was not subject to suit in an action ex delicto against it for the reason that it was an agency of the State and as such entitled to the immunity attaching to the sovereignty. There was no provision in the statute which expressly gave it this immunity and yet it was held to be exempt; and in like manner it is urged that the electric coopera-, tive should be held to be immune. There is no merit in these contentions. It is not necessary to invoke the constitutional power to exempt from taxation property used for charitable purposes in order to sustain the statutes which exempt the property of rural electric cooperatives. It is well settled in' South Carolina that the power to prescribe what property shall be taxed implies the power to prescribe what property shall be exempt from taxation, and that in the absence of a constitutional provision to the contrary, the legislature may exempt such classes of property as in its opinion the public policy of the state requires. It is likewise settled that every presumption must be adjudged in favor of such legislative action and it must not be declared invalid unless the conflict with the constitution is irreconcilable. Duke Power Co. v. Bell, County Treasurer, 156 S.C. 299, 310, 311, 152 S.E. 865. In the exercise of this power the legislature has listed the exemptions from taxation set out in § 65-1522(1) to (45) and this section has been held constitutional in Epworth Orphanage v. Wilson, 185 S.C. 243, 193 S.E. 644; Strong v. Sumter, 185 S.C. 203,193 S.E. 649. In Duke Power Co. v. Bell, supra, the power of the legislature to exempt from taxation manufacturers in certain counties of the state was upheld as within the power of the legislature to exempt property for municipal purposes under Art. 10 § 1 of the Constitution; and in these and subsequent cases the words “municipal purposes” have been given a broad meaning, signifying a public or governmental purpose as distinguished from a private purpose. See Ellerbe v. David, County Treas., 193 S.C. 332, 8 S.E.2d 518; Byrd v. Lawrimore, County Treas., 212 S.C. 281, 47 S.E.2d 728. That the rural electric cooperatives serve a beneficial public purpose in South Carolina is a concession in this case and their exemption from taxation is accordingly justified on this ground. It cannot be said that the exemption violates the provisions as to uniformity of taxation contained in Art. 10 §§ 1 and 5 of the State Constitution or the due process or the equal protection clauses of the 14th Amendment to the Federal Constitution. The fundamental rule is that the State legislature has the right to make reasonable classifications of persons and property for taxation purposes. It is elementary that if the classification bears a reasonable relation to the legislative purpose sought to be effected, and if all the members of each class are treated alike under similar circumstances, the equal protection clauses of the Constitutions are fully complied with. Duke Power Co. v. Bell, supra, 156 S.C. at page 318,152 S.E. 865. The distinction between the rights and liabilities of the public bodies considered in Benjamin v. Housing Authority of Darlington County, 198 S.C. 79, 15 S.E. 2d 737, and Rice Hope Plantation v. South Carolina Public Service Authority, 216 S.C. 500, 59 S.E.2d 132, here-inbefore referred to, on the one hand, and the rights and liabilities of rural electric cooperatives in South Carolina on the other, is clear. Both of the former bodies were agencies of the government and it was in accord with the law of the state to hold the one free from liability for tort and to hold that the other served a charitable purpose in providing cheap housing for the indigent. On the other hand, the defendant cooperative in this case, although serving a public purpose of the State, was an association to provide citizens organized to secure for themselves the benefits of electric service at the lowest possible cost. It is clear that the cooperative was not free from liability for tort either as a public body or a charitable organization. The judgment of the District Court will be reversed and the case remanded for further proceedings. Reversed and remanded. . Decisions as to the liability of electric cooperatives for tort under varying local conditions are conflicting. In Arkansas Valley Co-op Rural Electric Co. v. Elkins, 200 Ark. 883, 141 S.W.2d 538, tho cooperative was held to be exempt; but in Consolidated Electric Coop. v. Panhandle E. Pipe lines, 8 dr., 189 F.2d 777, the opposite conclusion was reached. 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_usc1sect

711

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". PACKER PUB. CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 14678. United States Court of Appeals, Eighth Circuit. April 15, 1954. Charles C. Shafer, Jr., Kansas City, Mo. (Lancie L. Watts, Kansas City, Mo., on the brief; Watts & Shafer, Kansas City, Mo., of counsel), for petitioner. Harry Marselli, Sp. Asst, to Atty. Gen. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, Sp. Asst, to Atty. Gen., on the brief), for respondent. Before GARDNER, Chief Judge, and JOHNSEN and COLLET, Circuit Judges. COLLET, Circuit Judge. The Packer Publishing Company duly filed its excess profits tax returns for the years 1943, 1944 and 1945. In those returns it did not claim any adjustments under § 711(b) (1) (J) of the Internal Revenue Code, 26 U.S.C.A. § 711. In due time it made claims for refunds under § 711 for all three years. These claims were allowed in part by the Commissioner by stipulation. The taxpayer did not then nor does it now criticize the stipulated allowance. Thereafter, it filed claims for relief and refunds for each of the three years under § 722 of the Internal Revenue Code, 26 U.S.C.A. § 722. The Commissioner disallowed the claims under § 722. Upon petition by the taxpayer to the Tax Court, that court allowed a portion of the claims by decision reported in Packer Publishing Co. v. Commissioner of Internal Revenue, 17 T.C. 882. The claims based on § 711 having been settled by stipulation between the taxpayer and the Commissioner, neither pleaded the basis for the stipulated allowance in the § 722 proceedings before the Tax Court. The exhibits filed in the Tax Court, made a part of the petition addressed to that court, showed, however, that an allowance had been made under § 711 and the calculations and computations in those exhibits were based upon that stipulated allowance. When the Tax Court granted relief under § 722 it directed that the Commissioner and the taxpayer undertake to make the computation of the amount of refund due and submit the result to the court. This pursuant to the Tax Court’s Rule 50. When the Commissioner and the taxpayer undertook to do so, the Commissioner took the position that the taxpayer could not be entitled to relief under both § 722 and § 711 and, since the court had directed relief under § 722, the Commissioner eliminated from consideration the relief theretofore granted by stipulation under § 711. The taxpayer contended that it was entitled to both. Each submitted to the court, under Rule 50, computations based upon its respective position. The dispute was heard by one judge of that court. The record shows that the judge concluded that the court was without jurisdiction to consider whether the taxpayer was entitled to any relief under § 711 in a proceeding for relief under § 722. This decision was made without inquiry into the basis' for the claimed relief under § 711. Judgment was entered for the taxpayer upon the computation submitted by the Commissioner. That computation was correct if relief under § 722 necessarily and automatically excluded any relief under § 711. If that premise is not correct, the taxpayer has been denied the relief granted by the Commissioner by stipulation without any opportunity to be heard thereon by the Tax Court. Also presented to the Tax Court in the § 722 proceeding was a claim for adjustment in the event relief was granted under § 722. Briefly, that claim was based upon the fact that one of the taxpayer’s executives was paid upon a bonus agreement, the bonus to be a stipulated portion of net profits after taxes. If relief was granted under § 722, the taxes would be lower and the bonus greater. The claim was that the greater compensation to be paid the executive, in the event the bonus was automatically increased as a result of relief being granted under § 722, be treated as operating expense and the increase deducted from the taxable income of the corporate taxpayer. The Tax Court refused to consider this claim on the ground that it was without jurisdiction to grant such relief in a § 722 proceeding. The Commissioner now seeks to sustain the Tax Court’s judgment upon the grounds that: (1) the Tax Court’s judgment is not reviewable and the Commissioner’s motion to dismiss on that ground should be sustained; (2) that if it is reviewable the judgment is correct, because in a § 722 proceeding the Tax Court’s jurisdiction is strictly limited to issues arising under § 722 alone; (3) that the taxpayer did not plead the grounds upon which it was claiming the relief theretofore administratively granted by stipulation under § 711 and hence such relief could not be considered in the § 722 proceeding; (4) that in its petition for review of the Tax Court’s judgment the taxpayer did not include in the errors assigned or points stated therein any reference to its claim to an increased deduction on account of the-increased bonus compensation in the nature of salary to its executive. A motion was addressed to this court, prior to docketing and submission of this cause, for leave to include this additional point for presentation to this court. At that time the motion was denied without prejudice to its renewal at the time of argument and submission. It has been renewed and is before us for determination with the case. The Commissioner’s motion to dismiss is based upon § 732(c), which is as follows : “(c) Finality of determination. If in the determination of the tax liability under this subchapter the determination of any question is necessary solely by reason of section 711(b) (1) (H), (I), (J), or (K), section 721, or section 722, the determination of such question shall not be reviewed or redetermined by any court or agency except the Board.” 26 U.S.C.A. § 732(c). Broadly and generally stated, both § 722 and § 711 deal with determining the normal income base to be used for purposes of comparison with the income for the tax year in question in order to determine the excess profits for a given year which were earned in addition to the normal or base period earnings. This for the purpose of determining the tax for that year. The provision of § 722 under which the Tax Court granted relief is § 722(b) (4), reading as follows : “(b) Taxpayers using average earnings method. The tax computed under this subchapter (without the benefit of this section) shall be considered to be excessive and discriminatory in the case of a taxpayer entitled to use the excess profits credit based on income pursuant to section 713, if its average base period net income is an inadequate standard of normal earnings because— “(4) the taxpayer, either during or immediately prior to the base period, commenced business or changed the character of the business and the average base period net income does not reflect the normal operation for the entire base period of the business. If the business of the taxpayer did not reach, by the end of the base period, the earning level which it would have reached if the taxpayer had commenced business or made the change in the character of the business two years before it did so, it shall be deemed to have commenced the business or made the change at such earlier time. For the purposes of this subparagraph, the term ‘change in the character of the business’ includes a change in the operation or management of the business, a difference in the products or services furnished, a difference in the capacity for production or operation, a difference in the ratio of nonbor-rowed capital to total capital, and the acquisition before January 1, 1940, of all or part of the assets of a competitor, with the result that the competition of such competitor was eliminated or diminished. Any change in the capacity for production or operation of the business consummated during any taxable year ending after December 31, 1939, as a result of a course of action to which the taxpayer was committed prior to January 1, 1940, or any acquisition before May 31, 1941, from a competitor engaged in the dissemination of information through the public press, of substantially all the assets of such competitor employed in such business with the result that competition between the taxpayer and the competitor existing before January 1, 1940, was eliminated, shall be deemed to be a change on December 31, 1939, in the character of the business, or * * Section 711(b) (1)(J), 26 U.S.C.A. § 711, under which relief was granted administratively by stipulation and later withdrawn by the Commissioner after the Tax Court had granted relief under § 722, is as follows: “(b) Taxable years in base period. “(1) General rule and adjustments. The excess profits net income for any taxable year subject to the Revenue Act of 1936 shall be the normal-tax net income, as defined in section 13(a) of such Act; and for any other taxable year beginning after December 31, 1937, and before January 1, 1940, shall be the special-class net income, as defined in section 14(a) of the applicable revenue law. In either case the following adjustments shall be made * * *_ “(J) Abnormal deductions. Under regulations prescribed by the Commissioner, with the approval of the Secretary, for the determination, for the purposes of this sub-paragraph, of the classification of deductions— “(i) Deductions of any class shall not be allowed if deductions of such class were abnormal for the taxpayer, and “(ii) If the class of deductions was normal for the taxpayer, but the deductions of such class were in excess of 125 per centum of the average amount of deductions of such class for the four previous taxable years, they shall be disallowed in an amount equal to such excess.” 26 U.S.C.A. § 711(b)(1) (J). It is obvious, from the above quoted portions of § 722 and § 711 that the application of the formulae for determining normal or base period income is a complicated process. Reference to the remainder of both sections not quoted herein makes that fact more certain. It is safe to say from the proceedings in Congress incident to the enactment of § 732(c) and the language of the latter section, heretofore quoted, that the congressional intent and purpose was to provide that the application of the formulae set out in § 722 and § 711 (and § 721, not now directly involved) should be finally reviewed by the experts in that field, — the Tax Court. The Commissioner contends that such finality of review by the Tax Court extends not only to the ascertainment of whether the facts in a particular case warrant relief under those sections, but also to the legal construction of those sections for the purpose of determining whether relief granted under § 722 automatically precludes and is in lieu of any and all relief which is provided for by § 711. The cases of Colonial Amusement Co. v. Commissioner, 3 Cir., 173 F.2d 568; Colorado Milling & Elevator Co. v. Commissioner, 10 Cir., 205 F.2d 551; George Kemp Real Estate Co. v. Commissioner, 2 Cir., 182 F.2d 847; James F. Waters, Inc., v. Commissioner, 9 Cir., 160 F.2d 596, are cited iñ support of that position. An examination of these authorities discloses that neither of them holds thát a review of the question presented here is barred by § 732(c). In each of those cases the question determined by the Tax Court was whether, under the facts, relief under § 721, § 722, or § 711 was appropriate. It is true that in the Kemp case the court stated that the language of § 732(c) “forbids any judicial review, whether of fact or law.” [182 F.2d 849.] But that statement was made in answer to á contention that § 732(c) should-not be construed to forbid appellate review of questions of law when there were no disputed questions of fact. That presented an entirely different situation from that which is before us. There the facts were before the Tax Court. They were considered and the formulae of § 721 and § 722 were applied by that court with the result that it was determined the facts justified no relief under the law. Here the Tax Court declined to consider whether relief was appropriate under § 711, not because the facts did not justify relief, but because that court concluded the proper judicial construction of § 722 and § 711 must result in a holding that the granting of any relief under § 722 automatically precluded any consideration of relief under § 711, and hence no consideration could be given a claim for relief under § 711 in a § 722 case. That decision involved solely the judicial construction of the statute. It did not involve to any extent the determination of whether the formula of the statute, applied to the facts by the experts, justified or did not justify relief. The facts were not before the court and the taxpayer was prevented from presenting them by the court’s construction of the statutes. Such a decision of the Tax Court is not within the purview of the prohibition of § 732(c). Cf. Dowd-Feder, Inc., v. Commissioner, 6 Cir., 173 F.2d 673; Stimson Mill Co. v. Commissioner, 9 Cir., 163 F.2d 269. We are not confronted with the necessity of determining the propriety of a denial of relief by the Tax Court under § 711 upon the ground that such relief, if any was merited, was included in the relief given under the broad scope of § 722, or upon any other ground involving the merits or the facts upon which a claim under § 711 is based. As we have undertaken to make clear, our problem is to determine whether the Tax Court was precluded by § 722 and § 711 from entertaining jurisdiction of the merits of the claim made and granted by stipulation under § 711 in a proceeding instituted under § 722. Granting that both sections are relief provisions and are to be strictly construed to the end that the relief intended should not be extended beyond the clear intent of the law as written, yet such construction should not be unreasonable or arbitrary. In Mutual Lumber Co. v. Commissioner, 16 T.C. 370, the Tax Court held (with three judges dissenting) that in a case arising under § 722 it had no jurisdiction to consider an issue other than one arising under § 722. In H. Fendrich, Inc., v. Commissioner, a similar ruling was made. The latter case was reversed in H. Fendrich, Inc., v. Commissioner, 7 Cir., 192 F.2d 916, decided November 16, 1951. In the case of City Machine & Tool Company v. Commissioner, 6 Cir., 194 F.2d 535, decided February 22, 1952, the Tax Court had followed the rule it announced in Mutual Lumber Co. v. Commissioner and H. Fendrich, Inc., v. Commissioner. The Commissioner confessed error and the Court of Appeals (6 Cir.) reversed, following H. Fendrich, Inc., v. Commissioner (7 Cir.). In the case of Jefferson Amusement Co. v. Commissioner, 18 T.C. 44, decided April 9, 1952, and East Texas Theatres v. Commissioner, 19 T.C. 615, decided December 31, 1952, the Tax Court followed the decisions of the Courts of Appeals for the Sixth and Seventh Circuits in the City Machine & Tool Company and the Fendrich cases. The hearing on the merits of the claim under § 722 was held in November, 1950. The record appears to have been closed April 9, 1951. Although the findings and opinion were not filed until November, 1951, apparently that opinion was rendered before the decision of the Fendrich case, November 16, 1951. When the hearing was held in March, 1952, by the trial judge, on the dispute arising at the conference of the parties under Rule 50, the hearing judge considered the Fendrich case but concluded that the Mutual Lumber case, supra, was the law of this case, the opinion of the Tax Court in the § 722 case having been theretofore filed. Whether the trial judge should have reached that conclusion is of no present importance, for we must now determine the correctness of the judgment of the Tax Court and the decision reached in the Fendrich and City Machine & Tool Company cases, supra, by the Courts of Appeals for the Sixth and Seventh Circuits. We find no fault with those cases. The principle decided in both is correct and controlling here. In both of them those courts reached the conclusion that the Tax Court had jurisdiction to consider issues arising under other parts of the Internal Revenue Code in a proceeding arising under § 722. The argument is made by the Commissioner that the facts showing the grounds upon which relief was sought (and which had been granted by stipulation) under § 711 should have been pleaded by the taxpayer in its petition to the Tax Court for relief under § 722, and not being pleaded, no relief could be granted under § 711. The taxpayer contends that since the relief under § 711 had been granted by the Commissioner and was no longer in dispute, if the Commissioner considered that relief a bar to or a duplication of the relief sought in the petition for § 722 relief, that fact should have been pleaded as an affirmative defense by the Commissioner and that not having been done, any such defense is now waived. We are not impressed with the value or desirability of making hard and fast pronouncements concerning procedural practices which experience has taught and formal rules of procedure contemplate should be left sufficiently elastic to enable trial courts to exercise a large degree of discretion in the administration of substantial justice. Formal rules of procedure are necessary and desirable in order that litigants may have an authoritative guide in a proper course to be safely followed to obtain a determination of the merits of their controversy. They should not be made the means of entrapping a litigant, whereby he loses his opportunity to present his cause on its merits. The Tax Court did not do this. It did not reach the question. Since the cause must be remanded, it is sufficient for present purposes to observe that if the formal pleading of additional facts be deemed necessary by the Tax Court for the clarification and presentation of this issue, leave should be granted to make appropriate amendment to the pleadings. From what has already been said it must follow that the taxpayer’s motion for leave to include in the errors assigned the point that the Tax Court had jurisdiction to pass upon the claim for an increased deduction on account of an increase in the compensation of the taxpayer’s executive should be granted. It is granted. We agree with the statement of the Senate Finance Committee and the Court of Appeals for the Seventh Circuit in II. Fendrich, Inc., v. Commissioner, 192 F.2d 916, 920, that: “ '* * * it is essential that all such issues be decided by one group familiar with the problems involved. Only by this method can a consistent and uniform application of the principles established be assured in all cases. At the same time there is provided [by the statute] flexible machinery to coordinate cases involving both relief and abnormality issues as well as other questions.’ ” The petitioning taxpayer requests that we direct the entry of a judgment allowing the relief claimed under § 711. A consideration of the merits of that claim and the facts upon which it is based, in the light of the relief granted under § 722, is essential to a determination of whether relief under § 711 is appropriate, in addition to that granted under § 722. That is for the Tax Court to determine, both from necessity in this case, and also because of the direction of the statute. For the reasons stated, the cause is remanded to the Tax Court for its determination of the taxpayer’s right to relief under § 711, and the propriety of an additional deduction on account of an increase in the compensation of the taxpayer's executive, occasioned by the decrease in taxes resulting from such relief as may be granted by the Tax Court. . Since the pertinent portions of § 711 will be referred to later, they are not set out here. 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_applfrom

A

What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). Milton E. SPARKS, Plaintiff-Appellant, v. GILLEY TRUCKING COMPANY, INCORPORATED, Defendant-Appellee. No. 92-1547. United States Court of Appeals, Fourth Circuit. Argued Dec. 2, 1992. Decided April 21, 1993. James Collins Landstreet, II, Cowan & Landstreet, Elizabethton, TN, argued, for plaintiff-appellant. Frank Parrott Graham, Roberts, Stevens & Cogburn, P.A., Asheville, NC, argued, for defendant-appellee. Before WILKINSON and NIEMEYER, Circuit Judges, and MORGAN, United States District Judge for the Eastern District of Virginia, sitting by designation. OPINION NIEMEYER, Circuit Judge: The principal issue presented in this appeal is whether evidence of prior speeding tickets may be admitted under Federal Rule of Evidence 404(b) to prove negligence in an automobile tort case. We hold that in the circumstances of this case it was prejudicial error for the district court to have admitted such evidence, and we therefore vacate the judgment and remand the case for a new trial. I Late on a June afternoon in 1987, Milton E. Sparks was driving up a mountain near the North Carolina-Tennessee border in his red Corvette when a logging truck came down the mountain in the opposite direction. After the vehicles passed by each other, Sparks lost control of his car, hit a tree, and sustained serious personal injuries. Sparks sued Gilley Trucking Company, the owner of the logging truck, alleging negligence, and Gilley Trucking filed a defense contending that Sparks’ own negligence contributed to the accident. At trial Sparks testified that the truck was traveling in the middle of the road and that, in trying to avoid a collision, he ran off the road and hit a tree. The driver of the truck testified to different facts, stating that Sparks was driving at an excessive rate of speed in the middle of the road and lost control when he swerved to avoid hitting the truck. To advance its theory that Sparks was speeding and, indeed, racing at the time of the accident, Gilley Trucking was allowed to introduce, over Sparks’ objection, evidence that Sparks had been convicted of speeding on several prior occasions. Relying on Federal Rule of Evidence 404(b), the district court admitted the evidence “to show intent, preparation, plan or motive to race or speed on the day in question.” This evidence formed a principal part of Gilley Trucking’s defense that on the day of the accident Sparks was contributorily negligent. Gilley Trucking also presented testimony of the investigating police officer who estimated Sparks’ rate of speed immediately before the accident at 70 m.p.h. The jury found that negligence of both drivers contributed to the accident and, as required by North Carolina law, rendered judgment for the defendant trucking company. On appeal Sparks contends that the district court erred in admitting both the evidence of prior speeding tickets and the expert testimony. II The principal issue turns on whether the fact that Sparks was convicted of speeding on prior occasions had a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R.Evid. 401. The analysis begins with the recognition that Federal Rule of Evidence 404(a) provides that “[ejvidence of a person’s character or a trait of character” is not admissible to prove that a person acted in conformity with that character or trait on a particular occasion. Attempting to prove conduct by showing a character trait is too general and unreliable a method, and therefore it is excluded under the same principle as is reflected in Rule 403 — any probative value is “substantially outweighed by the danger of unfair prejudice.” Accordingly, Rule 404(b) provides that evidence of prior “crimes, wrongs or acts” may be admitted to prove a relevant fact except when it is offered solely to “prove the character of a person in order to show action in conformity therewith.” Rule 404(b) is thus a rule of inclusion that permits the admission of prior acts if probative to an aspect of the case and not offered merely to establish a character trait which would encompass the type of conduct in question. See United States v. Masters, 622 F.2d 83, 85-86 (4th Cir.1980). Thus, when intent to commit a crime is at issue, we have regularly permitted the admission of prior acts to prove that element. A criminal defendant, for example, cannot deny knowledge of drug trafficking or an intent to traffic in drugs and at the same time preclude the admission of the government’s evidence of prior occasions when he willingly trafficked in drugs. We have held repeatedly that when intent to commit an act is an element of a crime, prior activity showing a willingness to commit that act may be probative. See, e.g., United States v. Mark, 943 F.2d 444, 448 (4th Cir.1991); United States v. Rawle, 845 F.2d 1244, 1247-48 (4th Cir.1988). The Supreme Court pointed out in Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the importance that prior act evidence may have in deciding a disputed issue, “especially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct.” Id. at 685, 108 S.Ct. at 1499. Thus when evidence of prior acts is probative of a fact material to the case, Rule 404(b) permits its admission even when it may tend also to show a character trait. To protect against the danger of prejudice the court should give a limiting instruction under Rule 105 if one is requested and must, in any event, weigh the prejudicial effect under Rule 403. In a common law negligence case, however, the issue is generally not the defendant’s state of mind. Rather the factfinder must determine whether the defendant was acting as a reasonable person would have acted in similar circumstances. In this case Gilley Trucking was attempting to prove that Sparks was speeding or racing at the time of the accident and therefore driving in a negligent manner that contributed to the resulting accident. Yet proof of negligence does not require a showing of intent or plan, the stated purposes for which the prior speeding tickets were admitted by the district court. Moreover, prior acts of speeding alone do not establish intent because a speeding violation does not depend on intent. A speeding ticket may be issued regardless of the defendant’s state of mind. Indeed, accidental or inadvertent speeding may result in the issuance of a speeding ticket. See N.C.Gen. Stat. § 20-141. If Gilley Trucking was attempting to show that Sparks was racing at the time of the accident, it took upon itself the unnecessary burden of showing that Sparks was speeding intentionally to show that he was driving negligently. While an intentional act does require proof of a state of mind, for which prior acts may be admissible, a showing of prior acts of speeding without more is still not relevant to establishing this state of mind. Gilley Trucking made no effort to show that any prior speeding was deliberate or was in any way related to racing. Indeed, Sparks’ explanations tend to suggest that the conduct resulted more from inadvertence. For example, he said, “As far as I know every speeding ticket I’ve ever had has been out on interstate road traveling back and forth to and from jobs.” Nor did Gilley Trucking present any foundation for the theory that-the prior tickets revealed a “plan” or a “motive” to race on the day of the accident, and none of the evidence about the tickets discloses preparation to speed or race on that day. The relatively extensive evidence of the several prior speeding tickets in this case tended to show at most a trait about Sparks, that he tended to speed, and to suggest that because he speeded on prior occasions, he was speeding at the time of the accident. This purpose for using the prior acts evidence, however, is the one specifically prohibited by Rule 404, as we have already observed, and the evidence should not have been admitted. While it was error to have admitted evidence of the prior speeding tickets in the circumstances of this case, a new trial is warranted only if admission of the evidence was not harmless error. See 28 U.S.C. § 2111 (judgments not to be set aside on appeal based on “errors or defects which do not affect the substantial rights of the parties”); Fed.R.Evid. 103(a) (same). In the circumstances of this case we do not find the error harmless. When the speeding tickets are excluded, the evidence presents close factual issues. Sparks and the Gilley Trucking driver testified to different versions of the events leading to the accident. There was conflicting testimony and physical evidence of Sparks’ speed. Against the backdrop of this stand-off, the jury heard detailed evidence about several prior occasions when Sparks was convicted of speeding, and this evidence thus became an important aspect of Gilley Trucking’s presentation to the jury. Cf. Bonilla v. Yamaha Motors Corp., 955 F.2d 150, 154-55 (1st Cir.1992) (finding erroneous admission of speeding tickets not harmless error). We cannot determine that the evidence did not adversely affect the outcome of the case. See Ellis v. International Playtex, Inc., 745 F.2d 292, 305 (4th Cir.1984) (error not harmless when court could not be certain refusal to admit evidence did not prejudice outcome). Accordingly, we conclude that a new trial is necessary in this case. Ill Sparks also contends that the district court erred in allowing Officer D.K. Doster, who investigated the accident, to testify as an expert witness for Gilley Trucking that immediately prior to the accident he estimated Sparks’ speed at 70 m.p.h. Sparks argues that the court should not have admitted the expert testimony of Officer Doster as it was without sufficient factual basis, in particular because Officer Doster did not measure the friction of the highway surface in question before applying a coefficient of friction to the length of the skid marks when estimating Sparks’ speed. While resolution of this issue is not necessary to the immediate disposition of this appeal, we address it because the testimony of Officer Doster may again be offered at a new trial. Expert witnesses may testify whenever special knowledge will assist the trier of fact. Fed.R.Evid. 702. Whether to allow expert testimony and whether a potential witness possesses sufficient education and training to render an expert opinion are questions committed to the discretion of the trial judge, and our review determines only whether this discretion has been abused. See Persinger v. Norfolk & W. Ry., 920 F.2d 1185, 1187 (4th Cir.1990). Here, the district court concluded that expert testimony would help the jury evaluate the physical evidence and consider how fast Sparks was driving. The court accepted Officer Doster as an expert on rates of speed after it was presented with evidence of his experience in accident investigation and reconstruction as a member of the North Carolina Highway Patrol and the Franklin Police Department and his training through formal instruction. We do not find that the court abused its discretion. Sparks argues, however, that even if Officer Doster was properly accepted as an expert, he should not have been allowed to give his opinion on speed without having conducted a proper coefficients of friction test because without it he lacked the necessary factual basis to form a useful opinion. Sparks is correct in noting that a court may refuse to allow a generally qualified expert to testify if his factual assumptions are not supported by the evidence. See Eastern Auto Distrib., Inc. v. Peugeot Motors of America, Inc., 795 F.2d 329, 337-38 (4th Cir.1986). In this case, however, the objection relates more to how Officer Doster formed his opinion than to the facts upon which it was based. Officer Doster was the first officer on the scene. He saw the skid marks, their length, and their direction, and he observed the highway surface, the condition of the car, and the tree it hit. Moreover, all of the facts he considered in making his estimate were in evidence. Whether he properly performed a test goes more to the weight to be attached to his opinion than to its admissibility. See, e.g., Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000, 3009, 92 L.Ed.2d 315 (1986) (finding that failure to include certain variables in a regression analysis went to the probative weight of the analysis, not to its admissibility). The proper methods for addressing the perceived shortcoming in Officer Doster’s technique were cross-examination and the presentation of rebutting expert testimony, and Sparks availed himself of both methods. Thus, while we find no abuse of discretion by the district court in admitting the expert testimony, we nevertheless vacate the judgment and remand for a new trial because the admission of evidence of prior speeding tickets was improper and prejudicial. REVERSED AND REMANDED. . In cases where character itself becomes relevant to an issue, however, it may be proved by prior acts. See Fed.R.Evid. 405(b). . We are careful to note that our opinion is limited to the circumstances of this case and should not be construed to establish a per se rule that would require the exclusion of a party's driving record under different circumstances. See, e.g., United States v. Fleming, 739 F.2d 945, 949 (4th Cir. 1984) (admission 'of prior drunk driving convictions not error in vehicular death case as prosecutor must show malice&emdash;awareness of risk of drinking and driving), cert. denied, 469 U.S. 1193, 105 S.Ct. 970, 83 L.Ed.2d 973 (1985). . In contrast, we need not address Sparks' final assignment of error&emdash;that the district court erred in refusing to allow Earl Street to testify for Sparks as a rebuttal witness to impeach the testimony of the Gilley Trucking Driver. The court ruled that Sparks' notification of the witness to Gilley Trucking was untimely, and to permit the witness to testify would be "unfair surprise” without giving Gilley Trucking "time to look into it.” By our new trial order, this issue is rendered moot. 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

025

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. WIRTZ, SECRETARY OF LABOR v. LOCAL UNION NO. 125, LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO. No. 58. Argued November 8-9, 1967. Decided January 15, 1968. Louis F. Claiborne argued the cause for petitioner. With him on the brief were Solicitor General Marshall, Acting Assistant Attorney General Eardley, Richard A. Posner, Alan S. Rosenthal, Robert V. Zener, Charles Donahue, James R. Beaird and Beate Bloch. Mortimer Riemer argued the cause and filed a brief for respondent. J. Albert Woll, Laurence Gold and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations, as amicus citrine, urging affirmance. Mr. Justice Brennan delivered the opinion of the Court. This is a companion case to No. 67, Wirtz v. Local 168, Glass Bottle Blowers Assn., ante, p. 463. Petitioner, the Secretary of Labor, filed the action in the District Court for the Northern District of Ohio, Eastern Division, under § 402 (b) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U. S. C. § 482 (b). His complaint challenged the validity of a general election of union officers conducted by the respondent Local Union on June 8, 1963, and the validity of a runoff election for the single office of Business Representative made necessary by a tie vote for that office at the June 8 election. The complaint alleged, in part, violations of § 401 (e), 29 U. S. C. § 481 (e), in permitting members not “in good standing” to vote and to run for office on both occasions. However, the only allegation that internal union remedies had been exhausted, as is required by § 402 (a), was in regard to the runoff election of July 13; the complaint stated that the loser in the runoff election, one Dial, protested and appealed to the General Executive Board of the International Union concerning the conduct of that election and, having received a final denial of his protest by the General Executive Board, filed a timely complaint with the Secretary. The District Court held that the omission in the complaint of an allegation that a member complained internally about the conduct of the June 8 general election was fatal to the Secretary’s action addressed to that election and dismissed that part of the complaint. 231 F. Supp. 590. The Secretary appealed to the Court of Appeals for the Sixth Circuit. During pendency of the appeal, respondent Local conducted its next regular triennial election of officers. The Court of Appeals thereupon vacated the judgment of dismissal and remanded to the District Court with instructions that the portion of the Secretary’s complaint dealing with the June 8 election be dismissed as moot. 375 F. 2d 921. We granted cer-tiorari. 387 U. S. 904. In light of our decision today in Wirtz v. Local 153, supra, the action of the Court of Appeals must be reversed; we there held that "... the fact that the union has already conducted another unsupervised election does not deprive the Secretary of his right to a court order declaring the challenged election void and directing that a new election be conducted under his supervision.” At 475^476. In the circumstances we might remand to the Court of Appeals to decide the merits of the Secretary’s appeal. The issue on the merits is whether the District Court erred in holding that the Secretary in his suit may not challenge the alleged violations affecting the general election of June 8 because Dial specifically challenged only the runoff election of July 13 with respect to the office of Business Representative. The merits of this question have been fully briefed and argued in this Court and the underlying issue of statutory construction has already been the subject of several and conflicting rulings by various federal courts. The interests of judicial economy are therefore best served if we proceed to resolve this important question now. Respondent Local is governed by the Constitution and the Uniform Local Union Constitution of the Laborers’ International Union of North America. Under the Uniform Local Union Constitution as it existed during the period relevant here, a member’s good standing was lost by failure to pay membership dues within a specified grace period, and the member was automatically suspended without notice and with loss of all membership rights except the right to readmission (but as a new member) upon payment of a fee. The eligibility of voters and candidates in both elections in this case was determined by reference to a report to the International Union of the names of members for whom a per capita tax had been paid. This report included some 50 to 75 members who were delinquent in the payment of their Local dues and had therefore actually lost good standing under the provisions of the Uniform Local Union Constitution. The cause of this patent disregard of the Local’s own constitution was the practice of its Secretary-Treasurer of paying from Local funds the per capita tax of delinquent members selected by him, thus making it appear on the per capita tax report that those members had met their dues obligations when in fact they had not. The Secretary’s investigation disclosed that approximately 50 of the members voting in the June 8 general election and approximately 60 voting in the July 13 runoff election were ineligible to vote; and that 16 of the 27 candidates for office in the general election, including Dial’s opponent who ultimately won the runoff, were ineligible for the same reason. The question is one of statutory construction and must be answered by inference since there is lacking an explicit provision regarding the permissible scope of the Secretary’s complaint. On the facts of this case we think the Secretary is entitled to maintain his action challenging the June 8 general election because respondent union had fair notice from the violation charged by Dial in his protest of the runoff election that the same unlawful conduct probably occurred at the earlier election as well. We therefore need not consider and intimate no view on the merits of the Secretary’s argument that a member’s protest triggers a § 402 enforcement action in which the Secretary would be permitted to file suit challenging any violation of § 401 discovered in his investigation of the member’s complaint. We reject the narrow construction adopted by the District Court and supported by respondent limiting the Secretary’s complaint solely to the allegations made in the union member’s initial complaint. Such a severe restriction upon the Secretary’s powers should not be read into the statute without a clear indication of congressional intent to that effect. Neither the language of the statute nor its legislative history provides such an indication; indeed, the indications are quite clearly to the contrary. First, it is most improbable that Congress deliberately settled exclusive enforcement jurisdiction on the Secretary and granted him broad investigative powers to discharge his responsibilities, yet intended the shape of the enforcement action to be immutably fixed by the artfulness of a layman’s complaint which often must be based on incomplete information. The expertise and resources of the Labor Department were surely meant to have a broader play. Second, so to constrict the Secretary would be inconsistent with his vital role, which we emphasize today in Wirtz v. Local 153, supra, in protecting the public interest bound up in Title IY. The Act was not designed merely to protect the right of a union member to run for a particular union office in a particular election. Title IY’s special function in furthering the general goals of the LMRDA is to insure free and democratic union elections, the regulations of the union electoral process enacted in the Title having been regarded as necessary protections of the public interest as well as of the rights and interests of union members. We can only conclude, therefore, that it would be anomalous to limit the reach of the Secretary’s cause of action by the specifics of the union member’s complaint. In an analogous context we rejected such a limiting construction of the National Labor Relations Board’s authority to fashion unfair labor practice complaints. NLRB v. Fant Milling Co., 360 U. S. 301, 306-309; National Licorice Co. v. NLRB, 309 U. S. 350, 369. Respondent argues, however, that the spirit and letter of the statutory requirement that the member first exhaust his internal union remedies before the Secretary may intervene compels the suggested limitation. It contends that even to allow the Secretary to challenge the earlier election for the same violation established as having occurred in the runoff election would be inconsistent with Congress’ intention to allow unions first opportunity to redress violations of § 401. This argument is not persuasive. It is true that the exhaustion requirement was regarded by Congress as critical to the statute’s objective of fostering union self-government. By channeling members through the internal appellate processes, Congress hoped to accustom members to utilizing the remedies made available within their own organization; at the same time, however, unions were expected to provide responsible and responsive procedures for investigating and redressing members' election grievances. These intertwined objectives are not disserved but furthered by permitting the Secretary to include in his complaint at least any § 401 violation he has discovered which the union had a fair opportunity to consider and redress in connection with a member’s initial complaint. Here the Secretary sought to challenge the June 8 general election, alleging that the same unlawful conduct occurring in the runoff affected the general election held only five weeks before. Dial’s complaint had disclosed the fraudulent practice with respect to the runoff, and he was apparently able to prove at the hearing before the General Executive Board that that practice enabled nine ineligible members to vote in the runoff election; but his protest was denied because he had lost by 19 votes. The Secretary’s investigation, however, discovered that a much larger number of ineligible members had been permitted to vote in that runoff election and that the Secretary-Treasurer responsible for the falsification prepared the per capita tax reports used to determine the eligibility of voters and candidates at both elections. Yet in the face of Dial’s evidence raising the almost overwhelming probability that the misconduct affecting the runoff election had also occurred at the June 8 election, the union insists that it was under no duty to expand its inquiry beyond the specific challenge to the runoff election made by Dial. Surely this is not the responsible union self-government contemplated by Congress in allowing the unions great latitude in resolving their own internal controversies. In default of respondent’s action on a violation which it had a fair opportunity to consider and resolve in connection with Dial’s protest, the Secretary was entitled to seek relief from the court with respect to the June 8 election. Again, Congress, having given the Secretary a broad investigative power, cannot have intended that his right to relief be defined by a complaining member’s ignorance of the law or the facts or by the artlessness of the member’s protest. Because the complaint as to the June 8 election was dismissed for deficiency in pleading, the factual allegations have not been tried. We therefore reverse the judgment of the Court of Appeals and remand to that court with direction to enter a judgment reversing the District Court’s judgment of dismissal and directing further proceedings by that court consistent with this opinion. It is so ordered. Mr. Justice Marshall took no part in the consideration or decision of this case. The order of dismissal in the District Court was entered July 14, 1964. On April 18, 1966, the District Court entered an order granting the Secretary's motion for summary judgment regarding the portion of his complaint directed to the runoff election of July 13, 1963, for the office of Business Representative. The runoff was conducted under the Secretary’s supervision on June 11, 1966, the same day the union conducted the unsupervised intervening election. Dial lost the runoff. Compare Wirtz v. Hotel Employees Union, Local 6, 381 F. 2d 500; Wirtz v. Local 9 et al., IUOE, 366 F. 2d 911; Wirtz v. Local 174, Musicians, 65 L. R. R. M. 2972; and Wirtz v. Local 450, IUOE, 63 L. R. R. M. 2105, which more or less support the view of the District Court herein, with Wirtz v. Local 406, IUOE, 254 F. Supp. 962; Wirtz v. Local 705, Hotel Employees, 63 L. R. R. M. 2315; and Wirtz v. Local 169, Hod Carriers, 246 F. Supp. 741, which support a broader view. These conflicting views particularly justify our resolution of the question without remanding to the Court of Appeals. In contrast, the issue in No. 57, Wirtz v. Local 153, supra, which we did remand to the Court of Appeals, was whether a standard not questioned by any party was properly applied to the particular facts. The International Constitution required respondent Local to remit to the- International a per capita tax payment of $1 per member per month. These payments were to be made only for members who had in fact made current payment of their dues to the Local. See Wirtz v. Local 169, Hod Carriers, supra, n. 2, at 751-753. Although the eligibility of Dial’s opponent in the runoff was an issue before the District Court on the 'Secretary’s motion for summary judgment, the judgment was granted on the ground of voter ineligibility; that judgment is not before us. The Secretary’s authority under § 601, 29 U. S. C. § 521, both supplements his investigative mandate under § 402 (b) and authorizes inquiry without regard to the filing of a complaint by a union member. But when the Secretary investigates pursuant to § 601 without a member’s complaint, his remedy is limited to disclosure of violations discovered. Whether violations of §401 uncovered by a § 601 investigation may be the predicate of a member’s protest to the union and an enforcement proceeding under § 402 if the union denies relief is a question we need not and do not reach in this case. Senator Kennedy’s reference to the Secretary as the complaining “union member’s lawyer,” 104 Cong. Ree. 10947, Leg. Hist. 1093 (Dept. Labor 1964), does not support the District Court’s conclusion. The lawyer’s function is to use his skills to give shape and substance to his client’s often incompletely expressed complaint. The fact that the National Labor Relations Act does not require prior exhaustion of internal union remedies does not destroy the analogy; nothing in our holding today dispenses with the exhaustion requirement of § 402 (a). 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. 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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_procedur

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. John Calvin JOHNSON, Appellant, v. Walter M. RIDDLE, Appellee. No. 76-2035. United States Court of Appeals, Fourth Circuit. Argued Feb. 18, 1977. Decided Sept. 16, 1977. Randall M. Chastain, Columbia, S.C. (G. Anthony Campbell, U.S.C. Law Center, Columbia, S.C., on brief), for appellant. Jim L. Chin, Asst. Atty. Gen., Richmond, Va. (Andrew P. Miller, Atty. Gen. of Va., Richmond, Va., on brief), for appellee. Before HAYNSWORTH, Chief Judge, and CRAVEN and WIDENER, Circuit Judges. Circuit Judge Craven participated in the decision of this case but died before the opinion was prepared. WIDENER, Circuit Judge: In this federal habeas corpus proceeding, petitioner John Calvin Johnson challenges the validity of a 1957 armed robbery conviction upon which a current three-year recidivist sentence is partially based. The district court denied relief, and we affirm. Johnson directs four assignments of error at his 1957 conviction: (1) The systematic exclusion of black people from the grand jury that indicted him; (2) denial of his right of appeal; (3) ineffective assistance of counsel at the appellate stage of the proceedings; and (4) the use of an impermissibly suggestive identification procedure consisting of a pre-trial showup. I Grand Jury Selection Petitioner is precluded from raising the issue of the exclusion of black people from the grand jury that indicted him in 1957. Under State law, such an issue must be raised at a preliminary stage of the original State court proceeding, prior to the time a plea is entered on the merits, or else the objection is waived. Bailey v. Commonwealth, 193 Va. 814, 71 S.E.2d 368 (1952). Petitioner having raised this issue for the first time 17 years after his trial and conviction, his objection was waived under State law, and cannot, under the facts before us, be asserted now in a federal habeas corpus proceeding. Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). Neither cause for the failure to raise the point at the time nor actual prejudice has been shown here. Francis, p. 542, 96 S.Ct. 1708. II Right to Appeal and Ineffective Assistance of Counsel Although petitioner’s brief phrases this aspect of the case in terms of denial of a right to appeal and ineffective assistance of counsel, both of these claims share the same factual basis, that petitioner told his appointed counsel that he wished to appeal his 1957 conviction but that counsel failed to follow through on the request. Petitioner chose to raise these claims for the first time seventeen years after his trial and conviction, although nothing prevented him from doing so at a time when the State might have had a chance of reconstructing the record and surrounding events in an effort to explain why an appeal was never filed. We agree with the district court that petitioner’s contention is raised too late to avail him. See Lunnermon v. Peyton, 310 F.Supp. 323 (W.D.Va.1970), aff’d per curiam in 440 F.2d 774 (4th Cir. 1971). While in other contexts substantial delays in seeking habeas corpus relief have not precluded consideration of the points raised, see, e.g., Garland v. Cox, 472 F.2d 875 (4th Cir. 1973); Hairston v. Cox, 459 F.2d 1382 (4th Cir. 1972), in neither case cited was there so great, and so unjustified, a potential for prejudice to the Commonwealth. In Garland, for example, it was undisputed that petitioner’s counsel had first been appointed the day of the trial, raising a strong presumption of ineffective assistance. And in Hairston, a case arising prior to Francis v. Henderson, supra, there was ample opportunity to gather evidence pertaining to the long standing practice of unconstitutionally excluding black people from grand jury service. In the present case, in contrast, we have only petitioner’s allegation that he requested an appeal, and that counsel failed to perfect one. Based on this allegation, easily made after 17 years of silence but obviously difficult to disprove, petitioner would have us remand for an evidentiary hearing, where, presumably, the State should be required to rebut what, on its face, is a claim that might entitle petitioner to the relief he seeks. If the State were shown to have a reasonable opportunity to make the kind of factual reconstruction necessary to such a task, that might be another case, but nothing in the record suggests the opportunity exists after a lapse of 17 years. In arriving at our decision, we also give weight to the fact that petitioner makes no effort to explain or to justify the delay. Indeed, he did not even challenge the conviction now before us at the recidivist proceeding itself in 1971, where, generally, the only defense is the invalidity of a previous conviction. Smith v. Superintendent, 214 Ya. 359, 200 S.E.2d 523 (1973). This failure is given added significance in this case because, in response to the State’s contention that he still has available a State habeas corpus remedy by asserting the ineffective assistance of counsel at the 1971 recidivist proceeding, the petitioner here denies that he was ineffectively represented in the recidivist proceeding in 1971, thus admitting effective representation in the very proceeding from which came the sentence he is attacking. Because his admittedly effective counsel did not assert the invalidity of the 1957 conviction, we may only assume that in 1971 the petitioner did not have reason to believe his 1957 conviction was invalid because of any denied right to appeal, and, in the context we find the omission here, it must weigh heavily against the petitioner’s position. It would be strange indeed that an admittedly effective attorney did not assert a good defense, and no explanation for this omission is offered by petitioner. His argument, in explanation, that at that time (1971) he might have proceeded to review this matter either by habeas corpus or by appeal, see Smith, 200 S.E.2d at 524, is belied by the fact that he did not file his State petition for habeas corpus until 1974, some three years after the conviction. And this although he was admittedly represented by a competent attorney. We also note that petitioner is now on parole, thus negating any potential practical disability which might be attached to confinement. We do not downgrade the difficulties these allegations present. But we also cannot ignore the fact that they were largely engendered by the petitioner himself in waiting so long to raise his claims, in circumstances where a detailed factual reconstruction necessary to test the validity of those claims would be most difficult, if not possible. In these circumstances, we hold that petitioner’s objections must be deemed waived. Ill The Show-Up Petitioner claims that a pre-trial identification procedure, at which he was identified as the perpetrator of the robbery, was so unduly suggestive as to create a substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The facts cited in support of this claim were that petitioner was shown singly to the victim of the crime, rather than as part of a line-up, and that several police officers were present as well. To be sure, the show-up may not be a favored procedure. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). But it is equally clear that the use of such a procedure does not necessarily violate due process; such a determination can only be made by reference to the totality of circumstances. Stovall, supra, at 302, 87 S.Ct. 1967. The general allegation advanced by petitioner that the show-up was impermissibly suggestive derives factual support only from the mere fact of the use of the show-up itself. No supporting facts relating to the totality of circumstances are brought to our attention. Surely the fact that police officers were present is insufficient, when the identification occurred in a police station and petitioner was being held on an unrelated charge. We therefore hold that petitioner’s general, unsupported allegations are insufficient to make out a prima facie case of unconstitutional identification. The judgment of the district court denying the writ of habeas corpus is AFFIRMED. . The Virginia recidivist statute is Va.Code Ann. § 53-296. Petitioner has been discharged from his 1957 conviction, and is presently serving sentences for a 1970 conviction for possession and sale of narcotics, and a 1971 conviction for possession of a controlled drug. Although the recidivist statute requires a total of only two convictions to be applicable, we consider the validity of the 1957 conviction to be in issue since it was included in the recidivist information, and could have played a part in the sentence imposed for recidivism. The petitioner is presently on parole. . The Twenty-Fourth Annual Report of the Virginia State Bar For the Year Ending June 30, 1962 shows that Philip Whitfield, the attorney in the 1957 conviction, died during that fiscal year. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_stpolicy

A

What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Dr. Theodore S. BRANDWEIN, Plaintiff-Appellant, v. The CALIFORNIA BOARD OF OSTEOPATHIC EXAMINERS; The California Board of Medical Quality Assurance; The California Department of Consumer Affairs; and Edwin L. Miller, District Attorney for the County of San Diego, State of California, Defendants-Appel-lees. No. 81-5343. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 3, 1982. Decided June 24, 1983. As Amended Aug. 10, 1983. Dr. Theodore S. Brandwein, plaintiff-appellant, pro se. M. Gayle Askren, Deputy Atty. Gen., Greer D. Knopf, San Diego, Cal., Alexander R. Tobin, Upland, Cal., for defendants-ap-pellees. Before SNEED, POOLE, and BOO-CHEVER, Circuit Judges. POOLE, Circuit Judge: Plaintiff-appellant Dr. Theodore S. Brandwein is a physician holding the degree of Doctor of Osteopathy (D.O.). Brandwein challenges the constitutionality of California Law, under which a D.O. may not hold himself out as a Doctor of Medicine (M.D.). He alleges that the law violates the First Amendment and the Equal Protection Clause of the federal constitution. Following the dismissal of these and pendant state claims in district court, Brandwein appeals. Background 1. Allopathy and Osteopathy An understanding of Brandwein's constitutional claims requires some explanation of the development of osteopathy and the state’s attempt to regulate it. Allopathy, as originally understood, was a- system of treating disease based on inducing an opposite reaction in the body. Steadman, Medí cal Dictionary 45 (1976). It has gradually become associated with the type of medicine taught in medical schools awarding a Doctor of Medicine (M.D.) degree. Osteopathy is a school of medicine founded by Dr. Andrew Taylor Still in the late 19th century. It is based on the principal that the body contains its own defense mechanisms against disease and that, through the process of physical manipulation of skeletal and muscular tissues, it may be brought back to health. Steadman, supra, at 1004. While in its early development osteopathy was primarily a drugless, non-surgical form of medical treatment, it has since moved much closer to the allopathic school of medical practice. Oliver v. Morton, 361 F.Supp. 1262, 1264 (N.D.Ga.1973). At the present time the differences between the schools of osteopathy and allopathy are minor; often the same basic curricula and texts are used. Id. Osteopaths are admitted to internships and residencies approved by the American Medical Association (A.M.A.), and local medical associations are allowed to accept osteopaths as members and such osteopaths are then eligible for membership in the A.M.A. Id. California law now provides that “holders of M.D. degrees and D.O. degrees shall be accorded equal professional status and privileges as licensed physicians and surgeons.” Cal.Bus. & Prof.Code § 2453 (West 1974 & Supp.1983) (hereinafter “Medical Practice Act”). 2. Regulation by the State Prior to 1922, the California State Board of Medical Examiners (hereinafter “Medical Board”) was responsible for the licensing and supervision of osteopathic as well as allopathic physicians. Because of continuing tensions between the members of the two groups, the osteopaths sought the creation of an independent Board of Osteopathic Examiners (hereinafter “Osteopathic Board”). In 1922, they succeeded in obtaining passage of an initiative measure which established such a board, with the result that the Medical Board continued to issue licenses to physicians holding an M.D. degree, and the Osteopathic Board began to issue the same license to holders of D.O. degrees, both under identical legislative standards of education and examination. Board of Osteopathic Examiners v. Board of Medical Examiners, 53 Cal.App.3d 78, 81, 125 Cal.Rptr. 619, 621 (Cal.Ct.App.1975). As the two practices become more similar, hostility between them lessened. In 1961, the California Medical Association and the California Osteopathic Association signed an agreement to unify the two organizations. Board of Osteopathic Examiners v. Board of Medical Examiners, 53 Cal. App.3d at 81-82, 125 Cal.Rptr. at 621. The agreement provided that arrangements would be made to provide existing osteopaths in California with an M.D. degree. They would then have become subject to the jurisdiction of the Medical Board. At the same time, the Osteopathic Board was to be stripped of its power to license any new osteopaths. The parties agreed to jointly sponsor legislation to achieve these ends. As part of the agreement, the sole school of osteopathy in California, the College of Osteopathic Physicians and Surgeons, was converted to a medical school, and is presently known as the University of California Medical School at Irvine. It was then arranged for this new medical school to issue M.D. degrees to those doctors of osteopathy presently licensed to practice in California. See Osteopathic Physicians & Surgeons v. Cal. Medical Assn., 224 Cal.App.2d 378, 392, 36 Cal.Rptr. 641, 649 (Cal.Ct.App.1964). The state legislature then amended § 2275 of the Medical Practice Act to permit licensees of the Osteopathic Board holding an M.D. degree issued prior to September 30, 1962 to use the term M.D. Approximately 2,500 osteopaths employed this one-time opportunity to become M.D.s. Board of Osteopathic Examiners v. Board of Medical Examiners, 53 Cal.App.3d at 83, 125 Cal.Rptr. at 622. Finally, the two organizations were successful in gaining the passage of an initiative by the voters entitled the Osteopathic Act of 1962. This Act placed the newly-created M.D.s under the jurisdiction of the Medical Board and barred licensing of new osteopaths in the state. See Osteopathic Act of 1962, Stats. 1st Ex.Sess.1962, ch. 48. Then, in 1974, this framework of cooperation collapsed when the California Supreme Court declared the 1962 Act unconstitutional. In D’Amico v. Board of Medical Examiners, 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10 (Cal.1974), the state Supreme Court held that the 1962 initiative Act’s prohibition of future licensing of osteopaths violated the Equal Protection Clause of both the federal and state constitutions, because the state could not demonstrate a rational relation to a legitimate governmental objective. D’Amico v. Board of Medical Examiners, 11 Cal.3d 24, 112 Cal.Rptr. at 803, 520 P.2d 10. Following the D’Amico decision, the Osteopathic Board resumed granting licenses to osteopaths under its original authority granted by the 1922 Act, and the two Boards, the Medical Board and the Osteopathic Board, resumed their traditional practice of separate jurisdiction and authority over their licensees. 3. Claims raised by Dr. Brandwein Dr. Brandwein received a D.O. degree from the Kansas City College of Osteopathic Medicine. In 1975 he was licensed as a physician and surgeon by the Osteopathic Board pursuant to § 2450 of the Medical Practice Act. Brandwein then apparently began representing himself as an M.D., even though he had not received that degree from a medical school. In 1979 the District Attorney’s Office for the County of San Diego charged Dr. Brandwein with misrepresenting himself as an M.D. in violation of § 2054 of the Medical Practice Act. The charges were later dropped. Shortly afterwards, Dr. Brandwein brought this action against the appellees. Brandwein essentially raised three claims: (1) that the existing state regulatory scheme, which prevents him from using the title “M.D.,” violates his right to free expression under the First Amendment; (2) that the California Medical Practice Act is in violation of the Equal Protection Clause because it permits graduates of foreign medical schools and osteopaths who participated in the 1961-62 merger between the medical and osteopathic professions to use the title “M.D.” in California, while denying him the same privilege; and (3) that the regulations promulgated by the Osteopathic Board at Title 16, §§ 1606, 1695 of the California Administrative Code (which requires osteopaths to display the term “D.O.” outside their offices and provides for continuing education courses for osteopaths), violate the California Administrative Procedure Act because they are in excess of the powers committed to the Osteopathic Board. I. The First Amendment Claim Dr. Brandwein asserts that the state regulatory scheme violates the First Amendment because he is forced to identify himself by the title “D.O.,” which is associated with a particular philosophy of medical practice. Instead, Dr. Brandwein claims that his personal philosophy of medicine is best reflected by the title “M.D.” and that he should be able to express himself by using that term. The district court rejected Dr. Brandwein’s claim, holding that “the state simply intends every person engaged in some professional activity to properly represent himself in his true capacity and by an appropriate title.” Notwithstanding Dr. Brandwein’s attempt to characterize the degrees as terms of medical philosophy, the M.D. and D.O. titles are degrees conferred by academic institutions; and the use of the title M.D. or D.O. constitutes a representation to the public concerning the particular educational qualifications of the holder. We note also that to the extent Dr. Brandwein is correct in that such a degree identifies its holder with a particular school of medical thought, that association arises because the individual chose to attend that school. Because the use of a degree is in effect a representation to the public concerning the holders academic training and qualifications, one which the public may rely on in selecting a physician, it is closer to a form of commercial speech than a philosophical statement. See In Re Primus, 436 U.S. 412, 438 n. 32, 98 S.Ct. 1893, 1908 n. 32, 56 L.Ed.2d 417 (1978); Central Hudson Gas v. Public Service Commission of New York, 447 U.S. 557, 563-64, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980). And in dealing with commercial speech, the Supreme Court has emphasized that “restrictions on false, deceptive, and misleading commercial speech” are permissible. Friedman v. Rogers, 440 U.S. 1, 9, 99 S.Ct. 887, 894, 59 L.Ed.2d 100 (1980). See also E.F. Drew & Co. v. Federal Trade Commission, 235 F.2d 735, 740 (2d Cir.1956), cert. denied, 352 U.S. 969, 77 S.Ct. 360, 1 L.Ed.2d 323 (1957) (no constitutional right to disseminate false or misleading advertisements). Accordingly, we find that Dr. Brandwein’s First Amendment rights are not violated by the state’s refusal to allow him to hold himself out to the public under a degree which he has not earned. Oliver v. Morton, 361 F.Supp. 1262, 1269-70 (N.D.Ga.1973). II. The Equal Protection Claims Dr. Brandwein contends that he is being denied equal protection of the laws because three distinct groups of medical licensees in California have been permitted electively to use the title “M.D.” while the same privilege has been denied him. In effecting this discrimination, Dr. Brandwein alleges, the state not only violates its own statutory policy of according equal professional status and privileges to holders of M.D. degrees and D.O. degrees, but the effect is professional and economic detriment. The three classes granted favored treatment identified by Dr. Brandwein are: (1) Foreign-educated doctors who had not been granted the “M.D.” degree by their medical schools; (2) Osteopathic physicians educated in the United States who had been granted the “M.D.” degree in California as part of the attempted merger between the two fields in 1961-62; (3) Graduates of osteopathic schools who had obtained private legislation from the California legislature providing for their licensing by the Medical Board. In reviewing Dr. Brandwein’s equal protection claims, we note initially that the proper standard for such review is the rational basis test. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976). Strict scrutiny is the proper test of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. Id. The claim here does not involve either of those circumstances. In Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 942-43, 59 L.Ed.2d 171 (1979), the Supreme Court reiterated the basis of the rational relation test: The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. Thus, we will not overturn such a statute unless the varying treatment of different persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational. In general, the Court has been especially deferential to legislative classifications in eases of challenges to the state regulation of licensed professions. See, e.g., Watson v. Maryland, 218 U.S. 173, 30 S.Ct. 644, 54 L.Ed. 987 (1910); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). See also Ohralik v. State Bar Assn., 436 U.S. 447, 460, 98 S.Ct. 1912, 1920-21, 56 L.Ed.2d 444 (1978) (“the State bears a special responsibility for maintaining standards among members of the licensed professions”). In applying the rational relation test, the Court has also stressed the heavy procedural burden placed upon the plaintiff in proving his case. The plaintiff in a challenge to a legislative classification, reviewed under this standard, must prove that the facts on which the legislature may have relied in shaping the classification “could not reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley, 440 U.S. at 111, 99 S.Ct. at 949. “The admission that facts are arguable” is enough to justify the legislative judgment. Id. at 112, 99 S.Ct. at 950. And in reviewing the rationality of the classification, a court may hypothesize legislative purposes: “where there are plausible reasons for Congress’ action, our inquiry is at an end. It is, of course, ‘constitutionally irrelevant whether this reasoning in fact underlay the legislative decision,’ Flemming v. Nestor, 363 U.S. [603], at 612 [80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435], because this Court has never insisted that a legislative body articulate its reasons for enacting a statute.” United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980). Accordingly, the district court acted properly in dismissing Dr. Brandwein’s equal protection claim if there is a conceivable legitimate purpose which would justify the distinctions made in the state’s regulatory scheme. See Lamb v. Scripps College, 627 F.2d 1015, 1021 (9th Cir.1980). 1. Osteopaths permitted to become M.D.s in the 1961-62 merger Dr. Brandwein asserts that § 2275 of the Medical Practice Act violates the Equal Protection Clause because it permits those osteopaths whose D.O.s were “converted” to M.D.s during the short-lived merger in 1961-62 now to use the “M.D.” title while denying him the same privilege. This distinction is claimed to be irrational because if the state is truly concerned with disclosure of a physician’s actual educational qualifications, no reason exists to treat Dr. Brandwein any differently from the 2,500 osteopaths who took advantage of the opportunity to convert their degrees in 1961-62. It is undeniable that there is an inconsistency between the state’s position reflected in § 2275 of the Medical Practice Act, the basis for a wholesale conversion of D.O.s to M.D.s, and the position presently enforced by the state, that post 1974 licentiates of the Osteopathic Board may not acquire the suffix “M.D.” This is an anomaly resulting from the convoluted history of the relationship between the osteopathic and medical professions in the State of California. In 1961-62, there can be little doubt that California’s plan to “grandfather” existing osteopaths into the ranks of M.D.s was rationally related to the state’s broader plan of prohibiting future licensing of osteopaths and merging the two professions. That overall plan was aborted in 1974 when the California Supreme Court concluded that the plan unconstitutionally denied equal protection insofar as it prohibited future licensing of osteopaths in the state. D’Ami-co v. Board of Medical Examiners, 11 Cal.3d 1, 22, 112 Cal.Rptr. 786, 801, 520 P.2d 10 (Cal.1974). When the two professions resumed their traditional practice of separate licensing and regulation following the D’Amico decision, the 2,500 converted M.D.s were not forced to surrender their new-found standing as M.D.s and return to using the title D.O. The resulting distinction, that osteopaths licensed prior to 1962 and who took advantage of the conversion offer may now use the M.D. title while others, such as Dr. Brandwein, are prohibited from doing the same, could best be described as an accident of history. That does not make the legislative decisions involved in creating that distinction irrational, however. It is conceded that legislative decision to merge the two professions in 1962 bore a rational relation to a legitimate state interest. Nor is the later legislative decision to return to the traditional separation of the professions, in light of the D’Amico decision, challenged as an “irrational choice” by appellant. Dr. Brandwein’s position is essentially that since the legislature once permitted osteopaths to adopt the title M.D., it became thereby obligated in perpetuity to grant all future osteopaths the same privilege. The implication that the Equal Protection Clause prohibits the legislature from ever taking inconsistent or differing approaches to a particular problem is contrary to the very premise of the rational relation test. The Supreme Court has stressed that the legislature may take piecemeal steps which only partially ameliorate a perceived evil and create some disparate treatment of affected parties. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466, 101 S.Ct. 715, 725, 66 L.Ed.2d 659 (1981); Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955); New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976). The state does not violate the Equal Protection Clause “merely because the classification made by its laws are imperfect.” Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 316, 96 S.Ct. 2562, 2568, 49 L.Ed.2d 520 (1976), quoting Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). 2. Graduates of Foreign Medical Schools Dr. Brandwein also raises an equal protection claim based on the differences in treatment accorded under state law between osteopaths and graduates of foreign medical schools. Graduates of foreign medical schools who do not have degrees which translate to “Doctor of Medicine” or “Doctor” or to similar wording may still be accorded the M.D. designation if licensed by the Medical Board. See Medical Practice Act, § 2055. Because osteopaths fall under the exclusive regulatory jurisdiction of the Osteopathic Board, no similar method allows Dr. Brandwein to qualify for the M.D. title. He asserts that the state has thereby drawn an irrational distinction between domestic osteopaths and foreign medical school graduates. We hold that Dr. Brandwein’s equal protection rights have not been violated by the provision for differing licensure procedures for those who attend foreign medical schools. All that is needed for this court to uphold the state regulatory scheme is to find that there are “plausible,” United States Railroad Retirement Board v. Fritz, 449 U.S. at 179, 101 S.Ct. at 461, “arguable," Vance v. Bradley, 440 U.S. 112, 99 S.Ct. at 950, or “conceivable," id. at 111, 99 S.Ct. at 949-50, reasons which may have been the basis for the distinction. Whether these reasons in fact underlay the legislative action is “constitutionally irrelevant.” Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960). At the outset, we note that the issue is not whether osteopaths are less competent in the art of healing than M.D.s, whether trained abroad or in the United States. Appellees have not alleged that osteopaths are less competent than M.D.s, and numerous courts faced with the same issue have found that osteopaths are equally qualified as graduates of medical schools to perform the practice of medicine. Maceluch v. Wy-song, 680 F.2d 1062, 1065 (5th Cir.1982); Oliver v. Morton, 361 F.Supp. at 1268; D’Amico v. Board of Medical Examiners, 11 Cal.3d at 802, 112 Cal.Rptr. at 22, 520 P.2d 10. In California, the regulatory framework ensures that osteopaths and M.D.s are equally qualified to practice medicine. Defendants conceded that all physicians and surgeons, whether licensed by the Medical Board or the Osteopathic Board must comply with the same examination requirements under the Medical Practice Act. See Medical Practice Act § 2080; Gamble v. Board of Osteopathic Examiners, 21 Cal.2d 215, 217, 130 P.2d 382, 383-84 (Cal.1942). It is also not in dispute that foreign medical graduates often hold degrees which differ from the traditional “M.D.” or “Doctor of Medicine” degree in this country, yet are granted the privilege of using the title “M.D.” See Medical Practice Act § 2100 et seq. Further, the training received by foreign medical graduates may differ substantially from that received by graduates of United States medical schools, and in California this difference is deemed sufficient to warrant extensive regulations governing the premedical and medical education requirements, as well as the clinical training and hospital service requirements of foreign medical school graduates. See Medical Practice Act § 2101; 16 Cal.Adm.Code §§ 1322-25. We think the central issue is not competency, but rather whether there exists a difference in training or philosophy between medical schools and osteopathic schools which is “arguably” or “plausibly” a legitimate basis for the classification made by the legislature. Vance v. Bradley, 440 U.S. at 112, 99 S.Ct. at 950; Flemming v. Nestor, 363 U.S. at 612, 80 S.Ct. at 1373. We believe such a difference exists. Un-contradicted testimony before the district court established that, in addition to testing for competency in all areas of medical practice, the Osteopathic Board also tests the candidate’s understanding of osteopathic concepts. This area is not examined by the Medical Board. The additional area of examination reflects the mandatory training in osteopathic techniques and theory at schools of osteopathic medicine, which is not mandatory at allopathic medical schools. Maceluch v. Wysong, 680 F.2d at 1066; Oliver v. Morton, 361 F.Supp. at 1264-65. This difference in curriculum reflects the long history of the separate philosophy associated with osteopathic medicine, and provides the osteopathic physician with a unique and distinct educational training which may affect “not only the aggregate of his substantive knowledge of clinical techniques, but also his judgment as to the need for, and nature of, treatment.” Maceluch v. Wysong, 680 F.2d at 1066. See also Oliver v. Morton, 361 F.Supp. at 1268; Eatough v. Altano, 673 F.2d 671, 676-77 (3d Cir.), cert. denied, 457 U.S. 1119, 102 S.Ct. 2931, 73 L.Ed.2d 1331 (1982). The fact that D.O.s have been uniquely trained in osteopathic, manipulative techniques, preferred by some members of the public, suggests that the designation of the degree M.D. or D.O. helps the public in selecting a physician. Eatough v. Albano, 673 F.2d at 676; Oliver v. Morton, 361 F.Supp. at 1268. The fact that foreign medical school graduates are permitted to use the M.D. degree in no way undermines the rationality of the legislature’s decision that osteopaths be distinguished from graduates of medical schools. There might well be a plausible equal protection claim if graduates of foreign osteopathic schools were permitted to use the M.D. title in California; but in this case, no such showing has been made. The legislative decision to allow foreign medical graduates to use the M.D. title is consistent with the rational conclusion that osteopaths have different training from M.D.’s and should be identified as such. “[I]t does not follow that osteopaths and graduates of foreign medical schools must be treated alike simply because foreign graduates, like [the plaintiff], may not have had educational backgrounds identical to those attending American medical schools granting M.D. degrees.” Maceluch v. Wysong, 680 F.2d at 1068. It is the differences in general philosophy, manifested by the additional training in osteopathic schools, which motivates the basic distinction between M.D.s, whether foreign or domestic medical school graduates, and osteopathic school graduates. Dr. Brandwein’s reliance on Oliver v. Morton, 361 F.Supp. 1262 (N.D.Ga.1974) is unavailing. Oliver involved a successful equal protection challenge to the medical licensing scheme in Georgia. There all physician licenses were issued by a Composite Medical Board and the Board permitted graduates of foreign medical schools to use the term M.D. while denying the same privilege to osteopaths. A three-judge court rejected the two possible rationales suggested by the state for such disparate treatment. The state first argued that the degrees conferred by foreign medical schools were substantially equivalent to the M.D. degree; the court, however, found that the D.O. degree was also substantially equivalent. The state also argued that foreign medical school degrees may confuse the public; the court determined that D.O. degrees suffered the same deficiency. Oliver, however, is distinguishable from this case. First, the regulatory framework is different: while Georgia had no provision explicitly providing for the licensing of foreign medical school graduates, California has extensive educational, clinical, and examination requirements which must be satisfied. See Medical Practice Act §§ 2101, 2102. Further, the Oliver court chose not to stress the interest the public has in selecting a medical practitioner and of being fully informed of the physician’s training and philosophy. We find this to be a valid classification, even if particular individuals such as Dr. Brandwein no longer accept the principles of osteopathy. Massachusetts Board of Retirement v. Murgia, 427 U.S. at 316, 96 S.Ct. at 2568. In short, we cannot say that the district court erred in finding that a rational relationship exists between the separate classifications of D.O.s and M.D.s, and a plausible or conceivable difference between the training received by holders of those degrees which may affect the public’s choice of physicians. That is all that is required by the Equal Protection Clause. Minnesota v. Glover Leaf Creamery Co., 449 U.S. at 462, 101 S.Ct. at 723. 3. Osteopaths who have obtained private legislation Dr. Brandwein further alleges that he has been denied equal protection of the laws because certain individuals have obtained special legislation from the state legislature permitting them to use the title M.D. despite the fact that they received degrees as Doctors of Osteopathy. The procedural history of this claim differs from that of the other equal protection claims. The first two equal protection claims were raised as separate counts in Dr. Brandwein’s six-count complaint filed with the district court. Following the defendants’ motions to dismiss, Dr. Brandwein moved for summary judgment. In the affidavit filed in support of plaintiff’s motion for summary judgment, Dr. Brandwein raised the additional issue of osteopaths who had obtained special legislation. He did not seek to amend his original complaint to include this additional issue. The district court then dismissed each count of Dr. Brandwein’s complaint and also, without comment, denied the motion for summary judgment. If this were a separate claim for relief, we would be without jurisdiction to pass on it, because it was not properly raised before the district court. See Fed.R.Civ.P. 15(a); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1474 (1971). Without an amendment to the complaint incorporating this new issue, it was not before the district court for judgment and is not now reviewable by this court, at least insofar as we review the correctness of the district court’s order of dismissal. This issue may, however, be construed as an additional argument or theory in support of the more general equal protection claim raised by Dr. Brandwein. Because the new argument was not raised by amendment to the complaint, but rather in an affidavit in support of plaintiff’s motion for summary judgment, a different standard of review applies. To find the district court’s denial of plaintiff’s motion for summary judgment to be erroneous, we must find that plaintiff demonstrated that no genuine issue of material fact remained on this point. Given the meager nature of the allegations raised by Dr. Brandwein, we cannot so hold. In the affidavit, Dr. Brandwein alleges at paragraphs 12 and 51 that some osteopathic graduates have been licensed by the Medical Board and use the title M.D., through special legislation or statutory interpretation. No further information is given. This is insufficient to support a summary judgment motion, Fed.R.Civ.P. 56; 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2738, at 438, and the district court properly denied the motion. Further, the only instance of special legislation noticed to this court was closely related to the unique historical circumstances surrounding the attempted merger of the osteopathic and medical fields and the later court invalidation of that merger. See Board of Osteopathic Examiners v. Board of Medical Examiners, 53 Cal.App.3d 78, 82, 125 Cal.Rptr. 619 (Cal.Ct. App.1975). As our previous discussion of the merger attempt indicates, the now seemingly inconsistent legislative positions taken on the granting of M.D. titles to osteopaths cannot be deemed irrational choices. III. Application of the Burford Abstention Doctrine The district court dismissed with prejudice Dr. Brandwein’s challenge to the regulations promulgated by the Osteopathic Board on the ground that abstention was appropriate under the principles set out in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). It appears that invocation of the abstention doctrine was unnecessary in this case. Aside from one equal protection claim, properly rejected by the district court, plaintiff contests the regulations principally on state law grounds. The regulations are claimed to violate the California Administrative Procedure Act, because they fail to refer to the statutory authority under which they were adopted, and because they are in excess of the authority granted to the Osteopathic Board. As such, these are state law pendant claims which should have been dismissed without prejudice when the federal claims were dismissed. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Lamb v. Scripps College, 627 F.2d at 1018; 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3567 (1975 & Supp.1982). Even if the district court were correct in dismissing under the Burford doctrine, the dismissal should have been without prejudice. See Santa Fe Land Improvement Co. v. City of Chula Vista, 596 F.2d 838 (9th Cir.1979). Accordingly, we remand to the district court with instructions to dismiss without prejudice Counts Five and Six, the challenges to the Osteopathic Board regulations. Conclusion The district court properly dismissed Dr. Brandwein’s complaint insofar as it challenged the state’s denial of the title “M.D.” under the First Amendment and the Equal Protection Clause. As a number of other courts have noted, it may be that the desired relief from the “onus” of the D.O. degree lies more properly in a program of public education by osteopaths themselves than in court-ordered remedies. See Mace-luch v. Wysong, 680 F.2d 1069; Oliver v. Morton, 361 F.Supp. at 1268. Accordingly, we affirm the district court’s dismissal of counts One to Four of the Complaint and the denial of plaintiff’s motion for summary judgment. We reverse the district court’s dismissal with prejudice of counts Five and Six, pertaining to state regulatory challenges, and remand with instructions to dismiss those counts without prejudice. AFFIRMED in part, and REVERSED and REMANDED in part. . In England, medical school graduates receive an M.B. degree; in Scotland, a “Conjoint Certificate”; in Ireland, an “M.B.B.S.;” Norway, a “Candidate in Medicine;” and in Spain, a “Licentiate in Medicine & Surgery.” . The California Supreme Court, in D’Amico v. Board of Medical Examiners, 11 Cal.3d 22, 112 Cal.Rptr. 786, 520 P.2d 10 (1974), did not determine otherwise. It determined only that osteopathy constituted a legitimate and complete school of medicine which could not be completely banned from the state; the Court reserved the issue of whether there were significant differences in emphasis and quality between osteopathic and allopathic training. 112 Cal.Rptr. at 803, 11 Cal.3d at 24, 520 P.2d 10. . It is not certain on this record that schools of osteopathic medicine exist outside the United States. See Maceluch v. Wysong, 680 F.2d 1062, 1067 (5th Cir.1982). . Dr. Brandwein claimed that the regulation requiring osteopaths to display the title D.O. outside their office is a violation of equal protection because the Medical Board has no comparable regulation. The district court dismissed this claim without discussion. Since members of the public may assume that all physicians hold an M.D. degree, the state, as suggested above, has an interest in making sure that they are informed of a physician’s actual educational background. Therefore, the regulation clearly appears to satisfy the rational relation test. . The regulations challenged by plaintiff are: 16 Cal.Adm.Code §§ 1606 (public display at medical office of D.O. degree), 1695 (continuing medical education for osteopaths), and 1695.-1-.4 (delegation of regulatory authority to Osteopathic Board). . Because we affirm the dismissal of all counts of the complaint against all parties, we need not reach the correctness of the district court’s dismissal of all claims against the California Department of Consumer Affairs. Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer: